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Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by Justice Stevens in his concurring opinion in There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Justice Stevens saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I can only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was the holding in Union Gas, which the Court now overrules and repudiates. The fault I find with the majority today is not in its decision to reexamine Union Gas, for the Court in that case produced no majority for a single rationale supporting congressional authority. Instead, I part company from the Court because I am convinced that its decision is fundamentally mistaken, and for that reason I respectfully dissent. * I It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress. The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction;[1] there was no unanimity, but in due course the Court in answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases. The adoption of the Eleventh Amendment soon changed the result in not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the *102 Eleventh Amendment did not affect federal-question jurisdiction, a notion that needs to be understood for the light it casts on the soundness of `s holding that States did enjoy sovereign immunity in federal-question suits. The Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal-question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of `s reasoning is underscored by its clear inconsistency with the Founders' hostility to the implicit reception of common-law doctrine as federal law, and with the Founders' conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives. The Court's answer today to the third question is likewise at odds with the Founders' view that common law, when it was received into the new American legal system, was always subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common-law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again. Beyond this third question that elicits today's holding, there is one further issue. To reach the Court's result, it must not only hold the doctrine to be outside the reach of Congress, but must displace the doctrine of Ex parte 209 U.S. 1 that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing `s jurisdictional doctrine withstand scrutiny. A The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is *103 not bound by the law's provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e. g., Suits Against Governments and Officers: Sovereign Immunity,[2] The one rule limits the |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | Governments and Officers: Sovereign Immunity,[2] The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high Middle Ages. "At least as early as the thirteenth century, during the reign of Henry (1216-1272), it was recognized that the king could not be sued in his own courts." C. Eleventh Amendment and Sovereign Immunity 5 (1972). See 3 W. Blackstone, Commentaries *244-*245; The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, *104 Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction. See Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | focused entirely on the limits of the judicial power provided in Article And although the jurisdictional bases together constituting the judicial power of the national courts under 2 of Article included questions arising under federal law and cases between States *105 and individuals who are not citizens,[3] it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered.[4] Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra, 42-150; for now it is enough to say that there was no consensus on the issue. See State 473 U.S. 4, ; ; There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was clear: the *106 debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have been any apparent justification for any such argument, since no clause in the proposed (and ratified) Constitution even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article would not alter States' pre-existing common-law immunity despite its unqualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article or any other provision would "constitutionalize" state sovereign immunity, and no one uttered any such contention. B The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpretation that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Georgia was accordingly held subject to the judicial power in a common-law assumpsit action by a South Carolina citizen suing to collect a debt.[5] The case settled, by implication, *107 any question there could possibly have been about recognizing state sovereign immunity in actions depending on the federal question (or "arising under") |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | in actions depending on the federal question (or "arising under") head of jurisdiction *108 as well. The constitutional text on federal-question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of any influence that general common-law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal-question language of Article than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling v Louisiana, Although Justice Iredell's dissent in seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As Justice Stevens persuasively explains in greater detail, ante, 8-81, Justice Iredell's dissent focused on the construction of the Judiciary Act of 1, not Article See Orth, The Truth About Justice Iredell's Dissent in 73 N. C. L. Rev. 255 This would have been an odd focus, had he believed that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell's view, States sued in diversity retained the common-law sovereignty "where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." While in at least some circumstances States might be held liable to "the authority of the United States," any such liability *109 would depend upon "laws passed under the Constitution and in conformity to it," ibid.[6] Finding no congressional action abrogating Georgia's common-law immunity, Justice Iredell concluded that the State should not be liable to suit.[7] C The Eleventh Amendment, of course, repudiated and clearly divested federal courts of some jurisdiction as to cases against state parties: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." There are two plausible readings of this provision's text. Under the first, it simply repeals the Citizen-State Diversity *110 Clauses of Article for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, furnishes authority for the Court's view in today's case, but we need to choose between the competing readings for the light that will be shed on the doctrine and the legitimacy of inflating that doctrine to the point of constitutional immutability as the Court has chosen to do. The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses.[8] In precisely tracking the language in Article providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common *111 sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federalquestion suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post- proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect: "[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States." Gazette of the United States 303 With its references to suits by citizens as well as noncitizens, the Sedgwick amendment would necessarily have been applied beyond the Diversity Clauses, and for a reason that would have been wholly obvious to the people of the time. Sedgwick sought such a broad amendment because many of the States, including his own, owed debts subject to collection under the Treaty of Paris. Suits to collect such debts would "arise under" that Treaty and thus be subject to federal-question jurisdiction under Article Such a suit, indeed, was then already pending against Massachusetts, having been brought in this Court by Christopher Vassal, an erstwhile Bostonian whose move to England on the eve of revolutionary hostilities had presented his former neighbors with the irresistible temptation to confiscate his vacant mansion. 5 Documentary History of the Supreme Court of the United States, 1-1800, pp. 352-449[9] *112 Congress took no action on Sedgwick's proposal, however, and the Amendment as |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | no action on Sedgwick's proposal, however, and the Amendment as ultimately adopted two years later could hardly have been meant to limit federal-question jurisdiction, or it would never have left the States open to federal-question suits by their own citizens. To be sure, the majority of state creditors were not citizens, but nothing in the Treaty would have prevented foreign creditors from selling their debt instruments (thereby assigning their claims) to citizens of the debtor State. If the Framers of the Eleventh Amendment had meant it to immunize States from federal-question suits like those that might be brought to enforce the Treaty of Paris, they would surely have drafted the Amendment differently. See Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, It should accordingly come as no surprise that the weightiest commentary following the Amendment's adoption described it simply as constricting the scope of the CitizenState Diversity Clauses. In for instance, Chief Justice Marshall, writing for the Court, emphasized that the Amendment had no effect on federal courts' jurisdiction grounded on the "arising under" provision of Article and concluded that "a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case." The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, *113 not "to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation." 7. The treatment of the Amendment in was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. "The eleventh amendment of the constitution has exempted a State from the suits of citizens of other States, or aliens," Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment's unconditional language ("shall not be construed") makes no distinction between trial and appellate jurisdiction.[10] And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | when brought against the State in its own name by a *114 private plaintiff for money damages. See, e. g., Commonwealth Edison ; Minneapolis Star & Tribune The best explanation for our practice belongs to Chief Justice Marshall: the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship. See State 473 U. S., 94 ; Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, Yale L. J. 1, 44 (18). In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coherence with this Court's practice, with the views of John Marshall, with the history of the Amendment's drafting, and with its allusive language. Today's majority does not appear to disagree, at least insofar as the constitutional text is concerned; the Court concedes, after all, that "the text of the Amendment would appear to restrict only the Article diversity jurisdiction of the federal courts." Ante, at 54.[11] Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no possible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen lawsuits *115 against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so.[12] Because the plaintiffs in today's case are citizens of the *116 State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says their suit is barred from a federal court.[13] II The obvious place to look elsewhere, of course, is and was indeed a leap in the direction of today's holding, even though it does not take the Court all the way. The parties in raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without *117 more, permits a State to plead sovereign immunity to bar the exercise of federal-question jurisdiction. See Although the Court invoked a principle of sovereign immunity to cure what it took to be the Eleventh Amendment's anomaly of barring only those state suits brought by noncitizen plaintiffs, the Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress's power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity recognized in had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with `s holding that a principle of sovereign immunity derived from the common law insulates a State from federal-question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded.[14] It follows that the Court's further step today of constitutionalizing `s rule against abrogation by Congress compounds and immensely magnifies the century-old mistake of itself and takes its place with other historic examples of textually untethered elevations of judicially derived rules to the status of inviolable constitutional law. A The Louisiana plaintiff in held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruction era to finance public improvements aimed at stimulating *118 industrial development. E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, pp. 383-384 (18); -1977. As Reconstruction governments collapsed, however, the postReconstruction regimes sought to repudiate these debts, and the litigation arose out of Louisiana's attempt to renege on its bond obligations. sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal-question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federalquestion jurisdiction. Indeed, Bradley explicitly admitted that "[i]t is true, the amendment does so read [as to permit 's suit], and if there were no other reason or ground for abating his suit, it might be maintainable." The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. The |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | subject to federal jurisdiction at its own citizen's behest. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased. thus addressed the issue implicated (though not directly raised) in the preratification debate about the CitizenState Diversity Clauses and implicitly settled by : whether state sovereign immunity was cognizable by federal *119 courts on the exercise of federal-question jurisdiction. According to and contrary to it was. But that is all that held. Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that held state sovereign immunity to have attained some constitutional status immunizing it from abrogation.[15] Taking only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen's federal-question suit, but not one brought by a noncitizen. See There was, however, no such anomaly at all. As already explained, federalquestion cases are not touched by the Eleventh Amendment, which leaves a State open to federal-question suits by citizens and noncitizens alike. If had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana. Although there was thus no anomaly to be cured by the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alternative process to vindicate federal law (see Part IV, infra ) John Marshall saw just what the consequences of this anomaly would be in the early Republic, and he took that consequence as good evidence that the Framers could never have intended such a scheme. *120 "Different States may entertain different opinions on the true construction of the constitutional powers of congress. We know that, at one time, the assumption of the debts contracted by the several States, during the war of our Revolution, was deemed unconstitutional by some of them. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist." -387. And yet that is just what threatened to do. How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explanation. As I have already said, was one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States' favor came with the Compromise of 1877, when the Republican Party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes. See J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 53-57 (17); 978 *121 12; see generally Foner, Reconstruction, at -587 (describing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Contract Clause suits like the one brought by thus presented this Court with "a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments." Indeed, Louisiana's brief in unmistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State: "The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment." Brief for Respondent in No. 4, O. T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Court found a way to avoid the certainty of the State's contempt.[16] *122 So it is |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | the certainty of the State's contempt.[16] *122 So it is that history explains, but does not honor, The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested.[17] Before *1 considering those errors, it is necessary to address the Court's contention that subsequent cases have read into what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress. B The majority does not dispute the point that had no occasion to decide whether Congress could abrogate a State's immunity from federalquestion suits. The Court insists, however, that the negative answer to that question that it finds in and subsequent opinions is not "mere obiter dicta, but rather the well-established rationale upon which the Court based the results of its earlier decisions." Ante, at 66-67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court's opinion says, immediately after its discussion of stare decisis, that "[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment." Ante, at 67. This cannot be the "rationale," though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone *124 cannot bar a federal-question suit against a State brought by a state citizen. See, e. g.,[18] Indeed, as I have noted, Justice Bradley's opinion in conceded that might successfully have pursued his claim "if there were no other reason or ground [other than the Amendment itself] for abating his suit." The Court, rather, held the suit barred by a nonconstitutional common-law immunity. See The "rationale" which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of 321-3 There, the Court said that "we cannot rest with a mere literal application of the words of 2 of Article or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States."[19] This statement certainly is true to which *125 clearly recognized a pre-existing principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal-question suits against a nonconsenting State. That was the "rationale" which was sufficient to decide and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went. The majority, however, would read the "rationale" of and its line of subsequent cases as answering the |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | of and its line of subsequent cases as answering the further question whether the "postulate" of sovereign immunity that "limit[s] and control[s]" the exercise of Article jurisdiction, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this See, e. g., Pennhurst State School and ; Ex parte New York, These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court.[20] But this *126 is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, see, e. g., 491 U.S. 2,[21] or have suggested that the immunity is not of constitutional stature. The very language quoted by the majority from for example, likens state sovereign immunity to other "essential postulates" such as the rules of justiciability. 292 U.S., Many of those rules, as Justice Stevens points out, are prudential in nature and therefore not unalterable by Congress. See ante, at 88-90.[22] More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante, 2, "postulate," or "implicit limitation," (17) and as resting on the "inherent nature of sovereignty," Great Northern Life Ins. rather than any explicit constitutional *127 provision.[] But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very different thing from reading them into the Founding Document itself. The most damning evidence for the Court's theory that rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disregard the post- dicta in cases where that dicta would have mattered.[24] If it is indeed true that "private suits against States [are] not permitted under Article (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U. S., then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., State 473 U. S., at 8 After all, consent of a party is in all other instances wholly insufficient to create subjectmatter *128 jurisdiction where it would not otherwise exist. See, e. g., U.S. 393, 3 ; see E. Chemerinsky, Federal Jurisdiction 7.6, p. 405 (noting that "allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in rejecting an interpretation of the Eleventh Amendment's text that would bar federal-question suits. See If "the whole sum of the judicial power granted by the Constitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent," 2 U.S. 311, and if consent to suit in state court is not sufficient to show consent in federal court, see 41, then Article would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post- dicta in that sort of case and exercised the jurisdiction that the plain text of Article provides. See, e. g., Fulton 6 U.S. 325 ; see If these examples were not enough to distinguish `s rationale of a pre-existing doctrine of sovereign immunity from the post- dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when 5 of the Fourteenth Amendment has no application. A majority of this Court was willing to make that assumption in in and in County of[25] Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if, at that time, today's majority's view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seriously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and on the ground that the statutes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U.S. C. 2701 et seq. (IGRA). Such a course would have been wholly irresponsible if, as the majority now claims, the constitutionally unalterable nature of immunity had been well established for a hundred years. itself recognized that an |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | well established for a hundred years. itself recognized that an "observation [in a prior case that] was unnecessary to the decision, and in that sense extra judicial ought not to outweigh" present reasoning that points to a different 134 U.S., 0. That is good advice, which Members of today's majority have been willing to heed on other occasions. See, e. g., 1 U.S. 375, ; 6 U.S. 442, But because the Court disregards this norm today, I must consider the soundness of `s original recognition of a background principle of sovereign immunity that applies even in federal-question suits, and the reasons that counsel against the Court's extension of `s holding to the point of rendering its immunity unalterable by Congress. Three critical errors in weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Court misread the Eleventh Amendment, see 18-1. It misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it. A There is and could be no dispute that the doctrine of sovereign immunity that purported to apply had its origins in the "familiar doctrine of the common law," The Siren, "derived from the laws and practices of our English ancestors," United[26] Although statutes came to affect its importance *131 in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (17). Here, as in the mother country, it remained a common-law rule. See generally 77 Harv. L. Rev., -19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L. J. 1, 17-41 (1926). This fact of the doctrine's common-law status in the period covering the founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Court and it should do the same for the Court today. For although the Court has persistently assumed that the common law's presence in the minds of the early Framers must *132 have functioned as a limitation on their understanding |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | must *132 have functioned as a limitation on their understanding of the new Nation's constitutional powers, this turns out not to be so at all. One of the characteristics of the founding generation, on the contrary, was its joinder of an appreciation of its immediate and powerful common-law heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see themselves to be children of the common law; as one of their contemporaries put it, "[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore [and] cannot learn another system of laws without learning at the same time another language." P. Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States 91 But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law's reception were subject to careful consideration by courts and legislatures in each of the new States.[27] An examination of the States' experience with common-law reception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is entirely at odds with `s resort to a common-law principle to limit the Constitution's contrary text. 1 This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that "[t]he *133 process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles." P. Reinsch, English Common Law in the Early American Colonies 58 (1899).[28] For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the religious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law.[29] It is true that, with the development of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial practice. See ; The |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | law gained increasing acceptance in colonial practice. See ; The Common Law: An Account of its Reception in the United States, *134 797 (19).