Another Dreary 5-4

A snappy little per curiam from the Supreme Court this week on the question of whether to stay the decision of a district court in California to broadcast the current trial on the question of whether the state's ban on same-sex marriage is unconstitutional.

Now, look. You may or may not like same-sex marriage. You may or may not like broadcasting trials. But that isn't even what the Court's decision is about. The question was whether the district court followed proper procedures in amending its rules, which previously prohibited broadcast of trials, to allow the broadcast of this trial as part of a "pilot program."

But before reading further, see if you can guess which five Justices thought it hadn't and which four thought the change was OK?

The question of whether federal trials and other federal judicial proceedings should be broadcast has gotten a fair bit of attention over the last few years. The national Judicial Conference (a body that represents the whole federal judiciary) has been steadfastly against it. Congress has been considering some bills to permit it, but they haven't gotten very far yet. At the moment, broadcast is generally banned but it's open to federal courts to change that by rule.

But there are procedures that have to be followed to change federal court rules. In particular, the Rules Enabling Act requires a court that wants to make or change a rule to give "appropriate public notice and an opportunity for comment," unless there is an "immediate need" to make the rule change without such notice and opportunity.

Did the district court in this case do that? You decide. As early as September 25 of last year, the district court informed the parties that there was interest in having the trial broadcast. One month later, the court of appeals's chief judge appointed a committee to consider changing court rules to permit such broadcast. On December 17, the Ninth Circuit's Judicial Council announced that it had approved a limited pilot program to test broadcasting of judicial proceedings.

On December 23, the district court announced that it had changed its local rule, which had prohibited broadcasts, to permit broadcasts in connection with the pilot program. But then on December 31, the district court withdrew that announcement and instead announced that it was proposing a revision of its local rule, and that public comment was solicited, with a deadline of January 8. Then on January 4, 2010, the district court again changed the announcement, to state that it had changed its local rule, effective December 22, based on the "immediate need" to make the rule change.

Well. As the Supreme Court ruled this week, it sure seems like the district court didn't know what it was doing. Speaking as an administrative law professor, I would say that this sounds rather like an agency that discovered only at the last minute that it was subject to procedural requirements and that scrambled around to try to justify procedurally what it had already decided to do. The Supreme Court suggested -- rightly, in my opinion -- that an agency that tried to pull this kind of stuff would get slammed by a reviewing court.

The district court proposed a public comment period that lasted a whopping five business days -- and it didn't even hold the comment period open for that long before acting. Most agency public comment periods last at least 30 days. Also, when agencies claim an emergency need to avoid a public comment requirement, it's usually for something really important, not something like, "we have a particular case that we'd like to get into the new program." I mean, let's face it, federal trials have been not broadcast for hundreds of years; it won't kill anyone it this particular trial isn't broadcast and the new pilot program only takes effect after it's over.

So it seems to me that the district court was engaged in absurd procedural shenanigans and it rightly deserved to get smacked.

Now, I recognize that there are arguments the other way. As the dissenting opinion in the Supreme Court pointed out, the parties to the particular trial involved had sufficient notice (3 months or so) of the possibility of broadcast. There was some period of public comment -- and apparently there was a huge response; over 130,000 comments were received, almost all favorable. In addition, the Supreme Court isn't supposed to act on just anything that gets filed with it; its jurisdiction is discretionary and it's supposed to reserve its time for really important matters, which this isn't. So there's a good argument that the Court should have declined to act.

So I think I agree with the Court's action, but it's not entirely one-sided.

But here's the thing: the vote was 5-4, and it was the five conservatives against the four liberals, as usual.

Sheesh! Does everything have to be politicized and ideologized? Just because the hot-button issue of same-sex marriage is involved, does every small procedural detail of the trial have to be split along liberal/conservative lines? Couldn't just one of the liberals have decided that, as an administrative law matter, it's wrong for government bodies to ignore procedural constraints because they're in a hurry on a particular case? Couldn't just one of the conservatives have decided to follow the Supreme Court's usual practice of not bothering with piddling matters?

