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Tuesday, October 20, 2015

Is It Unconstitutional to Apply Erie to D.C. Law?

Last December, I wrote a post about the strangeness that arises from the applicability of Erie (pursuant to which federal courts in diversity cases apply the state substantive law dictated by the choice-of-law rules in the state in which they sit) to the District of Columbia. Although it's strange to apply Erie in the federal territories at all, it's especially strange in D.C., which is the only one of the six federal territories in which the court receiving deference under Erie was created (and is controlled) by Congress, as opposed to the territorial legislature. Thus, as my post last December noted, when they follow Erie, the Article III D.C. district court and D.C. Circuit are necessarily deferring to an Article I court's interpretation of federal law (to wit, the D.C. Code). And although this result is not remotely compelled by the Rules of Decision Act, the (Article III) D.C. courts have nevertheless chosen to adopt it for purposes of convenience and litigation efficiency, if nothing else. 

The more I think about this issue, the more I wonder if this approach isn't just "strange," but also one that raises constitutional concerns. After all, it's well settled that Congress may not give non-Article III actors (whether non-Article III judges or Article I or Article II entities) supervisory authority over Article III courts, but the application of Erie to D.C. at least theoretically gives the D.C. Court of Appeals a supervisory power over some federal law within the District vis-a-vis their Article III brethren, even if it lacks authority over the latter's decisions. Thus, could Congress really compel a lower Article III court to follow an Article I court's interpretation of federal law (whether in general or as limited to the "local" federal law of D.C.)? This surely goes much further than Chevron, since, among other things, there's no room under Erie to set aside the Article I court's unreasonable interpretations of ambiguous "local" law...

But even if you don't find that argument compelling, what if the Supreme Court were ever presented with a question of D.C. local law? Wouldn't there be a serious problem under Article III with following Erie in such a case, given that the Supreme Court would, insofar as it applied Erie to the District of Columbia, necessarily be deferring to an inferior Article I federal court on a question of federal law (as compared to deferring to an independent state supreme court on a question of state law)? Although I'm somewhat ambivalent about the constitutional problem with applying Erie in the Article III D.C. lower courts, the constitutional problem with applying it in the Supreme Court seems manifest.

To be sure, an obvious rejoinder is that, unlike the D.C. district court and D.C. Circuit, the Supreme Court has never chosen to follow Erie in such a case, and so the constitutional question hasn't arisen. And in an appropriate future case, the Supreme Court could certainly choose not to follow Erie then, too. So if the constitutional problem only arises at the Supreme Court level (and again, I'm still not sure it's that limited), it can easily be avoided by the Justices if and when it presents itself.

But insofar as a refusal on the part of the Supreme Court to be bound by D.C. law as interpreted by the D.C. Court of Appeals would solve the constitutional problem, it seems to me that it also undermines the pragmatic justification the Article III D.C. lower courts have advanced for adopting Erie, since it suggests that, in fact, there will be cases in which the Article III courts will be constitutionally bound to reach an independent interpretation as to the meaning of D.C. law--and that those cases will come through the very courts voluntarily choosing to defer.

Posted by Steve Vladeck on October 20, 2015 at 03:53 PM in Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink


In Pernell v. Southall Realty, 416 U.S. 363 (1974), the Supreme Court asserted there was a congressional intent for Article III courts to defer to the D.C. Court of Appeals' interpretation of a federal law "of peculiarly local concern."

"This new structure [of the D.C. judicial system] plainly contemplates that the decisions of the District of Columbia Court of Appeals on matters of local law -- both common law and statutory law -- will be treated by this Court in a manner similar to the way in which we treat decisions of the highest court of a State on questions of state law. Congressional Acts directed toward the District, like other federal laws, admittedly come within this Court's Art. III jurisdiction, and we are therefore not barred from reviewing the interpretations of those Acts by the District of Columbia Court of Appeals in the same jurisdictional sense that we are barred from reconsidering a state court's interpretation of a state statute. But the new court structure certainly lends additional support to our longstanding practice of not overruling the courts of the District on local law matters 'save in exceptional situations where egregious error has been committed.'"

Posted by: SlipperySlope | Oct 20, 2015 5:10:15 PM

Steve -- why would it violate A3 for the SCt to *choose* to follow an A1 ct's interpretation of federal law? A3 doesn't purport to set forth a judicial rule of decision for how to resolve federal questions.

If SCt can voluntarily choose to adopt the Chevron rule and thereby ignore federal law when an agency's erroneous interpretation is merely reasonable--or, even worse, if Chevron is defended on a delegation theory pursuant to which Congress can *force* the SCt to defer to erroneous but reasonable interpretations of federal law--then why can't the SCt decide to follow even unreasonable interpretations of federal law (cf. stare decisis, pursuant to which the SCt routinely chooses to follow even demonstrably wrong interpretations of federal law).

