Drawing Murky Lines In Shifting Sand

My head hurts.

Actually, my brain hurts.

It hurts because I've been spending more time than a Texan should watching the opinions come out of the Supreme Court of the United States. The reason for this cranial exertion is the upcoming Supreme Court update at the UT Seminar on State and Federal Appeals in June.

The cases are starting to establish a theme. The high court spends a good deal of its time drawing boundaries. For example there are boundaries:

  • Between state and federal power
  • Between legislative and executive and judicial branches
  • Between individual and state

At best, though, the court is drawing indistinct lines in shifting sand.

After the jump, three variations on that theme, newly released from the Supreme Court:

If you like Kafka-esque regulatory power, legislative history, balancing tests or the word "congruence," you'll love this stuff.

Sackett v. EPA

In Sackett, the EPA claimed the right to regulate under the Clean Water Act because the land on which they wanted to build a house was sufficiently damp  for sufficiently long and sufficiently close a navigable water to be considered a "wetland." The agency also claimed that it's jurisdiction to regulate (i.e., threaten) the homeowners was not subject to judicial review unless and until the homeowners were fined draconian sums of money for failing to implement the EPA's wetlands remediation plan.

Not a shock that the Supreme Court rejected this position and held that the Agency was subject to judicial review. But the test for whether review was available under the APA was suprisingly murky. Not only did agency action have to be "final" (or final enough), there had to be no "adequate" judicial remedy, and the statute could not preclude judicial review.

This last element required the court to read congressional tea leaves. One could not just rely upon the language of the statute. Justice Scalia set out the test:

Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in determining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to]its express language.” . . .  The APA, we have said, creates a “presumption favoring judicial review of administrative action,” but as with most presumptions, this one “may be overcome by inferences of intent drawn from the statutory scheme as a whole.”

That kind of murk ought to be unsatisfying given the property interests at issue. Justice Alito certainly thought as much and he said it in his concurrence:

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. Bythat time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

Unthinkable, that is, to all but the EPA, the United States District Court for the District of Idaho, and the Ninth Circuit Court of Appeals. One may now need a Supreme Court specialist in addition to a general contractor when building a house.

Mayo v. Prometheus Labs

Mayo dealt with murk of a different kind--that left over in the wake of Bilski from last term. The court had GVR'd Mayo in light of Bilski, and the Federal Circuit did not get the hint. It came to the same result. To be fair, I did not find Bilski all that clear either.

The precise question in Mayo was whether Prometheus labs could patent its discovery that levels of measurable metabolites indicated whether a patient was being correctly dosed with medication for autoimmune diseases. Prometheus claimed a patent on the process of measuring the metabolites and determining the proper dose. The Mayo Clinic countered that Prometheus was just trying to patent observable, natural laws.

Under the Mayo Clinic's argument, that is a bit like trying to patent how to apply the Pathagorean Theorem.  The rule is

“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” . . . . And monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it. 

In order to be patentable, you need something more.

“‘While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.’”

Maybe it's just because I am an arts and crafts major, but I confess that, when an issue is close to the line, I can't tell what that "something" might be. In fact, the Court recited two cases, one having that certain je ne sais quoi and one lacking it. I did not see much difference in the "quoi" between the two and still don't. 

A little help?

Coleman v. Court of Appeals of Maryland

Coleman asks whether Congress had the power under the 14th Amendment to abrogate state sovereign immunity and require states to give employees time off for "self care" under the Family Medical and Leave Act. If the legislation has a sufficient nexus to conduct transgressing the Fourteenth Amendment Congress has that power. If not, it doesn't.

So how do you measure the nexus? Piece of cake. A balancing test with words like "tailor" and "proportionality" and "congruence."

To ensure Congress’ enforcement powers under §5 remain enforcement powers, as envisioned by the ratifiers of the Amendment, rather than powers to redefine the substantive scope of §1, Congress “must tailor” legislation enacted under §5 “‘to remedy or prevent’” “conduct transgressing the Fourteenth Amendment’s substantive provisions.” . . . .

Whether a congressional Act passed under §5 can impose monetary liability upon States requires an assessment of both the “‘evil’ or ‘wrong’ that Congress intended to remedy,”. . .  and the means Congress adopted to address that evil . . . . Legislation enacted under §5 must be targeted at “conduct transgressing the Fourteenth Amendment’s substantive provisions.” . . .  And “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”

So just dig into the legislative history and the lack of congruence is clear, right? Self-care has nothing to do with gender discrimination like time off to have a baby or to care for a sick child. At least Justice Kennedy and the majority thought not. 

Except using the exact same test, all the members of the Court who might actually have experienced gender discrimination (all the female justices) thought that it passed with flying colors. They (along with Justice Breyer) marshaled the legislative history and made a convincing case.

And to Justice Scalia, that was exactly the problem. The test was unworkable and the outcome depended entirely upon one's own point of view:

The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in turn is because that flabby test is “a standing invitation to judicial arbitrariness and policy-driven decision making,” . . . Moreover, in the process of applying (or seeming to apply) the test, we must scour the legislative record in search of evidence that supports the congressional action. . . . This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.


So three cases in need of clarity. Three cases in need of a line. Lines we have, or marks at least. Clarity? Not so much.

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Comments (3) Read through and enter the discussion with the form at the end
Minnie Blokwotes - March 28, 2012 7:23 AM

It was hard to find your sentences sandwiched between all the block quotes. Or are those the more permissible blawg quotes?

Nicholas Wagoner - March 28, 2012 7:52 AM

Thanks for the interesting post. One of the highlights from yesterday's oral arguments before the Supreme Court over the Affordable Care Act was Justice Kennedy's questioning of the Solicitor General. Specifically, Justice Kennedy remarked that the government faced a "heavy burden of justification" and pressured the Solicitor General to concede the existence of "some limits on the Commerce Clause." Justice Kennedy then added, "You are changing the relationship of the individual to the government." It sounds like Justice Kennedy is ready to draw yet another line in the sand.

Kendall - March 28, 2012 8:46 AM

Thanks for the comments, Minnie and Nicholas. I'm glad you enjoy the blog.

I've been following the arguments from afar, Nicholas. It sounds like the SG still did not have a short answer for the big and obvious question in the case: if the mandate is inside the line, where is the line?

And Minnie, hopefully the difficulty was not with computer screen formatting, but I have two rationalizations (or escuses) for using block quotes in new opinion posts:

(1) Unlike a brief, a post is more about what the cases say as opposed to what the cases mean. So quoting is a bit more appropriate.

(2) Cutting and pasting language into a block quote is a lazy short cut--inappropriate for a brief where someone is paying for a good product, but maybe excuseable on a blog for which no one pays.

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