[30] But even in the late colonial period, Americans insisted that "the whole body of the common law was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recognised as part of their jurisprudence." Dale, The Adoption of the Common Law by the American Colonies, 30 Am. L. Reg. 553, 554[31] The result was that "the increasing influx of common-law principles by no means obliterated the indigenous systems which had developed during the colonial era and that there existed important differences inlaw in action on the two sides of the Atlantic." *135 Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break between the Colonies and the old country. Dean has observed that, "[f]or a generation after the Revolution, political conditions gave rise to a general distrust of English law. The books are full of illustrations of the hostility toward English law simply because it was English which prevailed at the end of the eighteenth and in the earlier years of the nineteenth century." R. The Formative Era of American Law 7 (1938); see C. Warren, A History of the American Bar 224-225 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution). James Monroe went so far as to write in 1802 that "`the application of the principles of the English common law to our constitution' " should be considered "`good cause for impeachment.' " Letter from James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, p. 59 (1919)).[32] Nor was anti-English sentiment *136 the only difficulty; according to Dean "[s]ocial and geographical conditions contributed to make the work of receiving and reshaping the common law exceptionally difficult." The consequence of this anti-English hostility and awareness of changed circumstances was that the independent States continued the colonists' practice of adopting only so much of the |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | the colonists' practice of adopting only so much of the common law as they thought applicable to their local conditions.[33] As Justice Story explained, "[t]he common *137 law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van In 1800, John Marshall had expressed the similar view that "our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation." Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, 326, 1327. Accordingly, in the period following independence, "[l]egislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America." 0; see Jones 103 (observing that "suitab[ility] to local institutions and conditions" was "incomparably the most important" principle of reception in the new States). 2 While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common-law reception. See n. 55, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of habeas *138 corpus, U. S. Const., Art. I, 9, cl. 2, and the distinction between law and equity, U. S. Const., Amdt. 7, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229 0[34] This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, 326 ("I do not believe one man can be found" who maintains "that the common law of England hasbeen adopted as the common law of America by the Constitution of the United States"); Jay |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | of America by the Constitution of the United States"); Jay II, 255 (noting that the use of the term "laws" in Article "could not have been meant to accomplish a general reception of British common law"). Records of the ratification debates support Marshall's understanding that everyone had to know that the new Constitution would not draw the common law in its train. Antifederalists like George Mason went so far as to object that *139 under the proposed Constitution the people would not be "secured even in the enjoyment of the benefit of the common law." Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see 3 Elliot's Debates 446-449 (Patrick Henry, Convention). In particular, the Anti federalists worried about the failure of the proposed Constitution to provide for a reception of "the great rights associated with due process" such as the right to a jury trial, Jay II, 256, and they argued that "Congress's powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncertain,"[35] While Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common-law protections associated with due process, see, e. g., 3 Elliot's Debates 4 (George Nicholas, Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it "immutable," see (Edmund Randolph, Convention), and not subject to revision by Congress, (Edmund Pendleton, Convention); see infra, 63-164. The Framers recognized that the diverse development of the common law in the several States made a general federal reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively different." Report on the Resolutions, House of Delegates, Session of 1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906) *140 (Alien and Sedition Laws).[36] In particular, although there is little evidence regarding the immunity enjoyed by the various colonial governments prior to the Revolution, the profound differences as to the source of colonial authority between chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified "Common Law" in America that the Federal Constitution could adopt, Jay I, 056; Stoebuck, Reception of English Common Law in the American Colonies, and, in particular, probably no common principle of sovereign immunity, |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | and, in particular, probably no common principle of sovereign immunity, cf. Alien and Sedition Laws 376. The Framers may, as Madison, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today's majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed. Finally, the Framers' aversion to a general federal reception of the common law is evident from the Federalists' response *141 to the Anti federalist claim that Article granted an unduly broad jurisdiction to the federal courts. That response was to emphasize the limited powers of the National Government. See, e. g., 3 Elliot's Debates 553 (John Marshall, Convention) ("Has the government of the United States power to make laws on every subject? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers?"); Jay II, 260.[37] That answer assumes, of course, no generalized reception of English common law as federal law; otherwise, "arising under" jurisdiction would have extended to any subject comprehended by the general common law. Madison made this assumption absolutely clear during the subsequent debates over the Alien and Sedition Acts, which raised the issue of whether the Framers intended to recognize a general federal jurisdiction to try common-law crimes. Rejecting the idea of any federal reception, Madison insisted that "the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country." Alien and Sedition Laws 381. See 1 Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, at 6-5 (discussing *142 the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II, 254 (arguing that "[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution "). Madison concluded that "[i]t is distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common lawa law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers." Alien and Sedition Laws 382. B Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Court and the Court today cannot reasonably argue that something like the old immunity doctrine somehow slipped in as a tacit but enforceable background principle. But see ante, 2. The evidence is even more specific, however, that there was no pervasive understanding that sovereign immunity had limited federalquestion jurisdiction. 1 As I have already noted briefly, see the Framers and their contemporaries did not agree about the *143 place of common-law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction.[38] Patrick Henry opposed ratification on the basis of exactly the same reading. See 3 Elliot's Debates 543. On the other hand, James Madison, John Marshall, and Alexander Hamilton all appear to have believed that the common-law immunity from suit would survive the ratification of Article so as to be at a State's disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judicial power over them if they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. See ;[39] at 556 (Marshall: "I see a difficulty * in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in The Federalist No. 81: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | of every state in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961). See generally Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, ; -1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in The Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante, 0. But there is no such mandate to be found. As I have already said, the immediate context of Hamilton's discussion in Federalist No. 81 has nothing to do with federal-question cases. It addresses a suggestion "that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities." The Federalist No. 81, at 548. Hamilton is plainly talking about a *145 suit subject to a federal court's jurisdiction under the Citizen-State Diversity Clauses of Article The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to The Federalist No. 32. The Federalist No. 81, at 548. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts: "A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." The most that can be inferred from this is, as noted above, that in diversity cases applying state contract law the immunity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Court relied in part upon Hamilton's statement, see 134 U.S., 0, its reliance was misplaced; Hamilton was addressing diversity jurisdiction, whereas involved federal-question jurisdiction under the Contracts Clause. No general theory of federal-question immunity can be inferred from Hamilton's discussion of immunity in contract suits. But that |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | from Hamilton's discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on The Federalist No. 81. Hamilton says that a State is "not amenable to the suit of an individual without its consent [u]nless there is a surrender of this immunity in the plan of the convention." The Federalist No. 81, at 548-549 He *146 immediately adds, however, that "[t]he circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here." The reference is to The Federalist No. 32, by Hamilton, which has this to say about the alienation of state sovereignty: "[A]s the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States. This exclusive delegation or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and re- pugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would in fact be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority." 00 As an instance of the last case, in which exercising concurrent jurisdiction may produce interferences in "policy," Hamilton gives the example of concurrent power to tax the same subjects: "It is indeed possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article *147 by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a pre-existing right of sovereignty." 02 The first embarrassment Hamilton's discussion creates for the majority turns on the fact that the power to regulate commerce with Indian tribes has been interpreted as making "Indian relations the exclusive province of federal law." County of 470 U. S., at 4.[40] We have accordingly recognized that "[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply." ; see[41] We have specifically held, moreover, that the States have no power to regulate gambling on Indian lands. (17). In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton's view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong. Quite apart, however, from its application to this particular Act of Congress exercising the Indian commerce power, Hamilton's sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: congressional legislation on (a) subjects committed expressly and exclusively to Congress, (b) subjects over which state authority is expressly negated, (c) subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see, e. g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, when a congressional statute not only binds the States but even creates an affirmative obligation on the State *149 as such, as in this case? Hamilton's discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If infact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | is an implausible reading, one were to try to shoehorn this situation into Hamilton's category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sovereignty and consequent immunity is gone entirely. In sum, either the majority reads Hamilton as I do, to say nothing about sovereignty or immunity in such a case, or it will have to read him to say something about it that bars any state immunity claim. That is the dilemma of the majority's reliance on Hamilton's The Federalist No. 81, with its reference to No. 32. Either way, he is no authority for the Court's position. Thus, the Court's attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided.[42] The Court's difficulty is far more fundamental, however, than inconsistency with a particular quotation, for the Court's position runs afoul of the general theory of sovereignty that gave shape to the Framers' enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling *150 for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic. 2 We said in that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed ifeach State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that. See Articles of Confederation, Art. VI, 1 ("No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state"). While there is no need here to calculate exactly how close the American States came to sovereignty in the classic sense prior to ratification of the Constitution, it is clear that the act of ratification affected their sovereignty in a way different from any previous political event in America or anywhere else. For the adoption of the Constitution made them members of a novel federal system that sought to balance the States' exercise of some sovereign prerogatives delegated from their own people with the principle of a limited but centralizing federal supremacy. As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolutionary turn than the late war had been. See, e. g., U. S. Term |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | late war had been. See, e. g., U. S. Term Limits, 4 U.S. ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty").[43] Before the new federal scheme appeared, 18thcentury *1 political theorists had assumed that "there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself." B. Bailyn, The Ideological Origins of the American Revolution 1 (1967); see Wood 345.[44] The American development of divided sovereign powers, which "shatter[ed] the categories of government that had dominated Western thinking for centuries," was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See (noting that because "none of these arguments about `joint jurisdictions' and `coequal sovereignties' convincingly refuted the Anti federalist doctrine of a supreme and indivisible sovereignty," the Federalists could succeed only by emphasizing that the supreme power "`resides in the PEOPLE, as the fountain of government' " (citing 1 Pennsylvania and the Federal Constitution, p. 302 (J. McMaster & F. Stone eds. 1888) (quoting James Wilson)).[45] The People possessing this plenary bundle of specific powers *152 were free to parcel them out to different governments and different branches of the same government as they saw fit. See F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 278 As James Wilson emphasized, the location of ultimate sovereignty in the People meant that "[t]hey can distribute one portion of power to the more contracted circle called State governments; they can furnish another proportion to the government of the United States." 1 Pennsylvania and the Federal Constitution,[46] Under such a scheme, Alexander Hamilton explained, "[i]t does not follow that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects. " Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton (Syrett ed. 19)[47] A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Justice Iredell was to make the same observation in his dissent, commenting that "[t]he United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved." And to the same point was Chief Justice Marshall's * description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | to it, and neither sovereign with respect to the objects committed to the other." Given this metamorphosis of the idea of sovereignty in the years leading up to 1, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal-question jurisdiction is a crucial one.[48] The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and absurd. See, e. g., U.S. ("A sovereign is exempt from suit on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends").[49] But the ratification demonstrated *154 that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the "sovereign" in the traditional common-law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation's courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in where we considered a suit against a State in another State's courts: "This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity." Cf. United Subjecting States to federal jurisdiction in federal-question cases brought by individuals thus reflected nothing more than Professor Amar's apt summary that "[w]here governments are acting within the bounds of their delegated `sovereign' power, they may partake of sovereign immunity; where *155 not, not." Amar, Of |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | partake of sovereign immunity; where *155 not, not." Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1490-1491, n. 261 (17). State immunity to federal-question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the "multiplicity," "mutability," and "injustice" of then-extant state laws were prime factors requiring the formation of a new government. 1 Farrand 318 319 (remarks of J. Madison).[50] These factors, Madison wrote to Jefferson, "contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects." 5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found concrete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution dealt with the old problems affirmatively by granting the powers to Congress enumerated in Article I, 8, and by providing through the Supremacy Clause that Congress could pre-empt state action in areas of concurrent state and federal authority. Given the Framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave *156 the Government powerless. In The Federalist No. 80, at 535, Hamilton observed that "[n]o man of sense will believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them," and that "an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union" was the Convention's preferred remedy. By speaking in the plural of an authority in the federal "courts," Hamilton made it clear that he envisioned more than this Court's exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist's authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton's power of the Government to restrain violations of |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | today. Hamilton's power of the Government to restrain violations of citizens' rights was a power to be exercised by the federal courts at the citizens' behest. See Marshall, Fighting the Words of the Eleventh Amendment, This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, *157 to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federalquestion cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, 282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States,[] The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.[52] *158 Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers' vision of the relationship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court." Ante, 1.[53] But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following ratification of Article (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible *159 to contend that the plan of the convention was meant to leave the National Government without any way to render individuals capable of enforcing their federal rights directly against an intransigent State? C The considerations expressed so far, based on text, caution in common-law reception, and sovereignty theory, have pointed both to the mistakes inherent in and, even more strongly, to the error of today's holding. Although for reasons of stare decisis I would not today disturb the century-old precedent, I surely would not extend its error by placing the common-law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today's decision declaring state sovereign immunity itself immune from abrogation in federal-question cases is open to a further set of objections peculiar to itself. For today's decision stands condemned alike by the Framers' abhorrence of any notion that such common-law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court's previous essays in constitutionalizing common-law rules at the expense of legislative authority. 1 I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legislators over reception of common-law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution. The state politicians took pains to guarantee that once a common-law rule had been received, it would always be subject to legislative alteration, and again the state experience was reflected in the Framers' thought. Indeed, the Framers' very insistence *160 that no common-law doctrine would be received by virtue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation. The imperative of legislative control grew directly out of the Framers' revolutionary idea of popular sovereignty. According to one historian, "[s]hared ideas about the sovereignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. Whereas a |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | the role of legislation in the legal system. Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of common law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. [T]he power to modify or even entirely to repeal the common law now fell explicitly within the jurisdiction of the legislature." W. Nelson, Americanization of the Common Law 90[54] Virtually every state reception provision, be it constitutional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299-300; Jones 99. The New Jersey Constitution of 1776, for instance, provided that "the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall *161 be altered by a future law" N. J. Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976).[55] Just as the early state *162 governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration.[56] *163 I have already indicated that the Framers did not forget the state-law examples. When Anti federalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists' answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A[57] Madison went on to insist that *164 "[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." [58] Indeed, Madison anticipated, and rejected, the Court's approach today when he wrote that if "the common law be admitted as of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power [which] would be permanent and irremediable by the Legislature." Alien and Sedition Laws 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous"[59] *1 2 |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | "has always been lamented as incongruous and dangerous"[59] *1 2 History confirms the wisdom of Madison's abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this *166 century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we identify with 1 U.S. 45[60] It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the commonlaw background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., (19) ; see generally Sunstein, Lochner's Legacy, (17). And yet the superseding lesson that seemed clear after West Coast Hotel 300 U.S. that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court. The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of *167 which is to limit the exercise of governmental power. See, e. g., Some textual argument, at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution's grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal-question jurisdiction. I |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | a textual trump to the grant of federal-question jurisdiction. I know of only one other occasion on which the Court has spoken of extending its reach so far as to declare that the plain text of the Constitution is subordinate to judicially discoverable principles untethered to any written provision. Justice Chase once took such a position almost 200 years ago: "There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." (17) This position was no less in conflict with American constitutionalism in 17 than it is today, being inconsistent with the Framers' view of the Constitution as fundamental law. Justice Iredell understood this, and dissented (again) in an opinion that still answers the position that "vital" or "background" principles, without more, may be used to confine a clear constitutional provision: "[S]ome speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I *1 cannot think that, under such a government, any Court of Justice would possess a power to declare it so. ". [I]t has been the policy of the American states,. and of the people of the United Statesto define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." at 3-399 (opinion dissenting in part). Later jurisprudence vindicated Justice Iredell's view, and the idea that "first principles" or concepts of "natural justice" might take precedence over the Constitution or other positive law "all but disappeared in American discourse." J. Ely, |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | positive law "all but disappeared in American discourse." J. Ely, Democracy and Distrust 52 (10). It should take more than references to "background principle[s]," ante, 2, and "implicit limitation[s]," 483 U. S., at to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation. *169 IV The Court's holding that the States' immunity may not be abrogated by Congress leads to the final question in this case, whether federal-question jurisdiction exists to order prospective relief enforcing IGRA against a state officer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this question is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the requested order (to bargain in good faith) would actually provide to the Tribe. Nor, of course, does the issue turn in any way on one's views about the scope of the Eleventh Amendment or and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in Ex parte 209 U.S. 1 and the case could, and should, readily be decided on this point alone. A In Ex parte this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under "a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law." ; see The fact, without more, that such suits may have a significant impact on state governments does not count under Milliken, for example, was a suit, under the authority of brought against Michigan's Governor, Attorney General, Board of Education, Superintendent of Public Instruction, *170 and Treasurer, which resulted in an order obligating the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state moneys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | to fund a remedial education program that it would be the State's obligation to implement. To take another example, involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since was decided, the Court has recognized only one limitation on the scope of its doctrine: under permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief. It should be no cause for surprise that itself appeared when it did in the national law. It followed as a matter of course after the Court's broad recognition of immunity in federal-question cases, simply because "[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." provided, as it does today, a sensible way to reconcile the Court's expansive view of immunity expressed in with the principles embodied in the Supremacy Clause and Article If may be seen as merely the natural consequence of it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of isso far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that *171 long it has been settled doctrine that suit against an officer of the Crown permitted relief against the government despite the Crown's immunity from suit in its own courts and the maxim that the King could do no wrong. See 18-19; Ehrlich, No. XII: Proceedings Against the Crown (1216-1377), pp. 28-29, in 6 Oxford Studies in Social and Legal History An early example, from "time immemorial" of a claim "affecting the Crown [that] could be pursued in the regular courts [without consent since it]did not take the form of a suit against the Crown," was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a King's officers. When a King's officer disseised any person in the King's name, the wrongfully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. 77 Harv. L. Rev., Following this example forward, we may see how the writ |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | Following this example forward, we may see how the writ of attaint was ultimately overtaken by the more moderate common-law writs of certiorari and mandamus, "operat[ing] directly on the government; [and commanding] an officer not as an individual but as a functionary." 6. Thus the Court of King's Bench made it clear in 1701 that "wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus" The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng. Rep. 135 (K. B.). B This history teaches that it was only a matter of course that once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as would later open the door to Ex parte itself. Once, then, the Eleventh Amendment was understood to forbid suit *172 against a State eo nomine, the question arose "which suits against officers will be allowed and which will not be." 77 Harv. L. Rev., 0. "It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of government or because it required him, as in mandamus, to perform an official duty. These as we know had been well established before the eleventh amendment as not necessarily requiring consent. To be sure the renewed emphasis on immunity given by the eleventh amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argument for generous immunity. But there was the vastly powerful counter pressure for the enforcement of constitutional limits on the states. The upshot was to confine the amendment's prohibition more or less to the occasion which gave it birth, to wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state's real and personal property." 0-21. The earliest cases, United and embrace the English practice of permitting suits against officers, see Orth, Judicial Power of the United States, at 34-35, 40-41, 122, by focusing almost exclusively on whether the State had been named as a defendant. Governor of 1-124 shifted this analysis somewhat, finding |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | a defendant. Governor of 1-124 shifted this analysis somewhat, finding that a Governor could not be sued because he was sued "not by his name, but by his title," which was thought the functional equivalent of suing the State itself. Madrazo did not, however, erase the *173 fundamental principle of Osborn that sovereign immunity would not bar a suit against a state officer. See, e. g., ; United This simple rule for recognizing sovereign immunity without gutting substantial rights was temporarily muddled in where the Court, although it "did not clearly say why," refused to hear a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 14 S. Ct. Rev. 149, 152. (One recalls the circumstances of itself, see 17-121.) The Court, however, again applied Osborn in the Coupon Cases, In re Ayers, 1 U.S. 443, sought to rationalize the competing strands of doctrine on the ground that an action may be "sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character." Ex parte restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor immunity. The officer's action "is simply an illegal act upon the part of a state official in attempting *174 by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Ex parte 209 U. S., 59-160. The decision in Ex parte and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a "fiction," the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. " was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy. If the state could not constitutionally authorize the act then was not acting by its authority." Orth, Judicial Power of the United States, 33. The doctrine we call Ex parte is nothing short of "indispensable to the establishment of constitutional government and the rule of law." C. Wright, Law of Federal Courts 292 See Chemerinsky, Federal Jurisdiction, at 393. A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory reject the Court's assumption that Congress may bar enforcement by suit even against a state official. But because in practice, in the real world of congressional legislation, such *175 an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to "affec[t] the federal balance," United See (quoting State 473 U. S., 42); Our habitual caution makes sense for just the reason we mentioned in 491 U. S., at 0-1: it is "difficult to believe that Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest." C There is no question that by its own terms `s indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief, Edelman `s limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes it makes no difference in principle whether the injunction orders an official not to act, as in or requires the official to take some positive step, as in Milliken or Quern. Nothing, then, in this case renders unsuitable as a jurisdictional basis for determining on the merits whether petitioner is entitled to an order against a state official under general equitable |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply There is no adequate reason for its refusal. No clear statement of intent to displace the doctrine of Ex parte occurs in IGRA, and the Court is instead *176 constrained to rest its effort to skirt on a series of suggestions thought to be apparent in Congress's provision of "intricate procedures" for enforcing a State's obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary procedures; it is said that applying would nullify the statutory procedures; and finally the statutory provisions are said simply to reveal a congressional intent to preclude the application of 1 The Court cites 4 (18), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of The Court quotes from Chilicky for the general proposition that when Congress has provided what it considers adequate remedial mechanisms for violations of federal law, this Court should not "creat[e]" additional remedies. Ante, 4. The Court reasons that Congress's provision in IGRA of "intricate procedures" shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no "additional" remedy under Ex parte Ante, 3-76. Chilicky `s remoteness from the point of this case is, however, apparent from its facts. In Chilicky, Congress had addressed the problem of erroneous denials of certain government benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of 403 U.S. for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental remedy, backward looking on the model, running against a federal official in his personal capacity, and requiring an *177 affirmative justification (as does). See 0 U.S. 471, The issue in Chilicky (and in Meyer ) is different from the issue here in every significant respect. is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a general principle of federal equity jurisdiction that has been recognized throughout our history and for centuries before our own history began. does not provide retrospective monetary relief but allows prospective enforcement of |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | not provide retrospective monetary relief but allows prospective enforcement of federal law that is entitled to prevail under the Supremacy Clause. It requires not money payments from a government employee's personal pocket, but lawful conduct by a public employee acting in his official capacity. would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article court's enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One cannot intelligibly generalize from Chilicky `s standards for imposing the burden to justify a supplementary scheme of tort law to the displacement of `s traditional and indispensable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit. 2 Next, the Court suggests that it may be justified in displacing because would allow litigants to ignore the "intricate procedures" of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this suggestion, and the strongest authority to reject it. did not establish a new cause of action and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount *178 federal law may be enforced in a federal court by substituting a nonimmune party (the state officer) for an immune one (the State itself). does no more and furnishes no authority for the Court's assumption that it somehow pre-empts procedural rules devised by Congress for particular kinds of cases that may depend on for federal jurisdiction.[61] If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally dependent on the consequences would be revolutionary, for example, in habeas law. It is well established that when a habeas corpus petitioner sues a state official alleging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in Ex parte that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the doctrine). See 209 U. S., 67-1; U.S. 2, 9-690[62] And yet Congress has imposed *179 a number of restrictions upon the habeas remedy, see, e. g., 28 U.S. C. 2254(b) (requiring exhaustion of state remedies prior to bringing a federal habeas petition), and this Court has articulated several more, see, e. g., ; ; By suggesting that Ex parte provides a |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | g., ; ; By suggesting that Ex parte provides a free-standing remedy not subject to the restrictions otherwise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may circumvent these restrictions by ostensibly bringing his suit under rather than 28 U.S. C. 2254. The Court's view implies similar consequences under any number of similarly structured federal statutory schemes.[63] This, of course, cannot be the law, and the plausible rationale for rejecting the Court's contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on as it has to regulate when is out of the jurisdictional picture. If does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then does not bar the application of IGRA's procedures when effective relief is sought by suing a state officer. 3 The Court's third strand of reasoning for displacing Ex parte is a supposed inference that Congress so intended. *180 Since the Court rests this inference in large part on its erroneous assumption that the statute's procedural limitations would not be applied in a suit against an officer for which provided the jurisdictional basis, the error of that assumption is enough to show the unsoundness of any inference that Congress meant to exclude `s application. But there are further reasons pointing to the utter implausibility of the Court's reading of the congressional mind. IGRA's jurisdictional provision reads as though it had been drafted with the specific intent to apply to officer liability under It provides that "[t]he United States district courts shall have jurisdiction over any cause of action arising from the failure of a State to enter into negotiations or to conduct such negotiations in good faith." 25 U.S. C. 2710(d)(7)(A)(i) (emphasis added). This language does not limit the possible defendants to States and is quite literally consistent with the possibility that a tribe could sue an appropriate state official for a State's failure to negotiate.[64] The door is so obviously just as open to jurisdiction over an officer under as to jurisdiction over a State directly that it is difficult to see why the statute would have been drafted as it was unless it was done in anticipation that might well be the jurisdictional basis for enforcement action. But even if the jurisdictional provision had spoken narrowly of an action against the State itself (as it subsequently speaks in terms of the State's obligation), that would be no indication that Congress had rejected the application of An order requiring a "State" to comply |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | the application of An order requiring a "State" to comply with federal *181 law can, of course, take the form of an order directed to the State in its sovereign capacity. But as Ex parte and innumerable other cases show, there is nothing incongruous about a duty imposed on a "State" that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required "the State," by "order directed to an appropriate State official," to produce the state-court record where an indigent habeas petitioner argues that a state court's factual findings are not fairly supported in the record. See 28 U.S. C. 2254(e) ("the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official"). If, then, IGRA's references to "a State's" duty were not enforceable by order to a state official, it would have to be for some other reason than the placement of the statutory duty on "the State." It may be that even the Court agrees, for it falls back to the position, see ante, 5, n. 17, that only a State, not a state officer, can enter into a compact. This is true but wholly beside the point. The issue is whether negotiation should take place as required by IGRA and an officer (indeed, only an officer) can negotiate. In fact, the only case cited by the Court, State ex rel. 2 Kan. 559, makes that distinction abundantly clear. Finally, one must judge the Court's purported inference by stepping back to ask why Congress could possibly have intended to jeopardize the enforcement of the statute by excluding application of `s traditional jurisdictional rule, when that rule would make the difference between success or failure in the federal court if state sovereign immunity was recognized. Why would Congress have wanted to go for broke on the issue of state immunity in the event the State pleaded immunity as a jurisdictional bar? Why would Congress not have wanted IGRA to be enforced by means of *182 a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign immunity with federal law that is paramount under the Supremacy Clause? There are no plausible answers to these questions. D There is, finally, a response to the Court's rejection of that ought to go without saying. Our long-standing practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo 485 U.S. 5, (18) |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | avoid constitutional infirmity, Edward J. DeBartolo 485 U.S. 5, (18) ). This practice alone (without any need for a clear statement to displace ) would be enough to require `s application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas ). Construing the statute to harmonize with as it readily does, would have saved an Act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone. V Absent the application of Ex parte I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate immunity. Since the reasons for this position, as explained in Parts II, tend to unsettle as well as support Union Gas, I should add a word about my reasons for continuing to accept `s holding as a matter of stare decisis. *183 The doctrine was erroneous, but it has not previously proven to be unworkable or to conflict with later doctrine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect. In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment,[] they would not be modified without deliberately expressed intent. See 501 U. S., at The plain-statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision," United 404 U. S., at is particularly appropriate in light of our primary reliance on "[t]he effectiveness of the federal political process in preserving the States' interests,"[66] Hence, we *184 have required such a plain statement when Congress preempts the historic powers of the States, 0 imposes a condition on the grant of federal moneys, South (17), or seeks to regulate |
Justice Souter | 1,996 | 20 | second_dissenting | Seminole Tribe of Fla. v. Florida | https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/ | grant of federal moneys, South (17), or seeks to regulate a State's ability to determine the qualifications of its own officials, When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain-statement requirement is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e. g., v. Texas Dept. of Highways & Public 483 U. S., ; State 473 U. S., -240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas ) we have never found the requirement to be met outside the context of laws passed under 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plainstatement rule is an adequate check on congressional overreaching, and that today's abandonment of that approach is wholly unwarranted. There is an even more fundamental "clear statement" principle, however, that the Court abandons today. John Marshall recognized it over a century and a half ago in the very context of state sovereign immunity in federal-question cases: *185 "The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed." 6 Wheat., at -380. Because neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article I would reverse the judgment of the Court of Appeals. |
Justice Marshall | 1,981 | 15 | majority | Arkansas Louisiana Gas Co. v. Hall | https://www.courtlistener.com/opinion/110562/arkansas-louisiana-gas-co-v-hall/ | The "filed rate doctrine" prohibits a federally regulated seller of natural gas from charging rates higher than those filed with the Federal Energy Regulatory Commission pursuant to the Natural Gas Act, as amended, 15 U.S. C. 717 et seq. ( ed. and Supp. III). The question before us is whether that doctrine forbids a state court to calculate damages in a breach-of-contract action based on an assumption that had a higher rate been filed, the Commission would have approved it. I Respondents are producers of natural gas, and petitioner Arkansas Louisiana Gas Co. (Arkla) is a customer who buys their gas. In 1952, respondents[1] and Arkla entered into a contract under which respondents agreed to sell Arkla natural gas from the Sligo Gas Field in Louisiana. The contract contained a fixed price schedule and a "favored nations clause." The favored nations clause provided that if Arkla purchased Sligo Field natural gas from another party at a rate higher than the one it was paying respondents, then respondents would be entitled to a higher price for their sales to Arkla.[2]*574 In 1954, respondents filed with the Federal Power Commission (now the Federal Energy Regulatory Commission)[3] the contract and their rates and obtained from the Commission a certificate authorizing the sale of gas at the rates specified in the contract. In September 1961, Arkla purchased certain leases in the Sligo Field from the United States and began producing gas on its leasehold. In 14, respondents filed this state-court action contending that Arkla's lease payments to the United States had triggered the favored nations clause. Because Arkla had not increased its payments to respondents as required by the clause, respondents sought as damages an amount equal to the difference between the price they actually were paid in the intervening years and the price they would have been paid had the favored nations clause gone into effect. In its answer, Arkla denied that its lease payments were purchases of gas within the meaning of the favored nations clause. Arkla subsequently amended its answer to allege in addition that the Commission had primary jurisdiction over the issues in contention. Arkla also sought a Commission ruling that its lease payments had not triggered the favored nations clause. The Commission did not act immediately, and the case proceeded to trial. The state trial court found that Arkla's payments had triggered the favored nations clause, but nonetheless held that the filed rate doctrine precluded *575 an award of damages for the period prior to 12. The intermediate appellate court affirmed, and both parties sought leave to appeal. The |
Justice Marshall | 1,981 | 15 | majority | Arkansas Louisiana Gas Co. v. Hall | https://www.courtlistener.com/opinion/110562/arkansas-louisiana-gas-co-v-hall/ | court affirmed, and both parties sought leave to appeal. The Supreme Court of Louisiana denied Arkla's petition for appeal, and Arkla sought certiorari in this Court on the question whether the interpretation of the favored nations clause should have been referred to the Commission. We denied the petition. While Arkla's petition for certiorari was pending, the Supreme Court of Louisiana granted respondents' petition for review and reversed the intermediate court on the measure of damages. The court held that respondents were entitled to damages for the period between 1961 and 12 notwithstanding the filed rate doctrine. The court reasoned that Arkla's failure to inform respondents of the lease payments to the United States had prevented respondents from filing rate increases with the Commission, and that had respondents filed rate increases with the Commission, the rate increases would have been approved. After the decision by the Supreme Court of Louisiana, the Commission in May finally declined to exercise primary jurisdiction over the case, holding that the interpretation of the favored nations clause raised no matters on which the Commission had particular expertise. Arkansas Louisiana Gas[4] The Commission *576 did, however, state: "It is our opinion that the Louisiana Supreme Court's award of damages for the 1961-12 period violates the filed rate doctrine."[5] Under that doctrine, no regulated seller is legally entitled to collect a rate in excess of the one filed with the Commission for a particular period. See infra, at 576-579. We granted Arkla's subsequent petition for certiorari challenging the judgment of the Louisiana Supreme Court.[6] II Sections 4 (c) and 4 (d) of the Natural Gas Act, -823, 15 U.S. C. 717c (c) and 717c (d), require sellers of *577 natural gas in interstate commerce to file their rates with the Commission. Under 4 (a) of the Act, 15 U.S. C. 717c (a), the rates that a regulated gas company files with the Commission for sale and transportation of natural gas are lawful only if they are "just and reasonable." No court may substitute its own judgment on reasonableness for the judgment of the Commission. The authority to decide whether the rates are reasonable is vested by 4 of the Act solely in the Commission, see and "the right to a reasonable rate is the right to the rate which the Commission files or fixes," Montana-Dakota Utilities[7] Except when the Commission permits a waiver, no regulated seller of natural gas may collect a rate other than the one filed with the Commission. 4 (d), 15 U.S. C. 717c (d). These straightforward principles underlie the "filed rate doctrine," which forbids |