Sigh. I find it increasingly depressing that no one seems to be able to break out of their ideological cocoons. This case was primarily a procedural issue. But everyone's so focused on the hot-button background that no one can (one might say) think straight.

Czar Wars

Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House. These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation. Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers. Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.

Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong. As Rivkin and Casey point out, the President can get advice from whomever he wants. He could get all his advice from me if that’s what he wanted to do. He doesn’t need Congress’s permission to seek anyone’s advice.

Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.” But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that? The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example). But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what?

Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so. Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me. Everyone else who serves at my pleasure, do what Joe Biden tells you to do.” Could there be anything wrong with that? I think not.

And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs. So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”

So I think Hutchison is wrong to suggest that there’s a constitutional problem. Of course, whether having so many czars makes sense as a public policy matter is a different question.

And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars. I’m not so sure about that. If the President wants to seek my advice, Congress can’t stop him. But if someone wants to be on the federal payroll, then Congress is footing the bill. If Congress wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so. The President has a lot of power, but the power of the purse is pretty potent, too.

Here Comes RoboCop

The Federal Trade Commission has instituted a ban on robocalls that takes effect on Tuesday.

I guess this is a good idea, but really, what's the big deal? Just put yourself on the Do Not Call list -- the greatest government program ever -- and you'll be free from all telemarketing calls, not just robocalls.

I suppose there might be people who don't mind telemarketing calls generally, but who hate robocalls. Maybe what we really need is a more flexible Do Not Call list, where users can choose more particularly what kind of calls they don't want to receive.

But boy, when it comes to telemarketing calls, I'm checking "all."

Fox Makes Law

Yesterday, the Supreme Court decided FCC v. Fox Television Stations. The case made big news because of its titillating facts: the FCC determined that Fox violated the statutory prohibition against broadcasting "any . . . indecent . . . language," 18 U.S.C. § 1464, by broadcasting the 2002 and 2003 Billboard Music Awards, during each of which celebrities (Cher and Nicole Richie) used expletives that made it onto the air unbleeped. The Commission rejected its prior view that the "fleeting," nonliteral use of individual expletives is not actionable and determined that the broadcasts, taken in full context, violated the indecency prohibition.

The context ensures that the case captures public attention, but for us administrative law professors the interesting thing is that the case is just bristling with ad law principles. The Court declined to consider any First Amendment issues in the case (those remain open for further consideration), but ad law issues were definitely on the menu. The case positively chock full of them.

Here's a quick rundown of ad law points that the Court decided:

* The Court reminded us that the Administrative Procedure Act "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." Courts always have a tendency to make up procedural rules and impose them on agencies, so the Court's reminder that courts can only enforce the APA is important.

* The Court also reminded us that the standard of review under the APA "arbitrary" or "capricious" test is "narrow."

* Probably most important, the Court decided that judicial review is not heightened or more searching when an agency changes its past practice. The Court agreed that the agency must provide an explanation that shows that it is aware that it is changing its practice (the agency cannot simpy ignore what it has done in the past), but it has no duty to prove to a court's satisfaction that its new policy is better than the old.

This is a useful clarification. I had always understood this to be the rule -- the principle that an agency must explain its changes of course traces back to a D.C. Circuit opinion in which Judge Leventhal wrote that "an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored." That seems pretty clearly to say what the Supreme Court said yesterday, but somehow, it gradually got transmuted, in the minds of some courts, into the principle that an agency is subject to some kind of heightened or more stringent review when it changes its mind. As far as I can see, Judge Leventhal never meant anything more than that agencies should not change course out of ignorance. They must say "we know what we used to do, but we don't like it anymore." But so long as the new policy would have been permissible as an original matter, the agency should remain free to switch to it.