And if SCt can voluntarily choose to adopt that rule of decision for itself, then can't it surely impose that rule on the lower federal courts too, so that it doesn't have to keep granting and reversing?

Posted by: Hash | Oct 21, 2015 3:46:45 PM

Hi Hash -- Perhaps I wasn't clear. Of course the Supreme Court can _choose_ to follow other authorities; I was positing a scenario wherein the Court somehow felt bound to follow the D.C. Court of Appeals' interpretation of D.C. law (e.g., if they thought Congress had so required in the Rules of Decision Act). It seems to me that, unlike Erie, that would raise serious Article III and separation of powers issues...

Posted by: Steve Vladeck | Oct 21, 2015 3:55:43 PM

Just to tangentially correct a common misunderstanding of Chevron here, the theory of Chevron isn't that ambiguities delegate to agencies the power to reasonably decide, rightly or wrongly, what Congress meant; it's that ambiguities (and vaguenesses) *do not commit* to meanings one way or another, and delegate to agencies the power to fill bounded policy spaces (or more conventionally, "gaps") with reasoned decisions about what the law *should* be, not what Congress specifically stated or intended on some question. So just by definition, Chevron doesn't contemplate deference to erroneous interpretations. An interpretation's only erroneous, within the Chevron framework, if it fails at Step One because it's clearly outside the bounds of the policy space delegated to the agency, or because there was no policy space (ambiguity) there to begin with. Once you have ambiguity and an interpretation's within it, you have, Chevron supposes, indeterminacy. Justice Thomas explained this beautifully last term, in the course of arguing Chevron was unconstitutional:

[A]gencies “interpreting” ambiguous statutes typically are not engaged in acts of interpretation at all. Instead, as Chevron itself acknowledged, they are engaged in the “‘formulation of policy.’” Statutory ambiguity thus becomes an implicit delegation of rule-making authority, and that authority is used not to find the best meaning of the text, but to formulate legally binding rules to fill in gaps based on policy judgments made by the agency rather than Congress.

Posted by: Asher Steinberg | Oct 21, 2015 4:39:36 PM

Steve, so I agree the Congressional compulsion question is harder, but I don't think that's unconstitutional either. And the answer why flows partly from Asher's comment.

I take it that you don't think that Chevron violates A3 by imposing a rule of decision on SCt. And I take it that you don't think so *even if* Congress expressly imposed Chevron by statute (which is essentially how Chevron itself reads -- namely, that the Ct wasn't *choosing* a rule, but was *following* the delegation imposed by Congress). So, why not?

The answer is because Congress in Chevron-by-statute is essentially delegating law-creating power to an agency. Now, that might violate A1 or non-delegation doctrine. See CT's ops last Term for the argument that it always does; see your original post for the suggestion that it would if there was *unfettered* discretion; cf. fn. 16 of Chadha. But if it doesn't violate A1 or non-delegation doctrine, then there's no reason it'd violate A3 -- the SCt gets to interpret the laws, but there's nothing to interpret under Chevron within the bounds of an ambiguous statute, because Congress has delegated the power to create law in those circumstances to an A1 entity.

Well, whether or not that's ok for federal agencies, I think it's almost certainly ok for the DC Court of Appeals. Because, under all those quirky DC cases, there's no non-delegation doctrine in DC. Congress can delegate raw legislative power to the city council, or the mayor, *or the DC Court of Appeals.* So if Congress could authorize the DC Court of Appeals literally to write and amend the laws as far as A1/non-delegation are concerned, then what's the A3 problem with Congress providing that the DC Court of Appeals' "interpretations" are binding? That's not really trenching on any rule of decision for the SCt, since the whole point is that there's never any ambiguity because whatever the DC Court of Appeals says *is* the law because they're creating the law, not just interpreting.

The one caveat to all this is that I suppose you could say that Congress has *not* purported to give the DC Court of Appeals the power to create the law, and since they haven't, making their interpretations binding is establishing a rule of decision. I suppose that might be right (classic q about whether greater includes the lesser). But you're still stuck with the fact that Congress *could* make the DC Court of Appeals the ultimate voice on DC law, by abolishing the City Council and having the DC Court of Appeals pass laws directly.

Posted by: Hash | Oct 21, 2015 6:54:05 PM

When Congress legislates for DC pursuant to the District Clause, it is viewed as having the plenary authority of a state legislature, rather than the limited authority of the federal legislature.