Justice Marshall | 1,981 | 15 | majority | Arkansas Louisiana Gas Co. v. Hall | https://www.courtlistener.com/opinion/110562/arkansas-louisiana-gas-co-v-hall/ | These straightforward principles underlie the "filed rate doctrine," which forbids a regulated entity to charge rates for its services other than those properly filed with the appropriate federal regulatory authority. See, e. g., T. I. M. E. The filed rate doctrine has its origins in this Court's cases interpreting the Interstate Commerce Act, see, e. g., ; Pennsylvania R. and has been extended across the spectrum of regulated utilities. "The considerations underlying the doctrine are preservation of the agency's primary jurisdiction *578 over reasonableness of rates and the need to insure that regulated companies charge only those rates of which the agency has been made cognizant." City of See City of Not only do the courts lack authority to impose a different rate than the one approved by the Commission, but the Commission itself has no power to alter a rate retroactively.[8] When the Commission finds a rate unreasonable, it "shall determine the just and reasonable rate to be thereafter observed and in force." 5 (a), 15 U.S. C. 717d (a) (emphasis added). See, e. g., ; This rule bars "the Commission's retroactive substitution of an unreasonably high or low rate with a just and reasonable rate." City of Piqua v. In sum, the Act bars a regulated seller of natural gas from collecting a rate other than the one filed with the Commission and prevents the Commission itself from imposing a rate increase for gas already sold. Petitioner Arkla and the Commission as amicus curiae both argue that these rules taken in tandem are sufficient to dispose of this case. No matter how the ruling of the Louisiana Supreme Court may be characterized, they argue, it amounts to nothing less than the award of a retroactive rate increase based on speculation *579 about what the Commission might have done had it been faced with the facts of this case. This, they contend, is precisely what the filed rate doctrine forbids. We agree. It would undermine the congressional scheme of uniform rate regulation to allow a state court to award as damages a rate never filed with the Commission and thus never found to be reasonable within the meaning of the Act. Following that course would permit state courts to grant regulated sellers greater relief than they could obtain from the Commission itself. In asserting that the filed rate doctrine has no application here, respondents contend first that the state court has done no more than determine the damages they have suffered as a result of Arkla's breach of the contract.[9] No federal interests, they maintain, are affected by the |
Justice Marshall | 1,981 | 15 | majority | Arkansas Louisiana Gas Co. v. Hall | https://www.courtlistener.com/opinion/110562/arkansas-louisiana-gas-co-v-hall/ | contract.[9] No federal interests, they maintain, are affected by the state court's action. But the Commission itself has found that permitting this damages award could have an "unsettling effect on other gas purchase transactions" and would have a "potential for disruption of natural gas markets" Arkansas Louisiana Gas 13 ¶ 61,100,[10] *580 Even were the Commission not on record in this case, the mere fact that respondents brought this suit under state law would not rescue it, for when Congress has established an exclusive form of regulation, "there can be no divided authority over interstate commerce." Missouri Pacific R. Congress here has granted exclusive authority over rate regulation to the Commission. In so doing, Congress withheld the authority to grant retroactive rate increases or to permit collection of a rate other than the one on file. It would surely be inconsistent with this congressional purpose to permit a state court to do through a breach-of-contract action what the Commission itself may not do. We rejected an analogous claim earlier this Term in Chicago & North Western Transp. There, a shipper of goods by rail sought to assert a state common-law tort action for damages stemming from a regulated rail carrier's decision to cease service on a rail line. We held unanimously that because the Interstate Commerce Commission had, in approving the cessation, ruled on all issues that the shipper sought to raise in the state-court suit, the common-law action was pre-empted. In reaching our conclusion, we explained that "[a] system under which each State could, through its courts, impose on rail-road carriers its own version of reasonable service requirements could hardly be more at odds with the uniformity contemplated by Congress in enacting the Interstate Commerce Act." To hold otherwise, we said, would merely approve "an attempt by a disappointed shipper to gain from the Iowa courts the relief it was denied by the Commission." In the case before us, the Louisiana Supreme Court's award of damages to respondents was necessarily supported by an assumption that the higher rate respondents might have filed with the Commission was reasonable. Otherwise, there would have been no basis for that court's conclusion, 368 *581 So. 2d, that the Commission would have approved the rate. But under the filed rate doctrine, the Commission alone is empowered to make that judgment, and until it has done so, no rate other than the one on file may be charged. And far from approving the rate here in issue, the Commission has expressly declined to speculate on what its predecessor might have done.[11] The court below, like |
Justice Marshall | 1,981 | 15 | majority | Arkansas Louisiana Gas Co. v. Hall | https://www.courtlistener.com/opinion/110562/arkansas-louisiana-gas-co-v-hall/ | what its predecessor might have done.[11] The court below, like the state *582 court in Kalo Brick, has consequently usurped a function that Congress has assigned to a federal regulatory body. This the Supremacy Clause will not permit. Respondents' theory of the case would give inordinate importance to the role of contracts between buyers and sellers in the federal scheme for regulating the sale of natural gas. Of course, as we have held on more than one occasion, nothing in the Act forbids parties to set their rates by contract. E. g., Permian Basin Area Rate ; United Gas Pipe Line But those cases stand only for the proposition that the Commission itself lacks affirmative authority, absent extraordinary circumstances, to "abrogate existing contractual arrangements." Permian Basin Area Rate See United Gas Pipe Line That rule does not affect the supremacy of the Act itself, and under the filed rate doctrine, when there is a conflict between the filed rate and the contract rate, the filed rate controls. See, e. g., Louisville & Nashville R. ; Texas & Pacific R. "This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress" Louisville & Nashville R. at Moreover, to permit parties to vary by private agreement the rates filed with the Commission would undercut the clear purpose of the congressional scheme: granting the Commission an opportunity in every case to judge the reasonableness of the rate. Cf. United Gas Pipe Line[] *583 Respondents also appeal to what they say are equitable considerations. The filed rate doctrine and the Supremacy Clause, we are told, should not bar recovery when the defendant's misconduct prevented filing of a higher rate. We do not find this argument compelling. The court below did not find that Arkla intentionally failed to inform respondents of its lease payments to the United States in an effort to defraud them. Consequently, we are not faced with affirmative misconduct, and we need not consider the application of the filed rate doctrine in such a case.[13] The courts *584 below found that Arkla has done no more than commit a simple breach of its contract. But when a court is called upon to decide whether state and federal laws are in conflict, the fact that the state law has been violated does not affect the analysis. Every pre-emption case involves a conflict between a claim of right under federal law and a claim of right under state law. A finding that federal law provides a shield for the challenged |
Justice Marshall | 1,981 | 15 | majority | Arkansas Louisiana Gas Co. v. Hall | https://www.courtlistener.com/opinion/110562/arkansas-louisiana-gas-co-v-hall/ | finding that federal law provides a shield for the challenged conduct will almost always leave the state-law violation unredressed. Thus in San Diego Building Trades the mere fact that a group of unions violated state law through their peaceful picketing did not permit enforcement of that law when it would conflict with the federal regulatory scheme. That the state-court suit was one for damages rather than for the type of relief available from the National Labor Relations Board weighed against pre-emption, not in favor of it. "[S]ince remedies form an ingredient of any integrated scheme of regulation," Justice Frankfurter wrote for the Court, "to allow the State to grant a remedy here which has been withheld from the National Labor Relations Board only accentuates the danger of conflict." The same principle applies here. Permitting the state court to award what amounts to a retroactive right to collect a rate in excess of the filed rate "only accentuates the danger of conflict." No appeal to equitable principles can justify this usurpation of federal authority. III We hold that the filed rate doctrine prohibits the award of damages for Arkla's breach during the period that respondents were subject to Commission jurisdiction.[14] In all respects other than those relating to damages, the judgment of the Supreme Court of Louisiana is affirmed. With respect *585 to its calculation of damages, the judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | I agree with the Court’s decision, and all of its reasoning demonstrag the incompatibility of the D. C. Circuit’s Paralyzed holding with the Administrative Pro- cedure Act. Paralyzed of I do not agree, however, with the Court’s portrayal of the result it produces as a vindica- tion of the balance Congress struck when it “weighed the costs and benefits of placing more rigorous restrictions on the issuance of interpretive rules.” Ante, at 9. That depiction is accurate enough if one looks at this case in isolation. Considered alongside our law of deference to administrative determinations, however, today’s decision produces a balance between power and procedure quite different from the one Congress chose when it enacted the APA. “The [APA] was framed against a background of rapid expansion of the administrative process as a check upon 2 PEREZ v. MORTGAGE BANKERS ASSN. SCALIA, J., concurring in judgment administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creag their offices.” United States v. Morton Salt Co., 338 U.S. 632, 644 (1950). The Act guards against excesses in rule- making by requiring notice and comment. Before an agency makes a rule, it normally must notify the public of the proposal, invite them to comment on its shortcomings, consider and respond to their arguments, and explain its final decision in a statement of the rule’s basis and pur- pose. 5 U.S. C. ante, at 2. The APA exempts interpretive rules from these re- quirements. But this concession to agencies was meant to be more modest in its effects than it is today. For despite exempg interpretive rules from notice and comment, the Act provides that “the reviewing court shall interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” (emphasis added). The Act thus contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations. In such a regime, the exemption for interpretive rules does not add much to agency power. An agency may use interpretive rules to advise the public by explaining its interpretation of the law. But an agency may not use interpretive rules to bind the public by making law, because it remains the responsibility of the court to decide whether the law means what the agency says it means. Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies’ inter- pretations of statutes and regulations. Never mentioning ’s directive that the “reviewing court interpret statutory provisions,” we have held that agencies may authoritatively resolve ambiguities in statutes. |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | have held that agencies may authoritatively resolve ambiguities in statutes. Chevron U. S. A. And never mentioning ’s directive that the “reviewing court determine Cite as: 575 U. S. (2015) 3 SCALIA, J., concurring in judgment the meaning or applicability of the terms of an agency action,” we have—relying on a case decided before the APA, —held that agencies may authoritatively resolve ambiguities in regulations. Auer v. Robbins, 519 U.S. 452, 461 By supplemeng the APA with judge-made doctrines of deference, we have revolutionized the import of inter- pretive rules’ exemption from notice-and-comment rule- making. Agencies may now use these rules not just to advise the public, but also to bind them. After all, if an interpretive rule gets deference, the people are bound to obey it on pain of sanction, no less surely than they are bound to obey substantive rules, which are accorded simi- lar deference. Interpretive rules that command deference do have the force of law. The Court’s reasons for resisg this obvious point would not withstand a gentle breeze. Even when an agen- cy’s interpretation gets deference, the Court argues, “it is the court that ultimately decides whether [the text] means what the agency says.” Ante, at 10–11, n. 4. That is not quite so. So long as the agency does not stray beyond the ambiguity in the text being interpreted, deference compels the reviewing court to “decide” that the text means what the agency says. The Court conues that “deference is not an inexorable command in all cases,” because (for example) it does not apply to plainly erroneous interpreta- tions. True, but beside the point. Saying all inter- pretive rules lack force of law because plainly erroneous interpretations do not bind courts is like saying all sub- stantive rules lack force of law because arbitrary and capricious rules do not bind courts. Of course an interpre- tive rule must meet certain conditions before it gets defer- ence—the interpretation must, for instance, be reason- able—but once it does so it is every bit as binding as a substantive rule. So the point stands: By deferring to 4 PEREZ v. MORTGAGE BANKERS ASSN. SCALIA, J., concurring in judgment interpretive rules, we have allowed agencies to make binding rules unhampered by notice-and-comment procedures. The problem is bad enough, and perhaps insoluble if Chevron is not to be uprooted, with respect to interpretive rules setg forth agency interpretation of statutes. But an agency’s interpretation of its own regulations is an- other matter. By giving that category of interpretive rules Auer deference, we do more than allow the agency to |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | Auer deference, we do more than allow the agency to make binding regulations without notice and comment. Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment. The APA does not remotely contemplate this regime. Still and all, what are we to do about the problem? The Paralyzed doctrine is a courageous (indeed, brazen) attempt to limit the mischief by requiring an interpretive rule to go through notice and comment if it revises an earlier definitive interpretation of a regulation. That solution is unlawful for the reasons set forth in the Court’s opinion: It contradicts the APA’s unqualified ex- emption of interpretive rules from notice-and-comment rulemaking. But I think there is another solution—one unavailable to the D. C. Circuit since it involves the overruling of one this Court’s decisions (that being even a greater fault than merely ignoring the APA). As I have described elsewhere, the rule of Chevron, if it did not comport with the APA, at least was in conformity with the long history of judicial review of executive action, where “[s]tatutory ambiguities were left to reasonable resolution by the Executive.” Cite as: 575 U. S. (2015) 5 SCALIA, J., concurring in judgment United (SCALIA, J., disseng). I am unaware of any such history justifying deference to agency interpretations of its own regulations. And there are weighty reasons to deny a lawgiver the power to write ambiguous laws and then be the judge of what the ambiguity means. See Decker v. Northwest Environmental Defense Center, 568 U. S. – (2013) (SCALIA, J., concurring in part and dissent- ing in part) (slip op., at 1–7). I would therefore restore the balance originally struck by the APA with respect to an agency’s interpretation of its own regulations, not by rewrig the Act in order to make up for Auer, but by abandoning Auer and applying the Act as written. The agency is free to interpret its own regulations with or without notice and comment; but courts will decide—with no deference to the agency—whether that interpretation is correct. Cite as: 575 U. S. (2015) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES Nos. 13–1041 and 13–1052 THOMAS E. PEREZ, SECRETARY OF LABOR, ET AL., PETITIONERS 13–1041 v. MORTGAGE BANKERS ASSOCIATION ET AL. JEROME NICKOLS, ET |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | 13–1041 v. MORTGAGE BANKERS ASSOCIATION ET AL. JEROME NICKOLS, ET AL., PETITIONERS 13–1052 v. MORTGAGE BANKERS ASSOCIATION ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [March 9, 2015] JUSTICE THOMAS, concurring in the judgment. I concur in the Court’s holding that the doctrine first announced in Paralyzed of is inconsistent with the Administrative Procedure Act (APA), 5 U.S. C. et seq., and must be rejected. An agency’s substantial revision of its interpretation of a regulation does not amount to an “amendment” of the regulation as that word is used in the statute. I write separately because these cases call into question the legitimacy of our precedents requiring deference to administrative interpretations of regulations. That line of precedents, beginning with requires judges to defer to agency interpretations of regulations, thus, as happened in these cases, giving legal effect to the interpretations rather than the regulations themselves. Because this doctrine effects a transfer of the judicial power to an exec- 2 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment utive agency, it raises constitutional concerns. This line of precedents undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent. I The doctrine of deference to an agency’s interpretation of regulations is usually traced back to this Court’s deci- sion in Seminole which involved the interpre- tation of a war-time price control regulation, Along with a general price freeze, the Administrator of the Office of Price Administration had promulgated special- ized regulations governing the maximum price for differ- ent commodities. When the Administrator brought an enforcement action against a manufacturer of crushed stone, the manufacturer challenged the Adminis- trator’s interpretation of his regulations. The lower courts agreed with the manufacturer’s inter- pretation, at 412–413, but this Court reversed. In setg out the approach it would apply to the case, the Court announced—without citation or explanation—that an administrative interpretation of an ambiguous regula- tion was entitled to “controlling weight”: “Since this involves an interpretation of an adminis- trative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpreta- tion, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” –414. Cite as: 575 U. S. |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | inconsistent with the regulation.” –414. Cite as: 575 U. S. (2015) 3 THOMAS, J., concurring in judgment The Court then concluded that the rule “clearly” favored the Administrator’s interpretation, rendering this discus- sion dictum. at 415–417. From this unsupported rule developed a doctrine of deference that has taken on a life of its own.1 It has been broadly applied to regulations issued by agencies across a broad spectrum of subjects. See, e.g., (forests); 104–105 (1971) (Selective Service); (1969) (deportation); 16–17 (1965) (oil and gas leases). It has even been applied to an agency’s interpretation of another agency’s regulations. See 696– 699 (1991). And, it has been applied to an agency inter- pretation that was inconsistent with a previous interpre- tation of the same regulation. See Long Island Care at It has been applied to formal and informal interpretations alike, including those taken during litigation. See Its reasoning has also been extended outside the context of traditional agency regulations into the realm of criminal sentencing. See (con- cluding that the Sentencing Commission’s commentary on its Guidelines is analogous to an agency interpretation of its own regulations, entitled to Seminole deference). The Court has even applied the doctrine to an agency interpretation of a regulation cast in such vague aspira- tional terms as to have no substantive content. See —————— 1 Although the Court has appeared to treat our agency deference regimes as precedents entitled to stare decisis effect, some scholars have noted that they might instead be classified as interpretive tools. See, e.g., C. Nelson, Statutory Interpretation 701 (2011). Such tools might not be entitled to such effect. Because resolution of that issue is not necessary to my conclusion here, I leave it for another day. 4 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment Thomas Jefferson 512–513 ; see also On this steady march toward deference, the Court only once expressly declined to apply Seminole deference on the ground that the agency’s interpretation was plainly erroneous.2 In that case, we were faced with the predict- able consequence of this line of precedents: An agency sought deference to an opinion letter that interpreted a permissive regulation as mandatory. See Christensen v. Harris County, We rejected that request for deference as an effort, “under the guise of interpreg a regulation, to create de facto a new regula- tion.” This narrow limit on the broad deference given the agency interpretations, though sound, could not save a doctrine that was constitutionally infirm from the start. Seminole was constitutionally suspect from the start, and this Court’s repeated extensions of it have only magnified |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | and this Court’s repeated extensions of it have only magnified the effects and the attendant concerns. —————— 2 The Court has also twice expressly found Seminole deference inapplicable for other reasons. Christopher v. SmithKline Beecham Corp., 567 U. S. – (2012) (slip op., at 13–14) (“[W]here, as here, an agency’s announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute. [W]hatever the general merits of Auer deference, it is unwarranted here”); 546 U.S. 256–257 (2006) (“In our view Auer and the standard of deference it accords to an agency are inapplicable here. The language the Interpretive Rule addresses comes from Congress, not the Attorney General, and the near equivalence of the statute and regulation belies the Government’s argument for Auer deference”). Occasionally, Members of this Court have argued in separate writ- ings that the Court failed appropriately to apply Seminole defer- ence, but in none of those cases did the majority opinions of the Court expressly refuse to do so. See (2005); Allentown Mack Sales & Service, (1998); Director, Office of Workers’ Compensation ; United States v. Swank, 451 U.S. 571 (1981); Cite as: 575 U. S. (2015) 5 THOMAS, J., concurring in judgment II We have not always been vigilant about protecg the structure of our Constitution. Although this Court has repeatedly invoked the “separation of powers” and “the constitutional system of checks and balances” as core principles of our constitutional design, essential to the protection of individual liberty, see, e.g., Stern v. Marshall, 564 U. S. – (2011) (slip op., at 16–17) (internal quotation marks omitted), it has also endorsed a “more pragmatic, flexible approach” to that design when it has seemed more convenient to permit the powers to be mixed, see, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977). As the history shows, that approach runs the risk of compromising our constitutional structure. A The Constitution’s particular blend of separated powers and checks and balances was informed by centuries of political thought and experiences. See M. Vile, Constitu- tionalism and the Separation of Powers 38, 168–169 (2d ed. 1998) (Vile). Though the theories of the separation of powers and checks and balances have roots in the ancient world, events of the 17th and 18th centuries played a crucial role in their development and informed the men who crafted and ratified the Constitution. Over a century before our War of Independence, the English Civil War catapulted the theory of the separation of powers to prominence. As political theorists of the day witnessed the |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | to prominence. As political theorists of the day witnessed the conflict between the King and Parliament, and the dangers of tyrannical government posed by each, they began to call for a clear division of authority between the two. at 48–49. A 1648 work titled The Royalist’s Defence offered perhaps the first extended account of the theory of the separation of powers: “[W]hilst the Supreamacy, the Power to Judge the Law, 6 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment and Authority to make new Lawes, are kept in severall hands, the known Law is preserved, but united, it is van- ished, instantly thereupon, and Arbytrary and Tyrannicall power is introduced.” The Royalist’s Defence 80 (1648) (italics in original). John and Baron de Montesquieu endorsed and expanded on this concept. See Vile 63–64. They agreed with the general theory set forth in The Royalist’s De- fence, emphasizing the need for a separation of powers to protect individual liberty. J. Second Treatise of Civil Government p. (J. Gough ed. 1947); Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). But they also advo- cated a system of checks and balances to reinforce that separation. Vile –73, 102. For instance, they agreed that the executive should have the power to assemble and dismiss the legislature and to consent to laws passed by it. See 156, at 75, 77–78; Montesquieu, Spirit of the Laws, at 157, 159. Montesquieu warned that “power should be a check to power” lest the legislature “arrogate to itself what authority it pleased [and] soon destroy all the other powers.” The experience of the States during the period between the War of Independence and the ratification of the Con- stitution confirmed the wisdom of combining these theo- ries. Although many State Constitutions of the time included language unequivocally endorsing the separation of powers, they did not secure that separation with checks and balances, Vile 147, and actively placed traditional executive and judicial functions in the legislature, G. Wood, The Creation of the American Republic 1776– 1787, pp. 155–156 (1969). Under these arrangements, state legislatures arrogated power to themselves and began to confiscate property, approve the pring of paper money, and suspend the ordinary means for the recovery Cite as: 575 U. S. (2015) 7 THOMAS, J., concurring in judgment of debts. at 403–409.3 When the Framers met for the Constitutional Conven- tion, they understood the need for greater checks and balances to reinforce the separation of powers. As Madi- son remarked, “experience has taught us a distrust” of the |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | son remarked, “experience has taught us a distrust” of the separation of powers alone as “a sufficient security to each [branch] [against] encroachments of the others.” 