In part, this reflects the fact that some agency policies can and should be expected to flip with changes in political control of the executive branch. If Democrats like some policies and Republicans prefer others, and either policy would be permissible for an agency to adopt under its organic statute (i.e., the statute vests the agency with discretion to make the choice), neither party should be able to entrench its view past its time in office. When an election changes the President and, therefore, the agency heads, the agency should be free to take that into account. If party control shifts from Democratic to Republican and back again, we obviously can't require the agency to show that each new policy is better than old -- A can't be greater than B and B greater than A.

* The Supreme Court held that arbitrary and capricious review is no more stringent than usual when constitutional liberties are involved. The "avoidance" canon, which counsels courts to interpret statutes so as to avoid constitutional difficulties, is a principle of statutory construction, not a principle of arbitrary and capricious review.

* The Court held that, although agencies are required to provide factual support for their decisions, this requirement does not mean that they always have to gather empirical evidence. In the Fox case, the Court determined that an agency would have no practical way to gather empirical evidence to prove that broadcast profanity could harm children. Therefore, the Court held, the agency was free to act on the plausible intuitions that children mimic the behavior they observe, and that a per se exemption for fleeting expletives would lead to increased use of such expletives on television.

* The Court held that judicial review of "independent" regulatory agencies (those where the agency heads do not serve at the pleasure of the President but have some tenure protection) is no different than review of agencies fully controllable by the President.

Whew! It's not often that a single case makes so many administrative law points, one after another. Look out for this case in a casebook near you soon.

More Chevron Portents

One of the interesting things about the Entergy decision that I blogged the other day is that it just straightforwardly expressed the rule of Chevron deference: where a statute is entrusted to an administrative agency like EPA for enforcement, it's up to the agency to resolve ambiguities in the statute. The agency doesn't has to come up with what a court thinks is the best interpretation of its governing statute; only a reasonable interpretation. If ther interpretation is reasonable, a court must uphold it, even if the court thinks a different interpretation is better.

Chevron is just about the most important case in administrative law -- it effected a big transfer of power to the Executive branch at the expense of Congress and the courts. Basically, under Chevron, whenever agency statutes are ambiguous, which happens all the time, the agency gets to decide what they mean.

Chevron's been around since the 1980s, but recently there's been increasing doubt about when the rule applies. It used to apply routinely in administrative cases, but lately the Court keeps creating exceptions to the Chevron rule. In fact, the Court's been chipping away at it in case after case to the point where some serious thought is needed in each case to decide whether Chevron applies. So it was interesting to see the rule just stated without equivocation in Entergy.

Working back to a case from last month, it is equally interesting to see a concurring opinion by Justice Stevens arguing for a pretty major limitation on Chevron deference. He thinks that courts should resolve statutory ambiguities when they involve "pure questions of statutory interpretation" and agencies should get deference only when the matter involves "policymaking" or "interstitial questions." And the funny thing is, Justice Stevens wrote Chevron!

It's curious that the Court can't tell us the rule about when the most important administrative law rule applies.

Entergy

I'm a little slow getting to it, but I just read the Supreme Court's very interesting opinion in Entergy Corp. v. Riverkeeper, Inc. The case concerned the requirements imposed by EPA regarding power plants that have water intake systems. These systems, which may use millions of gallons of water per day for cooling purposes, have adverse environmental impact on fish and other acquatic life that get crushed up against intake screens or sucked into the intake system. The EPA's regulations require measures to mitigate this adverse impact.

And here's the key: by statute, the regulations must require power plants to use "the best available technology for minimizing adverse environmental impact." Now, what does that mean? Does it mean that the EPA must require plants to use the available technology that most reduces adverse environmental impact -- regardless of how much it costs? Does the EPA have discretion not to require the use of technology that would bankrupt the power industry? Does the EPA have even more discretion to balance costs against benefits generally and make what it regards as a reasonable decision?

