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Friday, August 15, 2008

Is retroactive telecom immunity unconstitutional? No

Frank Pasquale at CoOp quotes Gleen Greenwald at ACLU Blog asking that question. In short, I believe pretty clearly the answer is no--an unfortunate no, but no nevertheless. But it is worth considering Glenn's arguments.

The first is that, by creating a rule that requires dismissal of all these lawsuits, Congress is usurping the judicial power to adjudicate and resolve lawsuits. This is a version of the argument from United States v. Klein, which I previously wrote about and rejected. What Congress did here was to create a general rule of federal law, granting to a class of defendants a defense against liability for certain conduct--which Congress clearly can do through its power to create federal statutory law. Congress made that defense retroactive, which it can do so long as it makes clear its intent, which it did. But the law does not reopen cases that have become final, does not tell the courts how to decide a particular case, does not tell the courts how to understand the Constitution, and does not "review" and change the result in a given case. Congress created a new substantive rule of decision under federal law to be applied in federal court--that is the essence of the federal legislative power.

Second, and related, Glenn argues that many of the claims against the telecoms are constitutional in nature and Congress cannot statutorily authorize constitutional violations. True, but Congress can create statutory defenses or immunities against legal damages liability for those constitutional violations. This is identical to the various immunities--qualified immunity, absolute prosecutorial, judicial, and legislative immunity--that apply in constitutional claims under § 1983 and Bivens (those immunities formally are considered common law immunities that survived passage of § 1983--but the point is they are subconstitutional limits on constitutional liability).

Third, Congress actually has toyed with legislation having a similar effect. I wrote about one example, the so-called Cheeseburger Bill, in my article on non-existent. The bill would have retroactively eliminated liability for the fast-food industry for claims "arising out of, or related to a person's accumulated acts of consumption of a [defined fast food] product and weight gain, obesity, or a health condition," explicitly in response to pending tort claims against McDonald's and other restaurants. The effect of such bills is to create a new defense against liability for some conduct--in Hohfeldian terms, eliminating a right in the plaintiffs and a duty in the defendants and expanding the defendant's liberty (or privilege) to act without legal constraint in some respects. Similar bills were proposed to stop the municipal handgun lawsuits. But, except in a few quarters (relying on Klein-type arguments that I believe are mistaken for the reasons above), no one seriously questioned the constitutionality of, essentially, creating a new defense against liability.

Fourth, and the one argument that seems kind of interesting, is that the immunity works a Fifth Amendment taking of a property interest (a legal claim) without just compensation; this argument comes from a January FindLaw column by Anthony Sebok. The argument is that, once a claim has accrued, Congress takes that property by retroactively eliminating the claim (or here, creating a new defense to that liability). The argument never has been accepted by a court, but Sebok ties it to general principles. Sebok also points out that in prior situations in which Congress was concerned about a judicial liabilty, it has created an alternative forum and remedial scheme, so claimants are not left without a remedy.

The problem with this argument is it locks in the present state of the law--everyone with a legal claim under present law has suffered a taking if Congress retroactively changes that law to eliminate rights or create new defense. But retroactivity has not been called into question in this way. And recognizing this as a taking would create an odd one-way ratchet. No one doubts that Congress can pass a law retroactively creating a new cause of action--that is, subjecting to civil legal liability conduct that was not unlawful at the time it was committed. But in some sense, we could see this as a taking--the defendant will lose property when it gets sued for conduct that would not have caused him to lose property at the time it was committed. In other words, the argument would mean Congress can create a new claim retroactively, but not a new defense.

As I wrote before, I think this immunity is a terrible idea, incredibly unfair, and incredibly unwise police. But bad policy is not necessarily unconstitutional policy.

Posted by Howard Wasserman on August 15, 2008 at 08:47 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink


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Tracked on Aug 21, 2008 4:00:57 PM


I'm interested in this claim that the telecom companies (since when are they called "telecoms," by the way?) themselves violated the Constitution. I grasp the notion that they may have enabled or participated in the government's violation of Due Process or the 4th. But the companies are private parties. What about the state action doctrine? I'm certainly not a criminal law guy, but shouldn't we be seeing claims like this all the time if it were really possible for a private party to violate the Constitution like this? E.g., police subpoena bank records in tracing a drug transaction; judge rules that the subpoena wasn't justified by probable cause; suspect then sues . . . the bank because it should have known the subpoena wasn't justified and it therefore violated the 4th Amendment? Does that really happen?

Posted by: Stuart Buck | Aug 16, 2008 10:42:42 AM

Fair point and a significant hurdle that any constitutional claim would have to overcome, apart from the immunity Congress granted. The argument would be that the request from the executive either clearly violated the law or was based on nothing more than the naked assertion that "the President says its OK," which (unlike a signed search warrant) should not have been enough. The comparison that has been made (I think by Michael Dorf, among others) is of the government approaching a citizen and telling him that the President needs him to kill someone and that it is OK to do so, in the name of national security. Anyway, the argument then becomes that working with the government is such patently and obviously unlawful conduct constitutes joint action under the "conspiracy test" (see, e.g., Adickes and United States v. Price) and makes the private individual/entity a public actor.

Not saying it is a strong argument (the conspiracy test is notoriously difficult); but that is where they must be trying to go.

Posted by: Howard Wasserman | Aug 16, 2008 2:06:41 PM

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