2 Re- cords of the Federal Convention of 1787, p. 77 (M. Farrand rev. 1966). “[I]t is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper.” The Framers thus separated the three main powers of Government—legislative, executive, and judi- cial—into the three branches created by Articles I, II, and III. But they also created checks and balances to reinforce that separation. For example, they gave Congress specific enumerated powers to enact legislation, Art. I, but gave the President the power to veto that legislation, subject to congressional override by a supermajority vote, Art. I, cls. 2, 3. They gave the President the power to appoint principal officers of the United States, but gave the Senate the power to give advice and consent to those appointments. Art. II, cl. 2. They gave the House and Senate the power to agree to adjourn for more than three days, Art. I, cl. 4, but gave the President the power, “in Case of Disagreement between them,” to adjourn the Congress “to such Time as he shall think proper.” Art. II, cl. 3. During the ratification debates, Madison argued that this structure represented “the great security” for liberty in the Constitution. The Federalist No. 51, p. 321 —————— 3 The practices of the time can perhaps best be summarized by the following commentary from a contemporaneous magazine: “[S]o many legal infractions of sacred right—so many public invasions of private property—so many wanton abuses of legislative powers!” Giles Hickory (Noah Webster), Government, The American Magazine, Mar. 1788, p. 206. 8 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment (C. Rossiter ed. 1961) (J. Madison). To the Framers, the separation of powers and checks and balances were more than just theories. They were practical and real protections for individual liberty in the new Constitution. See Mistretta v. United States, 488 U.S. 361, 426 (SCALIA, J., disseng) (“[The Con- stitution] is a prescribed structure, a framework, for the conduct of government. In designing that structure, the Framers themselves considered how much commingling [of governmental powers] was, in the generality of things, acceptable, and set forth their conclusions in the docu- ment”). The Judiciary—no less than the other two branches—has an obligation to guard against deviations from those principles. The Seminole line of prece- dent is one such deviation. B Seminole raises two related constitutional con- cerns. It represents a transfer of judicial |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | related constitutional con- cerns. It represents a transfer of judicial power to the Executive Branch, and it amounts to an erosion of the judicial obligation to serve as a “check” on the political branches. 1 When a party properly brings a case or controversy to an Article III court, that court is called upon to exercise the “judicial Power of the United States.” Art. III, For the reasons I explain in this section, the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreg and expounding upon the laws. Those who ratified the Constitution knew that legal texts would often contain ambiguities. See generally Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary’s Structural Role, 20–21, and Cite as: 575 U. S. (2015) 9 THOMAS, J., concurring in judgment n. 66 ; Nelson, Originalism and Interpretive Con- ventions, 525–526 (2003). As James Madison explained, “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal” The Federalist No. 37, at 229. The judicial power was understood to include the power to resolve these ambiguities over time. See Alexan- der Hamilton lauded this power, arguing that “[t]he inter- pretation of the laws is the proper and peculiar province of the courts.” No. 78, at 467. It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law, but only the judicial interpretation would be considered authoritative in a judicial proceeding. Vile 360. Although the Federalists and Anti-Federalists engaged in a public debate about this interpretive power, that debate centered on the dangers inherent in the power, not on its allocation under the Constitution. See, e.g., Letters from The Federal Farmer XV (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315–316 (H. Storing ed. 1981) (arguing that the interpretive power made the Judiciary the most dangerous branch). Wrig as “Brutus,” one leading anti-Federalist argued that judges “w[ould] not confine themselves to any fixed or established rules, but w[ould] determine, according to what appears to them, the reason and spirit of the constitution.” Essays of Brutus (Jan. 31, 1788), in 2 The Federalists rejected these arguments, assuring the public that judges would be guided “by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 471 (A. Hamilton). Those rules included principles of interpreta- tion that had been set out by |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | principles of interpreta- tion that had been set out by jurists for centuries. See, e.g., 2 S. von Pufendorf, De Officio Hominis Et Civis Juxta 10 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment Legem Naturalem Libri Duo 83–86 (1682) (F. Moore transl. 1927); see also 1 W. Blackstone, Commentaries on the Laws of England 59–61 (1765). One of the key elements of the Federalists’ arguments in support of the allocation of power to make binding inter- pretations of the law was that Article III judges would exercise independent judgment. Although “judicial inde- pendence” is often discussed in terms of independence from external threats, the Framers understood the concept to also require independence from the “internal threat” of “human will.” P. Law and Judicial Duty 507, 508 (2008); see also The Federalist No. 78, at 465 (A. Hamilton) (“The judiciary may truly be said to have neither FORCE nor WILL but merely judgment ”). Independent judgment required judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources. Internal sources might include per- sonal biases, while external sources might include pres- sure from the political branches, the public, or other interested parties. See at 508–521. The Framers made several key decisions at the Conven- tion with these pressures in mind. For example, they rejected proposals to include a federal council of revision after several participants at the Convention expressed concern that judicial involvement in such a council would foster internal biases. Rufus King of Maryland, for exam- ple, asserted that “the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.” 1 Records of the Federal Convention of 1787, at 98. Alexander Hamilton repeated these concerns in The Federalist, arguing that “the judges, who are to be interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capacities” or “be induced to embark too far in the political views of [the Executive]” Cite as: 575 U. S. (2015) 11 THOMAS, J., concurring in judgment from too much association with him. The Federalist No. 73, at 446; see also at 508–512. The Framers also created structural protections in the Constitution to free judges from external influences. They provided, for example, that judges should “hold their Offices during good Behaviour” and receive “a Compensa- tion, which shall not be diminished during their Conu- ance in Office.” Art. III, Hamilton noted that such |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | Conu- ance in Office.” Art. III, Hamilton noted that such unequivocal language had been shown necessary by the experience of the States, where similar state constitutional protections for judges had not been “sufficiently definite to preclude legislative evasions” of the separation of the judicial power. The Federalist No. 79, at 4. Because “power over a man’s subsistence amounts to a power over his will,” he argued that Article III’s structural protections would help ensure that judges fulfilled their constitutional role. The Framers made the opposite choice for legislators and the Executive. Instead of insulag them from exter- nal pressures, the Constitution tied them to those pres- sures. It provided for election of Members of the House of Representatives every two years, Art. I, cl. 1; and selection of Members of the Senate every six years, Art. I, cl. 1. It also provided for the President to be subject to election every four years. Art. II, cl. 1. “The President is [thus] directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame” See v. Olson, 487 U.S. 654, 9 (1988) (SCALIA, J., disseng). To preserve that accountability, we have held that executive officers must be subject to removal by the President to ensure account- ability within the Executive Branch. See Free Enterprise v. Public Company Accoung Oversight Bd., 561 U.S. 477, 495 ; see also (opinion of SCALIA, J.) (“It is not for us to determine, and we have never presumed to determine, how much of the 12 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are”). Given these structural disctions between the branches, it is no surprise that judicial interpretations are defini- tive in cases and controversies before the courts. Courts act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Fed- eralist No. 78, at 467 (A. Hamilton). The Legislature and Executive may be swayed by popular sentiment to aban- don the strictures of the Constitution or other rules of law. But the Judiciary, insulated from both internal and exter- nal sources of bias, is duty bound to exercise independent judgment in applying the law. Interpreg agency regulations calls for that exercise of independent judgment. Substantive regulations have the force and effect of law. See, e.g., United4 Agencies and pri- —————— 4 These cases also raise constitutional questions about |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | pri- —————— 4 These cases also raise constitutional questions about the disction in administrative law between “substantive” (or “legislative”) and interpretative rules. The United States Court of Appeals for the D. C. Circuit has defined a legislative rule as “[a]n agency action that pur- ports to impose legally binding obligations or prohibitions on regulated parties” and an interpretative rule as “[a]n agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties.” National Mining 758 F.3d –252 (2014). And our precedents make clear that administrative agencies must exercise only executive power in promulgag these rules. Arlington v. FCC, 569 U. S. n. 4 (2013) (slip op., at 13, n. 4). But while it is easy to see the promulgation of interpretative rules as an “executive” function—executive officials necessarily interpret the laws they enforce—it is difficult to see what authority the President has “to impose legally binding obligations or prohibitions on regulated parties.” That definition suggests something much closer to the legisla- tive power, which our Constitution does not permit the Executive to exercise in this manner. Because these troubling questions are not Cite as: 575 U. S. (2015) 13 THOMAS, J., concurring in judgment vate parties alike can use these regulations in proceedings against regulated parties. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U. S. – (2012) (slip op., at 6–7) (private party relying on Department of Labor regulations); FCC v. Fox Television Stations, Inc., 567 U. S. (2012) (slip op., at 6) (agency issuing notices of liability under regulations). Just as it is critical for judges to exercise independent judgment in applying statutes, it is critical for judges to exercise independent judgment in determining that a regulation properly covers the conduct of regulated parties. Defining the legal mean- ing of the regulation is one aspect of that determination. Seminole deference, however, precludes judges from independently determining that meaning. Rather than judges’ applying recognized tools of interpretation to determine the best meaning of a regulation, this doctrine demands that courts accord “controlling weight” to the agency interpretation of a regulation, subject only to the narrow exception for interpretations that are plainly erroneous or inconsistent with the regulation. That defer- ence amounts to a transfer of the judge’s exercise of inter- pretive judgment to the agency. See 1 S. Johnson, Dic- tionary of the English Language 499 (4th ed. 1773) (defining “[d]efer” as “to leave to another’s judgment”). But the agency, as part of the Executive Branch, lacks the structural protections for independent judgment adopted |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | Executive Branch, lacks the structural protections for independent judgment adopted by the Framers, including the life tenure and salary pro- tections of Article III. Because the agency is thus not properly constituted to exercise the judicial power under the Constitution, the transfer of interpretive judgment raises serious separation-of-powers concerns. —————— directly implicated here, I leave them for another case. See Department of Transportation v. Association of American Railroads, ante, at 19–22 (THOMAS, J., concurring in judgment). 14 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment 2 Seminole is constitutionally questionable for an additional reason: It undermines the judicial “check” on the political branches. Unlike the Legislative and Execu- tive Branches, each of which possesses several political checks on the other, the Judiciary has one primary check on the excesses of political branches. That check is the enforcement of the rule of law through the exercise of judicial power. Judges have long recognized their responsibility to apply the law, even if they did not conceive of it as a “check” on political power. During the 17th century, for example, King James I sought to pressure Chief Justice Coke to affirm the lawfulness of his efforts to raise reve- nue without the participation of Parliament. Law and Judicial Duty, at 200–201. Coke sought time to confer with his fellow jurists to “make an advised answer according to law and reason.” Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611). But the King’s representative, Lord Chancellor Ellesmere, responded that “he would advise the Judges to maintain the power and prerogative of the King” and suggested that, “in cases in which there is no authority and prece- dent,” the judiciary should “leave it to the King to order in it according to his wisdom.” Coke famously re- sponded, “[T]he King cannot change any part of the com- mon law, nor create any offence by his proclamation, which was not an offence before, without Parliament.” When James I later attempted to do just that, Coke declared the proclamations “ ‘utterly against Law and reason, and for that void.’ ” The Framers expected Article III judges to engage in similar efforts, by applying the law as a “check” on the excesses of both the Legislative and Executive Branches. See, e.g., 3 J. Elliot, Debates in the Several Conventions on the Adoption of the Federal Constitution 553 (1863) (J. Cite as: 575 U. S. (2015) 15 THOMAS, J., concurring in judgment Marshall) (“If [the Government of the United States] make a law not warranted by any of the |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | States] make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would declare it void”); see also Vile 174. The Framers “contem- plated [the Constitution], as a rule for the government of courts, as well as of the legislature.” Thus, if a case involved a conflict between a law and the Constitution, judges would have a duty “to adhere to the latter and disregard the former.” The Federalist No. 78, at 468 (A. Hamilton); see also Similarly, if a case in- volved an executive effort to extend a law beyond its meaning, judges would have a duty to adhere to the law that had been properly promulgated under the Constitu- tion. Cf. at 157–158 (considering the scope of the President’s constitutional power of appointment). As this Court said long ago, “[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written con- stitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” Article III judges cannot opt out of exercising their check. As we have long recognized, “[t]he Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’ ” Zivotofsky v. Clinton, 566 U. S. (2012) (slip op., at 5) ). This responsibility applies not only to constitutional challenges to particular statutes, see, e.g., Shelby County v. Holder, 570 U. S. (2013) (slip op., at 2), including those based on the separation of powers, Free Enterprise –502, but also to more roue questions about the best interpreta- tion of statutes, see, e.g., Whitfield v. United States, 574 U. S. – (2015) (slip op., at 2–3), or the compati- 16 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment bility of agency actions with enabling statutes, Utility Air Regulatory Group v. EPA, 573 U. S. (2014) (slip op., at 10). In each case, the Judiciary is called upon to exercise its independent judgment and apply the law. But we have not consistently exercised the judicial check with respect to administrative agencies. Even though regulated parties have repeatedly challenged agency interpretations as inconsistent with exisg regu- lations, we have just as repeatedly declined to exercise independent judgment as to those claims. Instead, we have deferred to the executive agency that both promul- gated the regulations and enforced them. Although an agency’s interpretation of a regulation might be the best interpretation, it |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | interpretation of a regulation might be the best interpretation, it also might not. When courts refuse even to decide what the best interpretation is under the law, they abandon the judicial check. That abandonment permits precisely the accumulation of governmental pow- ers that the Framers warned against. See The Federalist No. 47, at 302 (J. Madison). C This accumulation of governmental powers allows agen- cies to change the meaning of regulations at their discre- tion and without any advance notice to the parties. It is precisely this problem that the United States Court of Appeals for the D. C. Circuit attempted to address by requiring agencies to undertake notice and comment procedures before substantially revising definitive inter- pretations of regulations. Paralyzed Though legally erroneous, the Court of Appeals’ reasoning was practically sound. When courts give “controlling weight” to an administrative interpretation of a regula- tion—instead of to the best interpretation of it—they effectively give the interpretation—and not the regula- tion—the force and effect of law. To regulated parties, the new interpretation might as well be a new regulation. Cite as: 575 U. S. (2015) 17 THOMAS, J., concurring in judgment These cases provide a classic example of the problem. The Fair Labor Standards Act of 1938 establishes federal minimum wage and overtime requirements, but exempts from these requirements “any employee engaged in a bona fide executive, administrative, or professional capac- ity or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary).” 29 U.S. C. The Department of Labor has accordingly promulgated regula- tions providing that “an employee whose primary duty is selling financial products does not qualify for the adminis- trative exemption.” (b) (2015). Unsure whether certain mortgage-loan officers qualified as employees whose primary duty is selling financial products, the Mortgage Bankers Association asked the Department of Labor for advice. In 2006, the Department concluded that the officers are not employees whose pri- mary duty is selling financial products. But in 2010, the Department reversed course, concluding exactly the oppo- site. If courts accord “controlling weight” to both the 2006 and 2010 interpretations, the regulated entities are sub- ject to two opposite legal rules imposed under the same regulation. This practice turns on its head the principle that the United States is “a government of laws, and not of men.” Regulations provide notice to regulated parties in only a limited sense because their meaning will ultimately be determined by agencies rather than by the “strict rules and precedents” to which Alexan- der Hamilton once referred.5 —————— 5 |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | precedents” to which Alexan- der Hamilton once referred.5 —————— 5 The notice problem is exacerbated by agency departures from the procedures established for rulemaking in the APA. Although almost all rulemaking is today accomplished through informal notice and com- ment, the APA actually contemplated a much more formal process for most rulemaking. To that end, it provided for elaborate trial-like hearings in which proponents of particular rules would introduce 18 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment III Although this Court offered no theoretical justifica- tion for Seminole deference when announcing it, sev- eral justifications have been proposed since. None is persuasive. A Probably the most oft-recited justification for Seminole deference is that of agency expertise in administer- ing technical statutory schemes. Under this justification, deference to administrative agencies is necessary when a “regulation concerns ‘a complex and highly technical regu- latory program’ in which the identification and classifica- tion of relevant ‘criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.’ ” Thomas Jefferson Univ., 512 U.S., at 512. This defense of Seminole deference misidentifies the relevant inquiry. The proper question faced by courts in interpreg a regulation is not what the best policy choice might be, but what the regulation means. Because this Court has concluded that “substantive agency regula- tions have the ‘force and effect of law,’ ” Chrysler Corp. v. —————— evidence and bear the burden of proof in support of those proposed rules. See 5 U.S. C. Today, however, formal rulemaking is the Yeti of administrative law. There are isolated sighgs of it in the ratemaking context, but else- where it proves elusive. It is somewhat ironic for the Court so ada- mantly to insist that agencies be subject to no greater procedures than those required by the APA when we have not been adamant in requir- ing agencies to comply with even those baseline procedures. See United (concluding that the APA’s formal procedures, which were to apply “[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing,” were not triggered by a statute that permitted an agency to engage in rulemaking only “ ‘after [a] hearing’ ”). Cite as: 575 U. S. (2015) 19 THOMAS, J., concurring in judgment Brown, such regulations should be interpreted like any other law. Thus, we should “as- sum[e] that the ordinary meaning of the regulation’s language expresses” its purpose and enforce it “according to its terms.” See (internal quotation marks omitted). Judges are at least as well suited as administra- tive agencies |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | are at least as well suited as administra- tive agencies to engage in this task. Cf. 1 Cranch, at 177 (“It is emphatically the province and duty of the judicial department to say what the law is”). In- deed, judges are frequently called upon to interpret the meaning of legal texts and are able to do so even when those texts involve technical language. See, e.g., Barber v. Gonzales, (interpreg deportation statute according to technical meaning). amentally, the argument about agency expertise is less about the expertise of agencies in interpreg lan- guage than it is about the wisdom of according agencies broad flexibility to administer statutory schemes.6 “But —————— 6 Many decisions of this Court invoke agency expertise as a justifica- tion for deference. This argument has its root in the support for admin- istrative agencies that developed during the Progressive Era in this country. The Era was marked by a move from the individualism that had long characterized American society to the concept of a society organized for collective action. See A. Link, Woodrow Wilson and the Progressive Era 1910–1917, p. 1 That move also reflected a deep disdain for the theory of popular sovereignty. As Woodrow Wilson wrote before he attained the presidency, “Our peculiar American difficulty in organizing administration is not the danger of losing liberty, but the danger of not being able or willing to separate its essentials from its accidents. Our success is made doubtful by that besetg error of ours, the error of trying to do too much by vote.” Wilson, The Study of Administration, 2 Pol. Sci. Q. 197, 214 (1887). In President Wilson’s view, public criticism would be beneficial in the formation of overall policy, but “a clumsy nuisance” in the daily life of Government—“a rustic handling delicate machinery.” Reflecg this belief that bureaucrats might more effectively govern the country than the American people, the progressives ushered in 20 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment policy arguments supporg even useful ‘political inven- tions’ are subject to the demands of the Constitution which defines powers and sets out how those powers are to be exercised.” U.S. 919, (1983). Even in the face of a perceived necessity, the Constitution protects us from ourselves. New York v. United States, B Another oft-recited justification for Seminole def- erence is that agencies are better situated to define the original intent behind their regulations. See Mar v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 152–153 (1991). Under this justification, “[b]ecause the Secretary [of Labor] promulgates th[e] standards, the Secretary is in |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | Secretary [of Labor] promulgates th[e] standards, the Secretary is in a better position to reconstruct the purpose of the regulations in question.” This justification rings hollow. This Court has afforded Seminole deference to agency interpretations even when the agency was not the original drafter. See Pauley, –698 (applying Seminole deference to one agency’s interpretation of another agency’s regula- tions because Congress had delegated authority to both to administer the program). It has likewise granted Semi- nole deference to agency interpretations that are inconsistent with interpretations adopted closer in time to the promulgation of the regulations. See, e.g., Long Island Care at 551 U.S., at Even if the scope of Seminole deference more closely matched the original-drafter justification, it would still fail. It is the text of the regulations that have the force and effect of law, not the agency’s intent. “Citizens —————— significant expansions of the administrative state, ultimately culminat- ing in the New Deal. See generally M. Keller, Regulag a New Economy: Public Policy and Economic Change in America, 1900–1933 Cite as: 575 U. S. (2015) 21 THOMAS, J., concurring in judgment arrange their affairs not on the basis of their legislators’ unexpressed intent, but on the basis of the law as it is written and promulgated.” Zuni Public School Dist. No. (SCALIA, J., disseng). Cf. Wyeth v. Levine, 555 U.S. 555, 586–587 (2009) (THOMAS, J., concurring in judgment) (nog that only “federal standards that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures”—not Congress’ “purposes and objectives”—can become the “law of the land”). “To be governed by legislated text rather than legislators’ inten- tions is what it means to be ‘a Government of laws, not of men.’ ” Zuni Public School Dist. No. at (SCALIA, J., disseng). Only the text of a regulation goes through the procedures established by Congress for agency rulemaking. And it is that text on which the public is entitled to rely. For the same reasons that we should not accord controlling weight to postenactment expressions of intent by individual Members of Congress, see Sullivan v. Finkelstein, (SCALIA, J., concurring in part), we should not accord controlling weight to expressions of intent by administrators of agencies. C A third asserted justification for Seminole defer- ence is that Congress has delegated to agencies the au- thority to interpret their own regulations. See, e.g., Mar- The theory is that, “[b]ecause applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, the power authorita- tively to |
Justice Scalia | 2,015 | 9 | concurring | Perez v. Mortgage Bankers Assn. | https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/ | unique expertise and policymaking prerogatives, the power authorita- tively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” This justification fails because Congress lacks authority 22 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment to delegate the power. As we have explained in an analo- gous context, “[t]he structure of the Constitution does not permit Congress to execute the laws; it follows that Con- gress cannot grant to an officer under its control what it does not possess.” 6 (1986). Similarly, the Constitution does not empower Congress to issue a judicially binding interpretation of the Constitution or its laws. Lacking the power itself, it can- not delegate that power to an agency. To hold otherwise would be to vitiate the separation of powers and ignore the “sense of a sharp necessity to sepa- rate the legislative from the judicial power [that] triumphed among the Framers of the new Federal Consti- tution.” 221 (1995). As this Court has explained, the “essential balance” of the Constitution is that the Legislature is “possessed of power to ‘prescrib[e] the rules by which the duties and rights of every citizen are to be regulated,’ but the power of ‘[t]he interpretation of the laws’ [is] ‘the proper and peculiar province of the courts.’ ” (citation omitted; third brackets added). Although the Constitution imposes a duty on all three branches to interpret the laws within their own spheres, the power to create legally binding interpretations rests with the Judi- ciary. See D A final proposed justification for Seminole defer- ence is that too much oversight of administrative matters would imperil the “independence and esteem” of judges. See, e.g., Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses of Charles Evans Hughes, 1906–1916, p. 185 (2d ed. 1916). The argument goes that questions of administration are those which “lie close to the public impatience,” and thus the courts’ resolution of such questions could Cite as: 575 U. S. (2015) 23 THOMAS, J., concurring in judgment “expose them to the fire of public criticism,” But this argument, which boils down to a policy judg- ment of questionable validity, cannot vitiate the constitu- tional allocation of powers. The Judicial Branch is sepa- rate from the political branches for a reason: It has the obligation to apply the law to cases and controversies that come before it, and concerns about the popular esteem of individual judges—or even the Judiciary as a whole—have no place in that analysis. Our system of Government could not long survive absent adherence to |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | Respondent Michael Loos was injured while working at petitioner BNSF Railway Company’s railyard. Loos sued BNSF under the Federal Employers’ Liability Act (FELA), as amended, 45 U.S. C. et seq., and gained a $126,212.78 jury verdict. Of that amount the jury as- cribed $30,000 to wages lost during the time Loos was unable to work. BNSF moved for an offset against the judgment. The lost wages awarded Loos, BNSF asserted, constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA), 26 U.S. C. et seq. Therefore, BNSF urged, the railway was required to with- hold a portion of the $30,000 attributable to lost wages to cover Loos’s share of RRTA taxes, which came to $3,765. The District Court and the Court of Appeals for the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA. The question presented: Is a railroad’s payment to an employee for working time lost due to an on-the-job injury taxable “compensation” under the RRTA, 26 U.S. C. 2 BNSF R. CO. v. LOOS Opinion of the Court We granted review to resolve a division of opinion on the answer to that question. 584 U. S. (2018). Compare Hance v. Norfolk S. R. Co., 571 F.3d 511, 523 (CA6 2009) (“compensation” includes pay for time lost); Phillips v. Chicago Central & Pacific R. Co., 853 N.W.2d 636, 650–651 (agency reasonably interpreted “compensation” as including pay for time lost); 463, (“compensation” in- cludes pay for time lost), with 1117–1118 (CA8 2017) (case below) (“compensation” does not include pay for time lost); Mickey v. BNSF R. Co., 437 S.W.3d 207, 218 (“compensation” does not include FELA damages for lost wages). We now hold that an award compensating for lost wages is subject to taxation under the RRTA. I In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The system provides generous pensions as well as benefits “correspon[ding] to those an employee would expect to receive were he covered by the Social Security Act.” Two statutes operate in concert to ensure that retired railroad workers receive their allotted pensions and bene- fits. The first, the RRTA, funds the program by imposing a payroll tax on both railroads and their employees. The RRTA refers to the railroad’s contribution as an “excise” tax, 26 U.S. C. and describes the employee’s share as an “income” tax, Congress assigned to the In- ternal Revenue Service (IRS) responsibility for collecting both taxes. 7801.1 The second statute, the Rail- —————— 1 The railroad remits both taxes |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | statute, the Rail- —————— 1 The railroad remits both taxes to the IRS. As to the income tax, the Cite as: 586 U. S. (2019) 3 Opinion of the Court road Retirement Act (RRA), as restated and amended, 45 U.S. C. et seq., entitles railroad work- ers to various benefits and prescribes eligibility require- ments. The RRA is administered by the Railroad Retire- ment Board. See f(a). Taxes under the RRTA and benefits under the RRA are measured by the employee’s “compensation.” 26 U.S. C. §, 3221; 45 U.S. C. b. The RRTA and RRA separately define “compensation,” but both statutes state that the term means “any form of money remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. 45 U.S. C. (h)(1). This language has remained basically unchanged since the RRTA’s enactment in 1937. See Carriers Taxing Act of 1937 (1937 RRTA), (defining “compen- sation” as “any form of money remuneration earned by an individual for services rendered as an employee”). The RRTA excludes from “compensation” certain types of sick pay and disability pay. See 26 U.S. C. (4)(A). The IRS’s reading of the word “compensation” as it appears in the RRTA has remained constant. One year after the RRTA’s adoption, the IRS stated that “compensa- tion” is not limited to pay for active service but reaches, as well, pay for periods of ab See (1938). This understanding has governed for more than eight decades. As restated in the current IRS regulations, “[t]he term compensation is not confined to amounts paid for active service, but includes amounts paid for an identi- fiable period during which the employee is absent from the active service of the employer.” (2017). —————— railroad deducts the amount owed by the employee from her earnings and then forwards that amount to the IRS. See Tr. of Oral Arg. 22–23. See also 26 U.S. C. (employers must “deduct and withhold” income taxes from earnings). 4 BNSF R. CO. v. LOOS Opinion of the Court In 1994, the IRS added, specifically, that “compensation” includes “pay for time ” see 59 Fed. Reg. 66188 (1994). Congress created both the railroad retirement system and the Social Security system during the Great Depres- sion primarily to ensure the financial security of members of the workforce when they reach old age. See Wisconsin Central Ltd. v. United States, 585 U. S. (2018) (slip op., at 1); (1937). Given the similarities in timing and purpose of the two programs, it is hardly surprising that their statutory foundations mirror each other. Regarding Social Security, the Federal Insurance Contributions |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | mirror each other. Regarding Social Security, the Federal Insurance Contributions Act (FICA), 26 U.S. C. et seq., taxes employers and employees to fund benefits, which are distributed pursuant to the Social Security Act (SSA), as amended, 42 U.S. C. et seq. Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” See –636. Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compen- sation.” “Wages” under the FICA and the SSA mean “all remuneration for employment,” and “employment,” in turn, means “any service, of whatever nature, performed by an employee.” 26 U.S. C. (FICA); see 42 U.S. C. 410(a) (SSA). Reading these pre- scriptions together, the term “wages” encompasses “all remuneration” for “any service, of whatever nature, per- formed by an employee.” II A To determine whether RRTA-qualifying “compensation” includes an award of damages for lost wages, we begin Cite as: 586 U. S. (2019) 5 Opinion of the Court with the statutory text.2 The RRTA defines “compensa- tion” as “remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. This definition, as just noted, is materially indistinguishable from the FICA’s definition of “wages” to include “remuner- ation” for “any service, of whatever nature, performed by an employee.” Given the textual similarity between the definitions of “compensation” for railroad retirement purposes and “wages” for Social Security purposes, our decisions on the meaning of “wages” in Social Security Bd. v. 327 U.S. 358 (1946), and United inform our comprehension of the RRTA term “compensation.” In the National Labor Relations Board found that an employee had been “wrongfully discharged for union activity” and awarded him The Social Security Board refused to credit the backpay award in calculating the employee’s benefits. at 365–366. In the Board’s view, “wages” covered only pay for active service. We disagreed. Emphasizing that the phrase “any service performed” denotes “breadth of coverage,” we held that “wages” means remuneration for “the entire employer- employee relationship”; in other words, “wages” embraced pay for active service plus pay received for periods of absence from active service. Backpay, we —————— 2 Before turning to the language of the RRTA, the dissent endeavors to unearth the reason why BNSF has pursued this case. The railroad’s “gambit,” the dissent surmises, is to increase pressure on injured workers to settle their claims. Post, at 3. Contrast with the dissent’s conjecture, BNSF’s entirely plausible account of a railroad’s stake in this dispute. Because the RRA credits lost wages toward an employee’s benefits, see 45 U.S. C. (h)(1), |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | wages toward an employee’s benefits, see 45 U.S. C. (h)(1), BNSF posits that immunizing those payments from RRTA taxes would expose the system to “a long-term risk of insolvency.” Tr. of Oral Arg. 4; see Reply Brief for Petitioner 14. 6 BNSF R. CO. v. LOOS Opinion of the Court reasoned, counts as “wages” because it compensates for “the loss of wages which the employee suffered from the employer’s wrong.” In Quality Stores, we again trained on the meaning of “wages,” reiterating that “Congress chose to define wages broadly.” (internal quotation marks omitted). Guided by Quality Stores held that severance payments qualified as “wages” taxable under the FICA. “[C]ommon sense,” we observed, “dictates that employees receive th[ose] payments ‘for employment.’ ” Severance payments, the Court spelled out, “are made to employees only,” “are made in considera- tion for employment,” and are calculated “according to the function and seniority of the [terminated] employee.” at 146–147. In line with Quality Stores, and the IRS’s long held construction, we hold that “compensation” under the RRTA encompasses not simply pay for active service but, in addition, pay for periods of absence from active ser- vice—provided that the remuneration in question stems from the “employer-employee relationship.” 327 U.S., B Damages awarded under the FELA for lost wages fit comfortably within this definition. The FELA “makes railroads liable in money damages to their employees for on-the-job injuries.” BNSF R. Co. v. Tyrrell, 581 U. S. (2017) (slip op., at 1); see 45 U.S. C. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for, inter alia, working time lost due to the employer’s wrongdoing. FELA dam- ages for lost wages, then, are functionally equivalent to an award of backpay, which compensates an employee “for a period of time during which” the employee is “wrongfully Cite as: 586 U. S. (2019) 7 Opinion of the Court separated from his job.” 327 U.S., Just as held that backpay falls within the definition of “wages,” ibid., we conclude that FELA damages for lost wages qualify as “compensation” and are therefore taxable under the RRTA. III A The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for “services that an employee actually renders,” in other words, pay for active service. Consequently, the court held that “compensation” within the RRTA’s compass did not reach pay for periods of ab- In so ruling, the Court of Ap- peals attempted to distinguish and Quality Stores. The Social Security decisions, the court |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | distinguish and Quality Stores. The Social Security decisions, the court said, were inapposite because the FICA “taxes payment for ‘employ- ment,’ ” whereas the RRTA “tax[es] payment for ‘services.’ ” As noted, at 3–4, the FICA defines “employment” in language resembling the RRTA in all relevant respects. Compare 26 U.S. C. (FICA) (“any service, of whatever nature, per- formed by an employee”) with (RRTA) (“services rendered as an employee”). Construing RRTA “compensation” as less embracive than “wages” covered by the FICA would introduce an unwarranted disparity between terms Congress appeared to regard as equiva- lents. The reasoning of and Quality Stores, as we see it, resists the Eighth Circuit’s swift writeoff.3 and Quality Stores apart, we would in any event conclude that the RRTA term “compensation” covers —————— 3 The dissent’s reduction of ’s significance fares no better. the dissent urges, is distinguishable because it involved “a different factual context.” Post, at 7. But as just at 6–7, the facts in resemble those here in all material respects. 8 BNSF R. CO. v. LOOS Opinion of the Court pay for time Restricting “compensation” to pay for active service, the Court of Appeals relied on statutory history and, in particular, the eventual deletion of two references to pay for time lost contained in early rendi- tions of the RRTA. See also post, at 6–7 (presenting the Eighth Circuit’s statutory history argument). To under- stand the Eighth Circuit’s position, and why, in our judg- ment, that position does not withstand scrutiny, some context is in order. On enactment of the RRTA in 1937, Congress made “compensation” taxable at the time it was earned and provided specific guidance on when pay for time lost should be “deemed earned.” Congress instructed: “The term ‘compensation’ means any form of money remunera- tion earned by an individual for services rendered as an employee including remuneration paid for time lost as an employee, but [such] remuneration shall be deemed earned in the month in which such time is ” 1937 RRTA, In 1946, Congress clarified that the phrase “pa[y] for time lost” meant payment for “an identifiable period of absence from the active service of the employer, including absence on account of personal injury.” Act of July 31, 1946 (1946 Act), Thus, originally, the RRTA stated that “compensation” included pay for time lost, and the language added in 1946 presupposed the same. In subsequent amendments, how- ever, Congress removed the references to pay for time First, in 1975, Congress made “compensation” taxable when paid rather than when earned. Congress simultane- ously removed the 1937 language that both |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | earned. Congress simultane- ously removed the 1937 language that both referred to pay for time lost and specified when such pay should be “deemed earned.” So amended, the definitional sentence, in its current form, reads: “The term ‘compensation’ means any form of money remuneration paid to an individual for services rendered as an employee” Act of Aug. 9, Cite as: 586 U. S. (2019) 9 Opinion of the Court 1975 (1975 Act), Second, in 1983, Congress shifted the wage base for RRTA taxes from monthly “compensation” to annual “compensation.” See Railroad Retirement Solvency Act of 1983 (1983 Act), –425. Because the “monthly wage bases for railroad retirement taxes [were being] changed to annual amounts,” the House Report the RRTA required “[s]everal technical and conforming amendments.” H. R. Rep. No. 98–30, pt. 2, p. 29 (1983). In a section of the 1983 Act titled “Technical Amendments,” Congress struck the subsection containing, among other provisions, the 1946 Act’s clarification of pay for time 1983 Act, –425. In lieu of the deleted subsection, Congress inserted detailed instruc- tions concerning the new annual wage base. As the Court of Appeals and the dissent see it, the 1975 and 1983 deletions show that “compensation” no longer includes pay for time ; see post, at 6–7. We are not so sure. The 1975 Act left unaltered the language at issue here, “remuneration for services rendered as an employee.” That Act also left intact the 1946 Act’s description of pay for time Continuing after the 1975 Act, then, such pay remained RRTA-taxable “compensation.” The 1983 Act, as billed by Congress, effected only “[t]echnical [a]mendments” relating to the change from monthly to annual computation of “compen- sation.” Concerning the 1975 and 1983 alterations, the IRS concluded that Congress revealed no “inten[tion] to exclude payments for time lost from compensation.” 59 Fed. Reg. 66188 (1994). We credit the IRS reading. It would be passing strange for Congress to restrict substan- tially what counts as “compensation” in a manner so oblique. Moreover, the text of the RRTA continues to indicate that “compensation” encompasses pay for time The RRTA excludes from “compensation” a limited subset of 10 BNSF R. CO. v. LOOS Opinion of the Court payments for time lost, notably certain types of sick pay and disability pay. See 26 U.S. C. (4). These enumerated exclusions would be entirely superfluous if, as the Court of Appeals held, the RRTA broadly excludes from “compensation” any and all pay received for time In justification of its confinement of RRTA-taxable receipts to pay for active service, the Court of Appeals also referred to |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | for active service, the Court of Appeals also referred to the RRA. The RRA, like the RRTA as enacted in 1937, states that “compensation” “includ[es] remunera- tion paid for time lost as an employee” and specifies that such pay “shall be deemed earned in the month in which such time is ” 45 U.S. C. (h)(1). Pointing to the discrepancy between the RRA and the amended RRTA, which no longer contains the above-quoted language, the Court of Appeals concluded that Congress intended the RRA, but not the RRTA, to include pay for time Accord post, at 7. Although “ ‘[w]e usually presume differ- ences in language convey differences in meaning,’ ” Wisconsin Central, 585 U. S., at (slip op., at 4), Con- gress’ failure to reconcile the RRA and the amended RRTA is inconsequential. As just the RRTA’s pinpointed exclusions from RRTA taxation signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” B Instead of adopting lockstep the Court of Appeals’ inter- pretation, Loos takes a different approach. In his view, echoed by the dissent, “remuneration for services rendered” means the “package of benefits” an employer pays “to retain the employee.” Brief for Respondent 37; post, at 3–4. He therefore agrees with BNSF that benefits like sick pay and vacation pay are taxable “compensation.” He contends, that FELA damages for lost wages are of a different order. They are not part of an employee’s “package of benefits,” he observes, and therefore should Cite as: 586 U. S. (2019) 11 Opinion of the Court not count as “compensation.” Such damages, Loos urges, “compensate for an injury” rather than for services ren- dered. Brief for Respondent 20; post, at 3–4. Loos argues in the alternative that even if voluntary settlements qualify as “compensation,” “involuntary payment[s]” in the form of damages do not. Brief for Respondent 33. Our decision in undermines Loos’s argument that, unlike sick pay and vacation pay, payments “com- pensat[ing] for an injury,” Brief for Respondent 20, are not taxable under the RRTA. We held in that an award of backpay compensating an employee for his wrongful discharge ranked as “wages” under the SSA. That was so, we because the backpay there awarded to the employee redressed “the loss of wages” occasioned by “the employer’s wrong.” 327 U.S., ; see Applying that reasoning here, there should be no dispositive difference between a payment voluntarily made and one required by law.4 Nor does United aid Loos’s argument, repeated by the dissent. See post, at 8. Indeed, Cleveland Indians reasserted ’s holding that “backpay for a time in —————— 4 The |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | holding that “backpay for a time in —————— 4 The dissent, building on Loos’s argument, tenders an inapt analogy between passengers and employees. If BNSF were ordered to pay damages for lost wages to an injured passenger, the dissent asserts, one would not say the passenger had been compensated “for services rendered.” There is no reason, the dissent concludes, to “reach a different result here simply because the victim of BNSF’s negligence happened to be one of its own workers.” Post, Under the RRTA, this distinction is of course critical. The passenger’s damages for lost wages are not taxable under the RRTA, for she has no employ- ment relationship with the railroad. In contrast, FELA damages for lost wages are taxable because they are paid only if the injured person previously “rendered [services] as an employee,” 26 U.S. C. and, indeed, was working for the railroad when the injury occurred, see 45 U.S. C. 12 BNSF R. CO. v. LOOS Opinion of the Court which the employee was not on the job” counts as pay for services, and therefore ranks as Cleveland Indians then took up a discrete, “secondary issue” presented, one not in contention here, i.e., whether for taxation purposes backpay is allocable to the tax period when paid rather than an earlier time-earned 213–214, 219–220. Moreover, Quality Stores, which postdated Cleveland Indians, left no doubt that what qualifies under as “wages” for benefit purposes also qualifies as such for taxation pur- –147. C Loos presses a final reason why he should not owe RRTA taxes on his lost wages award. Loos argues, and the District Court held, that the RRTA’s tax on employees does not apply to personal injury damages. He observes that the RRTA taxes “the income of each employee.” 26 U.S. C. (a)–(b) He then cites a provision of the Internal Revenue Code, 26 U.S. C. This provision exempts “damages received on account of personal physical injuries” from federal income taxation by excluding such damages from “gross income.” Loos urges that the exclusion of personal injury damages from “gross income” should carry over to the RRTA’s tax on the “income” of railroad workers, (a)–(b). The argument is unconvincing. As the Government points out, the District Court, echoed by Loos, conflated “the distinct concepts of ‘gross income,’ [a prime compo- nent of] the tax base on which income tax is collected, and ‘compensation,’ the separately defined category of pay- ments that are taxable under the RRTA.” Brief for United States as Amicus Curiae 15. Blending tax bases that Congress kept discrete, the District Court and Loos proffer |