The Court held that Congress's use of the term "best" is ambiguous, and so, under the principle of Chevron deference, it's up to the agency to resolve the ambiguity in any reasonable way.

I guess this is a possible reading of the term "best." I'm inclined to think the term is more naturally read to mean the technology that best serves the purpose in question, without regard to cost. Still, when a magazine recommends the "best" stereo for you to buy, it could mean the very best stereo on the market, without regard to cost, but it might also mean the best one for actual people to buy, which would include some consideration of cost.

The interesting thing is that I had always understood the cases to suggest that cost is a virtually ubiquitous consideration in administrative decisionmaking and that, unless it's pretty clearly forbidden, agencies are permitted to consider it, even when it's not expressly mentioned in a statute. Then in 2001 the Supreme Court, in an opinion by Justice Scalia, said that where Congress requires the EPA to set a certain pollution limit at the level that is "requisite to protect the public health," that language clearly forbids any consideration of cost (Whitman v. American Trucking). Now, the Court, in another opinion by Justice Scalia, has said that the language "best available technology for minimizing adverse environmental impact" permits consideration of cost. I guess I'm missing the subtle distinction in the language involved.

. . . And Counting

Are you wondering what's happened to that Minnesota Senate recount? The answer is that it's dragging on. The three-judge court hearing the case is receiving hundreds of pieces of evidence and the two sides want to call lots of witnesses -- perhaps even officials from all of Minnesota's 87 counties. One of the judges has said that the court will "make sure that every legally cast and wrongfully rejected ballot is opened and counted," but when and how that will happen is unclear.

The trial illustrates some of the difficulties of judicial review of administrative action. Judicial review is an important, indeed essential, step in the process. Without it, administrative agencies can and may do anything they want, without regard to legality. But judicial review can be a mess. Hundreds of officials were involved in the initial recount, which took weeks. Chaotic as it was, it at least had some semblance of a standardized process -- because it was conducted by the agency charged with doing it. Everyone worked hard, ballots were painstakingly considered, and a result achieved.

Now the whole thing is in the hands of three judges who, as far as I can tell, have no particular expertise in election matters. There's no standardized process for their reconsideration of the election. These three judges get to reconsider the efforts of hundreds of election officials. One can see why some scholars suggest judicial review causes more trouble than it's worth.

Well, the above picture is somewhat idealized. In fact, the agency consideration wasn't so pristine in this case. The "standardized" process involved things like sometimes accepting the election day count (when an envelope full of ballots was lost), and sometime not. Inexpert judges sat on the state canvassing board. So perhaps the agency process was not so different from the judicial review process.

But at least there was something like a dedicated agency process. The state elections expert -- the Secretary of State -- headed up the board.

I've previously stated my view that there's probably no way to really know who won this election. Every new level of tinkering with it decreases my confidence in the result. I adhere to my basic belief in the value of judicial review, but it's hard to see how much it can help here.

On Their Way Out the Door

While everyone is, shall we say, a little distracted, the Bush administration (yes, Bush is still President) is busy ramming through one last round of deregulatory rules. The proposed new rules would weaken regulation on consumer protection, the environment, and other issues.

Sheesh. It's not as though the Democrats were any better on this -- the Clinton administration tried to ram through a whole bunch of rules right at the end too -- but it's more than a little shady. Of course the next administration can undo rules, but it's cumbersome. Once an administrative agency adopts rules through a rulemaking process, it usually takes the same process to undo those rules. And while the rulemaking process is supposed to be fairly straightforward -- just propose the rules, receive public comment, and then announce your final decision -- in practice so many requirements have accreted onto the rulemaking process that it has become rather ossified. It's a big, complicated deal to do any rulemaking, even one that just undoes a previous rulemaking.

From the beginning, Bush has never cared much about public opinion. He's gone after divisive measures in a way that seems almost deliberate. One would hardly expect anything different now that he's immune to political reprisal. But it leaves a sour taste in one's mouth. This election can't happen fast enough.