Congress's power over DC "covers all matters which, within the limits of a state, are regulated by the laws of the state only," including the power to delegate home rule to a local government. District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 106 (1953). Accordingly, Congress has delegated significant authority to local elected officials who are not appointed by the President and who are not required to act in accordance with any "intelligible principle."

Likewise, Congress can create DC courts that have all the characteristics of courts created by state legislatures.

In light of the consensus that the President cannot hire and fire the Mayor of DC, it is not that surprising that Article III courts cannot overrule DC courts on matters of DC law.

Posted by: Christopher | Oct 21, 2015 7:08:57 PM

Christopher -- I'm not sure I see why it follows from the scope of Congress's regulatory authority under the District Clause that Congress can subject all (or even some) disputes within the district to non-Article III adjudication. And although it's certainly true that Congress can choose and has chosen to delegate a fair amount of authority to the semi-autonomous D.C. Council, it's worth emphasizing how _little_ control that body has over the "local" courts in the District of Columbia. Not only does the Council have exceptionally little say in the selection and confirmation of judges to D.C. local courts, but by statute, it has _no_ power over those courts' jurisdiction. So whereas I agree that courts like the Territorial Court of Guam don't raise the same Article III questions (since they're not created and governed by Congress), the D.C. local courts are a bird of a different feather, no?

Posted by: Steve Vladeck | Oct 22, 2015 11:04:29 AM

Hash -- Again, I don't think there's a ton of daylight between us. My whole purpose here has been to point out the tension that arises from treating the D.C. local courts like state courts when, in fact, they're really just courts created by Congress (over which, per my response to Christopher, the D.C. Council has virtually no authority) applying and interpreting federal (for constitutional purposes) law. Of course, there are lots of ways in which Congress can allocate power among such tribunals. But if the supremacy of the Supreme Court has any constitutional teeth, isn't that supremacy jeopardized by a situation in which a federal body other than the Supreme Court is given authoritative (and not just deferential) control over the content of federal law? The answer may be no--but that would be telling in its own right, no?

Posted by: Steve Vladeck | Oct 22, 2015 11:12:20 AM

Sorry, Steve, but I guess i don't see why it's telling that the answer is no. The SCt has supremacy to resolve for the federal and state courts in cases within their jurisdiction what federal law means where there's ambiguity on the question, but it doesn't implicate that limited supremacy in the situations where entities other than Congress can authoritatively eliminate any ambiguity in federal law by creating additional binding federal law -- that's just the issue of the scope of Congress' power to delegate the law-creating function.

Posted by: Hash | Oct 22, 2015 1:52:30 PM

Hash -- I think the point of departure between us is the presence (or absence) of ambiguity. It seems to me that, even under Chevron, there is still an exercise of judicial power necessary to determine whether the statute at issue is, in fact, ambiguous. If Congress were instead to compel the Supreme Court to follow an agency's interpretation of particular statutes regardless of its merits, I have to think at least some jurists would balk...

Posted by: Steve Vladeck | Oct 23, 2015 8:55:54 AM

Steve, I was drawing an analogy to illustrate how Congress has established DC government structures that relate to the federal government as though they were state government structures.

In the executive sphere, the President's relationship to the Mayor of DC is similar to the President's relationship with the Mayor of Chicago, rather than the President's relationship with the Secretary of Energy. Although the Mayor of DC performs executive functions, they are viewed as "state" executive functions that the President does not control, rather than federal executive functions.

Likewise, in the judicial sphere, Article III courts relate to DC courts as though the latter were state courts, not federal tribunals. DC courts are "Article I" tribunals in the sense that the District Clause is part of Article I of the Constitution, but they are dissimilar from the other Article I tribunals because of the District Clause's unusual nature.

If you take the view that the DC courts are simply a commonplace Article I tribunal, then you should also take the view that the Mayor of DC is a commonplace executive officer who cannot constitutionally be elected by DC voters.

You raised the issue of the relationship between the Mayor and Council of DC on the one hand and the DC courts on the other, but that's immaterial. The important point is that both are creatures of Congress in its unique capacity as "state" legislator over DC.

Posted by: Christopher | Oct 23, 2015 3:10:02 PM

Christopher -- I don't see how the relationship between Congress, the D.C. Council, and the D.C. courts is "immaterial." If the whole point is that the relationship between Article III courts and the D.C. local courts should be understood as akin to the relationship between Article III courts and state courts, I'm generally inclined to buy that, except that's not what Congress has actually provided. After all, what state courts have their jurisdiction controlled exclusively by Congress, and their judges appointed exclusively by the President and confirmed by the Senate, with the "state" government having no authority whatsoever?