Justice Ginsburg | 2,019 | 5 | majority | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | that Congress kept discrete, the District Court and Loos proffer a scheme in which employees pay no tax on damages Cite as: 586 U. S. (2019) 13 Opinion of the Court compensating for personal injuries; railroads pay the full excise tax on such compensation; and employees receive full credit for the compensation in determining their re- tirement benefits. That scheme, is not plausibly attributable to Congress. For federal income tax purposes, “gross income” means “all income” “[e]xcept as otherwise provided.” 26 U.S. C. see 63 (imposing a tax on “taxable income,” de- fined as “gross income minus deductions”). Congress provided detailed prescriptions on the scope of “gross income,” excluding from its reach numerous items, among them, personal injury damages. See Conspic- uously absent from the RRTA, is any reference to “gross income.” As employed in the RRTA, the word “in- come” merely distinguishes the tax on the employee, an “income tax,” from the matching tax on the railroad, called an “excise tax.” §, 3221. See also 1937 RRTA, (establishing an “income tax on em- ployees” and an “excise tax on employers”); S. Rep. No. 818, 75th Cong., 1st Sess., 5 (1937) (stating that the RRTA imposes an “income tax on employees” and an “excise tax on employers”); H. R. Rep. No. 1071, 75th Cong., 1st Sess., 6 (1937) (same). Congress, we reiterate, specified not “gross income” but employee “compensation” as the tax base for the RRTA’s income and excise taxes. §, 3221. Congress then excepted certain payments from the calculation of “com- pensation.” See Congress adopted by cross-reference particular Internal Revenue Code ex- clusions from “gross income,” thereby carving out those specified items from RRTA coverage. See (9)–(11). Tellingly, Congress did not adopt for RRTA purposes the exclusion of personal injury damages from federal income taxation set out in We note, furthermore, that if RRTA taxes were based on “income” or “gross income” rather than “compensation,” the RRTA 14 BNSF R. CO. v. LOOS Opinion of the Court tax base would sweep in nonrailroad income, including, for example, dividends, interest accruals, even lottery winnings. Shifting from “compensation” to “income” as the RRTA tax base would thus saddle railroad workers with more RRTA taxes. Given the multiple flaws in Loos’s last ditch argument, we conclude that does not exempt FELA dam- ages from the RRTA’s income and excise taxes. * * * In harmony with this Court’s decisions in and Quality Stores, we hold that “compensation” for RRTA purposes includes an employer’s payments to an employee for active service and for periods of absence from active service. It is immaterial whether |
Justice Brennan | 1,972 | 13 | majority | Gooding v. Wilson | https://www.courtlistener.com/opinion/108492/gooding-v-wilson/ | Appellee was convicted in Superior Court, Fulton County, Georgia, on two counts of using opprobrious words and abusive language in violation of Georgia Code *519 Ann. 26-6303, which provides: "Any person who shall, without provocation, use to or of another, and in his presence opprobrious words or abusive language, tending to cause a breach of the peace shall be guilty of a misdemeanor." Appellee appealed the conviction to the Supreme Court of Georgia on the ground, among others, that the statute violated the First and Fourteenth Amendments because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Appellee then sought federal habeas corpus relief in the District Court for the Northern District of Georgia. The District Court found that, because appellee had failed to exhaust his available state remedies as to the other grounds he relied upon in attacking his conviction, only the contention that 26-6303 was facially unconstitutional was ripe for decision.[1] On the merits *520 of that question, the District Court, in disagreement with the Georgia Supreme Court, held that 26-6303, on its face, was unconstitutionally vague and broad and set aside appellee's conviction. The Court of Appeals for the Fifth Circuit affirmed. We noted probable jurisdiction of the 's appeal, We affirm. Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, ; Only the Georgia courts can supply the requisite construction, since of course "we lack jurisdiction authoritatively to construe state legislation." United It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe *521 speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," the transcendent value to all society of constitutionally protected expression is deemed to justify allowing "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity," ; see also ; ; ; United ; This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression. "Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct |
Justice Brennan | 1,972 | 13 | majority | Gooding v. Wilson | https://www.courtlistener.com/opinion/108492/gooding-v-wilson/ | vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights." (citation omitted). The constitutional guarantees of freedom of speech forbid the s to punish the use of words or *522 language not within "narrowly limited classes of speech." Even as to such a class, however, because "the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn," "[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom," In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." at Appellant does not challenge these principles but contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words"fighting" words"those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." In Chaplinsky, we sustained a conviction under Chapter 378, 2, of the Public Laws of New which provided: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name" Chaplinsky was convicted for addressing to another on a public sidewalk the words, "You are a God damned racketeer," and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New however, "long before *523 the words for which Chaplinsky was convicted," sharply limited the statutory language "offensive, derisive or annoying word" to "fighting" words: "[N]o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed "The test is what men of common intelligence |
Justice Brennan | 1,972 | 13 | majority | Gooding v. Wilson | https://www.courtlistener.com/opinion/108492/gooding-v-wilson/ | is addressed "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. Derisive and annoying words can be taken as coming within the purview of the statute only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. "The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee" 91 N. H. 310, 313, 320-321, In view of that authoritative construction, this Court held: "We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace." Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression, ; ; see We reaffirm that proposition today. *524 Appellant argues that the Georgia appellate courts have by construction limited the proscription of 26-6303 to "fighting" words, as the New Supreme Court limited the New statute. "A consideration of the [Georgia] cases construing the elements of the offense makes it clear that the opprobrious words and abusive language which are thereby prohibited are those which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person, and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in statutory language what this Court has previously denominated `fighting words.' " Brief for Appellant 6. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, "Thus, in the decisions brought to this Court's attention, no meaningful attempt has been made to limit or properly define these terms." The District Judge and one member of the unanimous Court of Appeals panel were Georgia practitioners before they ascended the bench.[2] Their views of Georgia law necessarily are persuasive with us. C. Wright, Law of Federal Courts 58, pp. 240-241 We have, however, made our own examination of the Georgia cases, both those cited and others discovered in research. That examination brings us to the conclusion, in agreement with the courts below, that the Georgia appellate decisions have not construed 26-6303 to be limited in application, as in Chaplinsky, |
Justice Brennan | 1,972 | 13 | majority | Gooding v. Wilson | https://www.courtlistener.com/opinion/108492/gooding-v-wilson/ | construed 26-6303 to be limited in application, as in Chaplinsky, to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." * The dictionary definitions of "opprobrious" and "abusive" give them greater reach than "fighting" words. Webster's Third New International Dictionary defined "opprobrious" as "conveying or intended to convey disgrace," and "abusive" as including "harsh insulting language." Georgia appellate decisions have construed 26-6303 to apply to utterances that, although within these definitions, are not "fighting" words as Chaplinsky defines them. In a conviction under the statute was sustained for awakening 10 women scout leaders on a camp-out by shouting, "Boys, this is where we are going to spend the night." "Get the G d bed rolls out let's see how close we can come to the G d tents." Again, in the Georgia Supreme Court held that a jury question was presented by the remark, "You swore a lie." Again, held that a jury question was presented by the words addressed to another, "God damn you, why don't you get out of the road?" Plainly, although "conveying disgrace" or "harsh insulting language," these were not words "which by their very utterance tend to incite an immediate breach of the peace." Georgia appellate decisions construing the reach of "tending to cause a breach of the peace" underscore that 26-6303 is not limited, as appellant argues, to words that "naturally tend to provoke violent resentment." and Indeed, the Georgia Court of Appeals[3] in Elmore v. construed "tending to cause a breach of the peace" as mere "words of description, indicating the kind or character of opprobrious or abusive language that is penalized, and the use of language of this character is a violation of the statute, even though it be addressed to one who, on account of circumstances or by virtue of the obligations of office, can not actually then and there resent the same by a breach of the peace ". Suppose that one, at a safe distance and out of hearing of any other than the person to whom he spoke, addressed such language to one locked in a prison cell or on the opposite bank of an impassable torrent, and hence without power to respond immediately to such verbal insults by physical retaliation, could it be reasonably contended that, because no breach of the peace could then follow, the statute would not be violated? ". [T]hough, on account of circumstances or obligations imposed by office, one may not be able at the time to assault and beat another |
Justice Brennan | 1,972 | 13 | majority | Gooding v. Wilson | https://www.courtlistener.com/opinion/108492/gooding-v-wilson/ | be able at the time to assault and beat another on account of such language, it might still tend to cause a breach of the peace at some future time, when the person to whom it was addressed might be no longer hampered by physical inability, present conditions, or official position." -800.[4] *527 Moreover, in Samuels v. the Court of Appeals, in applying another statute, adopted from a textbook the common-law definition of "breach of the peace." "The term `breach of the peace' is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community By `peace,' as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members." This definition makes it a "breach of peace" merely to speak words offensive to some who hear them, and so sweeps too broadly. 394 U. S., at "[H]ow infinitely more doubtful and uncertain are the boundaries of an offense including any `diversion tending to a breach of the peace'." (emphasis supplied). Accordingly, we agree with the District Court that our decisions in and compel the conclusion that 26-6303, as construed, does not define the standard of responsibility with requisite narrow specificity. In Ashton we held that "to make an offense of conduct which is `calculated to create disturbances of the peace' leaves wide open the standard of responsibility." In the statute struck down included as an element congregating with others "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby." As the District Court observed, "[a]s construed by the Georgia courts, especially in the instant case, the Georgia provision as to breach of the peace is even broader than the Louisiana statute." *528 We conclude that "[t]he separation of legitimate from illegitimate speech calls for more sensitive tools than [Georgia] has supplied." 357 U. S., at The most recent decision of the Georgia Supreme Court, in rejecting appellee's attack on the constitutionality of 26-6303, stated that the statute "conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice." 156 S. E. 2d, at 448. Because earlier appellate decisions applied 26-6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt "measured by common understanding and practice" does not |
Justice Alito | 2,017 | 8 | concurring | Fry v. Napoleon Community Schools | https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/ | I join all of the opinion of the Court with the exception of its discussion (in the text from the beginning of the first new paragraph on page 15 to the end of the opinion) in which the Court provides several misleading “clue[s],” ante, at 15, for the lower courts. The Court first instructs the lower courts to inquire whether the plaintiff could have brought “essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library.” Next, the Court says, a court should ask whether “an adult at the school—say, an employee or visitor—[could] have pressed essentially the same griev- ance.” These clues make sense only if there is no overlap between the relief available under the following two sets of claims: (1) the relief provided by the Individu- als with Disabilities Education Act (IDEA), and (2) the relief provided by other federal laws (including the Consti- tution, the Americans with Disabilities Act of 1990 (ADA), and the Rehabilitation Act of 1973). The Court does not show or even claim that there is no such overlap—to the contrary, it observes that “[t]he same conduct might vio- 2 FRY v. NAPOLEON COMMUNITY SCHOOLS Opinion of ALITO, J. late” the ADA, the Rehabilitation Act and the IDEA. And since these clues work only in the absence of overlap, I would not suggest them. The Court provides another false clue by suggesting that lower courts take into account whether parents, before filing suit under the ADA or the Rehabilitation Act, began to pursue but then abandoned the IDEA’s formal proce- dures. Ante, at 17–18. This clue also seems to me to be ill-advised. It is easy to imagine circumstances under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot provide. The parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute. Although the Court provides these clues for the purpose of assisting the lower courts, I am afraid that they may have the opposite effect. They are likely to confuse and lead courts astray |
Justice Scalia | 2,002 | 9 | concurring | United States v. Arvizu | https://www.courtlistener.com/opinion/118474/united-states-v-arvizu/ | I join the opinion of the Court, because I believe it accords with our opinion in requiring de novo review which nonetheless gives "due weight to inferences drawn from [the] facts by resident judges" As I said in my dissent in Ornelas, however, I do not see how deferring to the District Court's factual inferences (as opposed to its findings of fact) is compatible with de novo review. The Court today says that "due weight" should have been given to the District Court's determinations that the children's waving was "`methodical,' `mechanical,' `abnormal,' and `certainly a fact that is odd and would lead a reasonable officer to wonder why they are doing this.' " Ante, at 276. "Methodical," "mechanical," and perhaps even "abnormal" and "odd," are findings of fact that deserve respect. But the inference that this "would lead a reasonable officer to wonder why they are doing this," amounts to the conclusion that their action was suspicious, which I would have thought (if de novo review is the standard) is the prerogative of the Court of Appeals. So we have here a peculiar sort of de novo review. I may add that, even holding the Ninth Circuit to no more than the traditional methodology of de novo review, its judgment here would have to be reversed. |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | When this case first came before the Court, I had thought it presented a single, well-defined issuethat is, whether the Congress could authorize by a narrowly drawn statute the prosecution of a Senator or Representative for conduct otherwise immune from prosecution under the Speech or Debate Clause of the Constitution. Counts 1, 3, 5, and 7 of the indictment charged Senator Brewster with receiving $19,000 "in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity [as a member of the Senate Post Office Committee]." Count 9 charged the Senator with receipt of another $5,000 for acts already performed by him with respect to his "action, vote and decision" on that legislation. These charges, it seemed to me, fell within the clear prohibition of the Speech or Debate Clause as interpreted by decisions of this Court, particularly United *530 For if the indictment did not call into question the "speeches or debates" of the Senator, it certainly laid open to scrutiny the motives for his legislative acts; and those motives, I had supposed, were no more subject to executive and judicial inquiry than the acts themselves, unless, of course, the Congress could delegate such inquiry to the other branches. That, apparently, was the Government's view of the case as well. At the hearing before the District Court the prosecutor was asked point blank whether "the indictment in any wise allege[d] that Brewster did anything not related to his purely legislative functions." The prosecutor responded: "We are not contending that what is being charged here, that is, the activity by Brewster, was anything other than a legislative act. We are not ducking the question; it is squarely presented. They are legislative acts. We are not going to quibble over that." App. 28. The Government, in other words, did not challenge the applicability of the Clause to these charges, but argued only that its prohibitions could be avoided, "waived" as it were, through congressional authorization in the form of a narrowly drawn bribery statute. The District Court accepted the Government's reading of the indictment and held that the Senator could not be prosecuted for this conduct even under the allegedly narrow provisions of 18 U.S. C. 201: "Gentlemen, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | bribes in connection with the performance of a legislative function by a Senator of the United States. *531 "It is the of this Court that the immunity under the Speech and Debate Clause of the Constitution, particularly in view of the interpretation given that Clause by the Supreme Court in shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act." App. 33. Furthermore, the Government's initial brief in this Court, doubtless reflecting its recognition that had rejected the analysis adopted by the Court today, did not argue that a prosecution for acceptance of a bribe in return for a promise to vote a certain way falls outside the prohibition of the Speech or Debate Clause. Rather, the Government's brief conceded or at least assumed that such conduct does constitute "Speech or Debate," but urged that Congress may enact a statute, such as 18 U.S. C. 201, providing for judicial trial of the alleged crime. Given these admissions by the Government and the District Court's construction of the indictment, which settled doctrine makes binding on this Court, United the only issue properly before us was whether Congress is empowered to delegate to the Executive and Judicial Branches the trial of a member for conduct otherwise protected by the Clause. Today, however, the Court finds it unnecessary to reach that issue, for it finds that the indictment, though charging receipt of a bribe for legislative acts, entails "no inquiry into legislative acts or motivation for legislative acts," ante, at 525, and thus is not covered by the Clause. In doing so the Court permits the Government to recede from its firm admissions, it ignores the District Court's binding construction of the *532 indictment, andmost importantit repudiates principles of legislative freedom developed over the past century in a line of cases culminating in Those principles, which are vital to the right of the people to be represented by Congressmen of independence and integrity, deserve more than the hasty burial given them by the Court today. I must therefore dissent. I I would dispel at the outset any notion that Senator Brewster's asserted immunity strains the outer limits of the Clause. The Court writes at length in an effort to show that "Speech or Debate" does not cover "all conduct relating to the legislative process." Ante, at 515. Even assuming the validity of that conclusion, I fail to see its relevance to the instant case. Senator Brewster is not charged with conduct merely "relating to the legislative process," but with a crime whose proof calls into question |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | process," but with a crime whose proof calls into question the very motives behind his legislative acts. The indictment, then, lies not at the periphery but at the very center of the protection that this Court has said is provided a Congressman under the Clause. Decisions of this Court dating as far back as have consistently refused to limit the concept of "legislative acts" to the "Speech or Debate" specifically mentioned in Art. I, 6. In the Court held that: "It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally *533 done in a session of the House by one of its members in relation to the business before it." In reaching its conclusion, the Court adopted what was said by the Supreme Judicial Court of Massachusetts in which Kilbourn held to be perhaps "the most authoritative case in this country on the construction of the provision in regard to freedom of debate in legislative bodies" 103 U.S., Chief Justice Parsons, speaking for the Massachusetts court, expressed what Kilbourn and later decisions saw as a properly generous view of the legislative privilege: "These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office; without enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives' chamber." *534 There can be no doubt, therefore, that Senator Brewster's vote on new postal rates constituted legislative activity within the meaning of the Clause. The Senator could not be prosecuted or called to answer for his vote in any judicial or executive proceeding. But the Senator's immunity, I submit, goes beyond the vote itself and precludes all extra-congressional scrutiny as to how and why he cast, or would have cast, his vote a certain way. In the plaintiff charged that a state legislative hearing was being conducted not for a proper legislative purpose but solely as a means of harassing him. Nevertheless the Court held that no action would lie against the committee members under federal civil rights statutes. Mr. Justice Frankfurter : "The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. ". In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging *535 or correcting such abuses." at 377-. Barring congressional power to authorize this prosecution, what has been said thus far would seem sufficient to require affirmance of the order of dismissal, for neither Senator Brewster's vote nor his motives for voting, however dishonorable, may be the subject of a civil or criminal proceeding outside the halls of the Senate. There is nothing complicated about this conclusion. It follows simply and inescapably from prior decisions of this Court, setting forth the most basic elements of legislative immunity. Yet the Court declines to apply those principles to this case, for it somehow finds that the Government can prove its case without referring to the Senator's official acts or motives. According to |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | referring to the Senator's official acts or motives. According to the Court, the Government can limit its proof on Counts 1, 3, 5, and 7 to evidence concerning Senator Brewster's "taking or agreeing to take money for a promise to act in a certain way," and need not show "that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise." Ante, at 526. Similarly, the Court finds that Count 9 can be proved merely by showing that the Senator solicited or received money "with knowledge that the donor was paying him compensation for an official act," without any inquiry "into the legislative performance itself." Ante, at 527. These evidentiary limitations are deemed sufficient to avoid the prohibitions of the Speech or Debate Clause. With all respect, I think that the Court has adopted a wholly artificial view of the charges before us. The indictment alleges, not the mere receipt of money, but the receipt of money in exchange for a Senator's vote and promise to vote in a certain way. Insofar as these charges bear on votes already cast, the Government cannot *536 avoid proving the performance of the bargained-for acts, for it is the acts themselves, together with the motivating bribe, that form the basis of Count 9 of the indictment. Proof of "knowledge that the donor was paying for an official act" may be enough for conviction under 201 (g). But assuming it is, the Government still must demonstrate that the "official act" referred to was actually performed, for that is what the indictment charges. Count 9, in other words, calls into question both the performance of official acts by the Senator and his reasons for voting as he did. Either inquiry violates the Speech or Debate Clause. The counts charging only a corrupt promise to vote are equally repugnant to the Clause. The Court may be correct that only receipt of the bribe, and not performance of the bargain, is needed to prove these counts. But proof of an agreement to be "influenced" in the performance of legislative acts is by definition an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial. Furthermore, judicial inquiry into an alleged agreement of this kind carries with it the same dangers to legislative independence that are held to bar accountability for official conduct itself. As our Brother WHITE cogently states, post, at 556: "Bribery is most often carried out by prearrangement; if that part of the transaction may |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | out by prearrangement; if that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congressman to know that he cannot be prosecuted for his vote, whatever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain." *537 Thus, even if this were an issue of first impression, I would hold that this prosecution, being an extra-congressional inquiry into legislative acts and motives, is barred by the Speech or Debate Clause. What is especially disturbing about the Court's result, however, is that this is not an issue of first impression, but one that was settled six years ago in United There a former Congressman was charged with violating the federal conflict-of-interest statute, 18 U.S. C. 281 (1964 ed.), and with conspiring to defraud the United States, 18 U.S. C. 371, by accepting a bribe in exchange for his agreement to seek dismissal of federal indictments pending against officers of several savings and loan companies. Part of the alleged conspiracy was a speech delivered by on the floor of the House, favorable to loan companies generally. The Government relied on that speech at trial and questioned extensively about its contents, authorship, and his reasons for delivering it. The Court of Appeals set aside the conspiracy conviction, holding that the Speech or Debate Clause barred such a prosecution based on an allegedly corrupt promise to deliver a congressional speech. In appealing that decision the Government made the very same argument that appears to persuade the Court today: "[The rationale of the Clause] is applicable in suits based upon the content of a legislator's speech or action, where immunity is necessary to prevent impediments to the free discharge of his public duties. But it does not justify granting him immunity from prosecution for accepting or agreeing to accept money to make a speech in Congress. The latter case poses no threat which could reasonably cause a Congressman to restrain himself in his official speech, because no speech, as such, is being *538 questioned. It is only the antecedent conduct of accepting or agreeing to accept the bribe which is attacked in such a prosecution. `Whether the party taking the bribe lives up to his corrupt promise or not is immaterial. The agreement is the essence of the offense; when that is consummated, the offense is complete.' 3 Wharton, Criminal Law and Procedure, 1383 Thus, if respondent, after accepting the bribe, |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | and Procedure, 1383 Thus, if respondent, after accepting the bribe, had failed to carry out his bargain, he could still be prosecuted for the same offense charged here, but it could not be argued that any speech was being `questioned' in his prosecution. The fact that respondent fulfilled his bargain and delivered the corrupt speech should not render the entire course of conduct constitutionally protected." Brief for the United States in United No. 25, O. T. 1965, pp. 10-11. The answered this argument in two places. After emphasizing that the prosecution at issue was "based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests," the Court : "However reprehensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry." (Emphasis supplied.) *539 Again, the Court at 182-183: "The Government argues that the clause was meant to prevent only prosecutions based upon the `content' of speech, such as libel actions, but not those founded on `the antecedent unlawful conduct of accepting or agreeing to accept a bribe.' Brief of the United States, at 11. Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed, and the language of the Constitution is framed in the broadest terms." Finally, any doubt that the Court rejected the argument put forward by the Government was dispelled by its citation of Ex parte Wason, L. R. 4 Q. B. 573 (1869). In that case a private citizen moved to require a magistrate to prosecute several members of the House of Lords for conspiring to prevent his petition from being heard on the floor. The court denied the motion, holding that "statements made by members of either House of Parliament in their places in the House could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law." Mr. Justice Blackburn added, "I |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | amenable to the criminal law." Mr. Justice Blackburn added, "I entirely concur in thinking that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence." then, can only be read as holding that a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution. *540 In the face of that holding and 's rejection of reasoning identical to its own, the Court finds support in the fact that "authorized a new trial on the conspiracy count, provided that all references to the making of the speech were eliminated." Ante, at 511. But the Court ignores the fact that, with the speech and its motives excluded from consideration, this new trial was for nothing more than a conspiracy to intervene before an Executive Department, i. e., the Justice Department. And such executive intervention has never been considered legislative conduct entitled to the protection of the Speech or Debate Clause. See infra, at 542. The Court cannot camouflage its departure from the holding of by referring to a collateral ruling having little relevance to the fundamental issues of legislative privilege involved in that case. I would follow and hold that Senator Brewster's alleged promise, like the Congressman's there, is immune from executive or judicial inquiry. II The only issue for me, then, is the one left open in that is, the validity of a "prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded [not upon a general conspiracy statute but] upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." Assuming that 18 U.S. C. 201 is such a "narrowly drawn statute," I do not believe that it, any more than a general enactment, can serve as the instrument for holding a Congressman accountable for his legislative acts outside the confines of his own chamber. The Government offers several reasons why such a "waiver" of legislative immunity should be allowed. None of these, it seems to me, is sufficient to override *541 the public's interest in legislative independence, secured to it by the principles of the Speech or Debate Clause.[1] As a preliminary matter, the Government does not contend, nor can it, that no forum was provided in which Senator Brewster might have been punished if guilty. Article I, 5, of the Constitution provides that "[e]ach House may determine the Rules of its Proceedings, punish its Members for |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member." This power has a broad reach, extending "to all cases where the offence is such as in the judgment of the [House or] Senate is inconsistent with the trust and duty of a member." In re Chapman, Chapman, for example, concerned a Senate investigation of charges that Senate members had speculated in stocks of companies interested in a pending tariff bill. Similarly, the House of Representatives in 1873 censured two members for accepting stock to forestall a congressional inquiry into the Credit Mobilier. There are also many instances of imprisonment or expulsion by Parliament of members who accepted bribes.[2] Though conceding that the Houses of Congress are empowered to punish their members under Art. I, 5, the Government urges that Congress may also enact a statute, such as 18 U.S. C. 201, providing for judicial enforcement of that power. In support of this position, the Government relies primarily on the following language from the in : "While the framers of the Constitution intended *542 that each Department should keep within its appointed sphere of public action, it was never contemplated that the authority of the Senate to admit to a seat in its body one who had been duly elected as a Senator, or its power to expel him after being admitted, should, in any degree, limit or restrict the authority of Congress to enact such statutes, not forbidden by the Constitution, as the public interests required for carrying into effect the powers granted to it." However, Burton was not a case that involved conduct protected by the Speech or Debate Clause. Senator Burton was prosecuted for accepting money to influence the Post Office Department in a mail fraud case in violation of Rev. Stat. 1782, That was nonlegislative conduct, and as we said in at 172 "[n]o argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process." Such a prosecution, as the quoted excerpt from Burton specifically said, is "not forbidden by the Constitution," but that holding has little relevance to a case, such as this one, involving legislative acts and motives. The Government, however, cites additional considerations to support the authority of Congress to provide for judicial trials of corrupt Members; the press of congressional business, the possibility |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | of corrupt Members; the press of congressional business, the possibility of politically motivated judgments by fellow Members, and the procedural safeguards of a judicial trial are all cited as reasons why Congress should be allowed to transfer the trial of a corrupt Member from the Houses of Congress to the courts. Once again, these are arguments urged and found unpersuasive in I find them no more *543 persuasive now. I may assume as a general matter that the "Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons." United Yet it does not necessarily follow that prosecutors, judges, and juries are better equipped than legislators to make the kinds of political judgments required here. Senators and Congressmen are never entirely free of political pressures, whether from their own constituents or from special-interest lobbies. Submission to these pressures, in the hope of political and financial support, or the fear of its withdrawal, is not uncommon, nor is it necessarily unethical.[3] The line between legitimate influence and outright bribe may be more a matter of emphasis than objective fact, and in the end may turn on the trier's view of what was proper in the context of the everyday realities and necessities of political office. Whatever the special competence of the judicial process *544 in other areas, members of Congress themselves are likely to be in the better position to judge the issue of bribery relating to legislative acts. The observation of Mr. Justice Frankfurter bears repeating here: "Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses." 341 U. S., at Nor is the Member at the mercy of his colleagues, free to adjust as they wish his rights to due process and free expression. It is doubtful, for example, that the Congress could punish a Member for the mere expression of unpopular views otherwise protected by the First Amendment. See And judicial review of the legislative inquiry is not completely foreclosed; the power of the House and Senate to discipline the conduct of Members is not exempt from the "restraints imposed by or found in the implications of the Constitution." quoted in Finally, the Government relies on the history of the Clause to support a congressional power of delegation. While agreeing that the Speech or Debate Clause was a "culmination of a long struggle for parliamentary supremacy" and a reaction against the Crown's use of "criminal and civil |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | a reaction against the Crown's use of "criminal and civil law to suppress and intimidate critical legislators," the Government urges that this is not the whole story. It points out that while a large part of British history was taken up with Parliament's struggles to free itself from royal domination, the balance of power was not always ranged against it. Once Parliament succeeded in asserting rightful dominion over its members and the conduct of its business, Parliament sought to extend its reach *545 into areas and for purposes that can only be labeled an abuse of legislative power. Aware of these abuses, the Framers, the Government submits, did not mean Congress to have exclusive power, but one which, by congressional delegation, might be shared with the Executive and Judicial Branches. That the Parliamentary privilege was indeed abused is historical fact. By the close of the 17th century, Parliament had succeeded in obtaining rights of free speech and debate as well as the power to punish offenses of its members contravening the good order and integrity of its processes. In 1694, five years after incorporation of the Speech or Debate Clause in the English Bill of Rights, Lord Falkland was found guilty in Commons of accepting a bribe of 2,000 pounds from the Crown, and was imprisoned during the pleasure of the House. The Speaker of the House of Commons, Sir John Trevor, was censured for bribery the following year.[4] But Parliament was not content with mere control over its members' conduct. Independence brought an assertion of absolute power over the definition and reach of institutional privileges. "[T]he House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege." Thus, having established the basic privilege of its members *546 to be free from civil arrest or punishment, the House extended the privilege to its members' servants, and punished trespass on the estates of its members, or theft of their or their servants' goods. The House went so far as to declare its members' servants to be outside the reach of the common-law courts during the time that Parliament was sitting. This led to the sale of "protections" providing that named persons were servants of a particular member and should be free from arrest, imprisonment, and molestation during the term of Parliament.[5] These abuses in turn were brought |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | the term of Parliament.[5] These abuses in turn were brought to America. By 1662, for example, the Virginia House of Burgesses had succeeded in exempting not only its members, but their servants as well, from arrest and molestation.[6] The Government is correct in pointing out that the Framers, aware of these abuses, were determined to guard against them. Madison that the "legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex."[7] And Jefferson looked on the "tyranny of the *547 legislatures" as "the most formidable dread at present, and will be for long years."[8] Therefore the Framers refused to adopt the lex parliamenti, which would have allowed Congressmen and their servants to enjoy numerous immunities from ordinary legal restraints. But it does not follow that the Framers went further and authorized Congress to transfer discipline of bribe takers to the Judicial Branch. The Government refers us to nothing in the Convention debates or in writings of the Framers that even remotely supports the argument. Indeed there is much in the history of the Clause to point the other way, toward a personalized legislative privilege not subject to defeasance even by a specific congressional delegation to the courts. The details the history. The Clause was formulated by the Convention's Committee on Style, which phrased it by revising Article V of the Articles of Confederation which had provided: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress." (Emphasis supplied.) This wording derived in turn from the provision of the English Bill of Rights of 1689 that "Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." (Emphasis supplied.) The same wording, or variations of it, appeared in state constitutions. Article VIII of the Maryland Declaration of Rights (1776) declared that legislative freedom "ought not to be impeached in any other court or judicature." The Massachusetts Bill of Rights (Art. XXI, 1780) provided that the "freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, *548 action or complaint, in any other court or place whatsoever." The New Hampshire Constitution (Art. XXX, 1784) contained a provision virtually identical to Massachusetts'. In short "[f]reedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | course by those who severed the Colonies from the Crown and founded our Nation." Despite his fear of "legislative excess," Jefferson, when confronted with criticism of certain Congressmen by the Richmond, Virginia, grand jury, said: "[T]hat in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive." 8 The Works of Thomas Jefferson 322 (Ford ed. 1904). Jefferson's point of view was shared by his contemporaries[9] and found judicial expression as early as in the Coffin It was there : "In considering this article, it appears to me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to *549 this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house; but derives it from the will of the people, expressed in the constitution, which is paramount to the will of either or both branches of the legislature. In this respect the privilege here secured resembles other privileges attached to each member by another part of the constitution, by which he is exempted from arrests on mesne (or original) process, during his going to, returning from, or attending the general court. Of these privileges, thus secured to each member, he cannot be deprived, by a resolve of the house, or by an act of the legislature." (Emphasis supplied.) In short, if the Framers contemplated judicial inquiry into legislative acts, even on the specific authorization of Congress, that intent is not reflected in the language of the Speech or Debate Clause or contemporary understanding of legislative privilege. History certainly shows that the Framers feared unbridled legislative power. That fact, however, yields no basis for an interpretation that in Art. I, 1 and 8, the Framers authorized Congress to ignore the prohibition against inquiry in "any other place" and enact a statute either of general application or specifically providing for a trial in the courts of a member who takes a bribe for conduct related to legislative acts.[10] *550 III I yield nothing to the Court in conviction that this reprehensible and outrageous conduct, if committed by the Senator, should not have gone unpunished. But whether |
Justice Brennan | 1,972 | 13 | dissenting | United States v. Brewster | https://www.courtlistener.com/opinion/108607/united-states-v-brewster/ | by the Senator, should not have gone unpunished. But whether a court or only the Senate might undertake the task is a constitutional issue of portentous significance, which must of course be resolved uninfluenced by the magnitude of the perfidy alleged. It is no answer that Congress assigned the task to the judiciary in enacting 18 U.S. C. 201. Our duty is to Nation and Constitution, not Congress. We are guilty of a grave disservice to both Nation and Constitution when we permit Congress to shirk its responsibility in favor of the courts. The Framers' judgment was that the American people could have a Congress of independence and integrity only if alleged misbehavior in the performance of legislative functions was accountable solely to a Member's own House and never to the executive or judiciary. The passing years have amply justified the wisdom of that judgment. It is the Court's duty to enforce the letter of the Speech or Debate Clause in that spirit. We did so in deciding In turning its back on that decision today, the Court arrogates to the judiciary an authority committed by the Constitution, in Senator Brewster's case, exclusively to the Senate of the United States. Yet the Court provides no principled justification, and I can think of none, for its denial that United compels affirmance of the District Court. That decision is only six years old and bears the indelible imprint of the distinguished constitutional scholar who wrote the for the Court. surely merited a longer life. *551 MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR. |
Justice Douglas | 1,973 | 10 | dissenting | Moor v. County of Alameda | https://www.courtlistener.com/opinion/108782/moor-v-county-of-alameda/ | The claims in the instant actions arose out of the May 1969 People's Park disturbance, in which petitioners were allegedly injured by an Alameda County deputy sheriff who was performing duties at that time on behalf of the County. Petitioners brought actions against several deputies, the sheriff, and the County. The complaints against the County alleged federal causes of action under the Civil Rights Acts, 42 U.S. C. 1981, 1983, 1985, 1986, 1988, and pendent state claims under 810 et seq. of the California Government Code. Both federal and state causes of action were premised on the theory that the County could be held vicariously liable for the acts of the deputies. The County subsequently filed motions to dismiss the claims against it in each case, contending that, as to the Civil Rights Act claims, the County was not a "person" who could be sued under the Act. The trial court ultimately granted these motions and ordered that all claims against the County be dismissed. The Court of Appeals affirmed these orders of the District Court, (CA9). Title 42 U.S. C. 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured *723 in an action at law, suit in equity, or other proper proceeding for redress." In we held that a municipality was not a "person" within the meaning of that Act. The issue was whether or not the Act made municipalities liable in damages, that claim being strongly pressed because "private remedies against officers for illegal searches and seizures are conspicuously ineffective and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level." We certainly said, as the Court holds, that a municipality was not a "person" within the meaning of 1983. But 1983 permits equitable relief, as well as damages, not directly involved in but a matter we explored at some length last Term in There may be overtones in that even suits in equity are barred. Yet we never have so held. Certainly a residuum of power seems available in 1983 to enjoin such bizarre conduct as the offering to the police of classes in torture. More realistically, 1983 as construed in might under some circumstances authorize a federal injunction against a municipal |
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