That's why I think there's no question about the constitutional legitimacy of the (non-federal) territorial courts in Puerto Rico, Guam, etc. (all of which are controlled by the territorial legislature), but serious questions about the D.C. local courts. Otherwise, isn't Congress getting to have its cake and eat it, too?

Posted by: Steve Vladeck | Oct 23, 2015 3:15:43 PM

Steve also asked: "But if the supremacy of the Supreme Court has any constitutional teeth, isn't that supremacy jeopardized by a situation in which a federal body other than the Supreme Court is given authoritative (and not just deferential) control over the content of federal law?"

I think the premise that the DC courts are a federal body for these purposes is mistaken, as is the premise that DC law is federal law.

DC law is a distinct body of law, in token of which it is codified in the DC Code rather than the US Code. DC law is not the supreme law of the land. It does not preempt state laws, and it can be preempted by federal law.

The Supreme Court is not the final interpreter of DC family law or DC contract law any more than it is the final interpreter of Nevada family or contract law, yet I think the Supreme Court has sufficient "teeth" in both DC and Nevada.

Posted by: Christopher | Oct 23, 2015 3:46:59 PM

Steve--Congress controls the jurisdiction of these courts in its capacity as "state" legislator, so that's fully consistent with the argument I'm advancing.

The fact that Congress has, in its discretion, involved the President in the appointment of DC judges is not determinative. The President participates in the appointment of the head of the GAO, yet the head of the GAO has been held by the Supreme Court to be an official of the Legislative Branch.

Prevailing doctrine assumes that Congress can largely "have its cake and eat it too" in DC. The historical reason for the District Clause is believed to be riots against the continental congress in Philadelphia that the assembled delegates were powerless to stop. Accordingly, Congress was given plenary authority over the city where it sits. This authority was invested specifically in Congress, not necessarily the federal executive or judiciary.

Posted by: Christopher | Oct 23, 2015 4:12:40 PM

Christopher -- Sorry for losing the thread on this, but just to close the loop, I think there is no question that the D.C. local courts are "federal" courts, insofar as they are (1) created and controlled directly by Congress; and (2) comprised of judges appointed by the President and confirmed by the Senate. Contrast that with the local courts in, e.g., Guam and Puerto Rico, and to me there's no question. If you disagree, then obviously my argument falls apart.

As for D.C. law not being the "supreme law of the land," I beg to differ. If D.C. law weren't federal law for constitutional (and Supremacy Clause) purposes, then how could the Supreme Court have decided Heller without "incorporating" the Second Amendment against state and "local" governments?

But at a more general point, I don't disagree at all that Congress has far broader regulatory power over D.C. than over any other non-federal territory or subject. I just don't think that fact, by itself, proves the validity of non-Article III federal courts in D.C. Otherwise, it would have to follow that, in any context in which Congress has exclusive regulatory power, it can authorize non-Article III federal adjudication. I think that would be more than a bridge too far.

Posted by: Steve Vladeck | Oct 27, 2015 8:05:27 AM

Steve, I appreciate your engaging with my points. I believe that my claims are descriptive of current law.

See, for example, Kennedy v. City First Bank of DC, 88 A.3d 142 (D.C. 2014). This is one of many cases in which DC's highest court has considered whether a D.C. Code provision is preempted by federal law. The stated reason for this preemption is the Supremacy Clause. The D.C. Code is treated as equivalent to a state law for purposes of the Supremacy Clause.

It is true that the Bill of Rights is applicable to DC, without incorporation via the Fourteenth Amendment. In that respect, DC is dissimilar from states. But it doesn't follow that DC law is supreme federal law.

Regarding the slippery slope that you mention, it is worth emphasizing that the District Clause is considered unique, and also that this uniqueness has been the status quo for some time. I think it's your burden to explain how much of the status quo you plan to unravel. For example, do you argue for presidential appointment of the Mayor of DC?

Posted by: Christopher | Oct 27, 2015 11:52:51 AM

Christopher -- I think we're reaching the point at which everything has been said, but just to clarify one thing, mine is not an argument about the scope of Congress's Article I power vis-a-vis the District, but far more specifically about Article III _limits_ on that power. Thus, Article III will of course have nothing whatsoever to say about the structure of the D.C. local government, or its relationship to Congress. Courts have been far more tolerant of open-ended delegations in those contexts than they have been with respect to the "judicial power of the United States."

In the end, my principal concern is the vulnerability of the justifications for treating D.C. _courts_ like state courts, not under Article I, but under Article III. You and I may have different views about the persuasiveness of those justifications, but I think it would prove far too much if the answer is that "Article III is irrelevant because of the nature of Congress's Article I power."

Posted by: Steve Vladeck | Oct 29, 2015 12:27:02 PM

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