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Monday, April 16, 2007
Oral Argument in Coke
The oral argument transcripts in Coke are now available here.
A few little thoughts based on oral argument:
1. Scalia looks like he's interested in legislative history. Of course, he says, "I usually ignore [legislative history]," but he seems to think it relevant in this case. He also seems unwilling to play the textualist game with Coke's lawyer. Coke gives Scalia a number of perfectly plausible textual canons to play with to reach his conclusion -- but Scalia doesn't want to use small word differences to infer meaning. Not his usual course, to say the least. He is willing, however, to see 552.5 and 552.109(a) as inconsistent, a very important point for Coke, for reasons I explain in 4. Still, his colloquy with Coke's lawyer does seem to make clear that he thinks that the agency gets to decide which of its 2 conflicting regs gets to be effective and which gets to be ignored. This is unsurprising, since Scalia essentially believes there is only one kind of deference -- and agencies get it or don't. He refuses to follow Mead and recognize that 2 regs can stand on different footing (something Alito seems to allow for in his colloquy with Coke's lawyer). In fact, Scalia still can't give up his theory that Chevron killed Skidmore. That he wastes his breath saying it out loud when there is no evidence that anyone on the Court agrees with him is notable. I suppose Roberts or Alito could come around to his view -- but I wouldn't bet on it.
2. Ginsburg seems inclined to vote for Coke and is underwhelmed by the DOL's and SG's arguments.
3. Stevens is focused on the practical reality that the defendants are protected from damages liability if 502.101(a) is held unenforceable. He thinks the case is really only about the prospective effect of the reg at issue. If this is right (something the SG doesn't fully concede), he may be more inclined to vote with Coke and ignore all the doomsday predictions the defendants and their amici have offered.
4. Roberts is, at first, convinced that 552.3 and 552.101(a) conflict. This is very important: the defendants agree that a lot hinges on whether the DOL regs are internally inconsistent. This is even more so because everyone agrees that 552.3 deserves Chevron deference: if 552.3 gets Chevron deference, it is much more likely that 552.101 would be held to be unenforceable. However, later in the argument Roberts seems to think that 552.3 is inconsistent with the statute and so would itself be unenforceable. This last claim strikes me as quite weird. Then even later in the argument, he thinks he can find a way to render them consistent after all. Roberts is clearly still on the fence in this case.
5. Breyer is not convinced that 552.3 and 552.101(a) conflict at all. He may be an important vote against Coke here. Breyer also furnishes a pragmatic reason for wanting to uphold the reg: he claims that if Coke wins, many more people will end up in institutions because sons and daughters who do not live in the household with their elder parents will have to pay minimum wages because they will be third-party employers. He finds this very "worrisome." More, he assumes that this can't be what Congress intended. [I have to say that I think there is a lot wrong with this reasoning, something I will try to address in a separate post someday.] Finally, Breyer at first refuses to see that the DOL was rather specific about which parts of 552 were promulgated pursuant to its rulemaking authority -- and 552.109(a) was not part of that exercise of authority. Then he backs off, realizing he missed something rather clear. More generally, though, it shows where his heart is -- and it isn't with Coke.
6. Souter didn't say a word. Weird, given that Mead was his baby; Mead gave the Second Circuit so much of a basis for its holding -- and this case could be a good opportunity to help clarify some of the problems Mead has created in the lower courts. For a helpful discussion, check out Vermeule's "Mead in the Trenches" article in the GW Law Rev.
Posted by Ethan Leib on April 16, 2007 at 04:26 PM in Constitutional thoughts | Permalink
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Comments
I am not familiar with this case so may be missing something very basic, but couldn't it be a fair counter to Breyer's policy argument that without FLSA coverage many more low-wage care workers (like Coke) may need assistance from family members or the state in their retirement (or be forced into institutionalized care) when they wouldn't have ended up in such dire straits if they'd been paid statutory overtime and/or min. wage? I'm making this up and don't have any data, but J. Breyer didn't really seem to have any either. And at least I have Ms. Coke as an example; she seems in need of help, at least according to the NY Times.
Posted by: Liz | Apr 17, 2007 2:26:51 PM
At the end, even Justice Ginsburg (the most sympathetic to Coke) made a comment to the effect that if Coke prevailed it would drive up costs for companionship services. Don't bet on affirmance.
Posted by: Phil Zipin | Apr 17, 2007 9:13:56 AM
And to defend Manning! :)
There are many textualists out there, some of whom have a great deal of antipathy to legislative history. So much antipathy that they might ignore Congress even if Congress enacted a law that said to the Court: please consult legislative history. I guess I could be wrong about that, since no living, breathing textualist jumps to mind.
Posted by: Ethan Leib | Apr 16, 2007 10:12:35 PM
Oh, and I'm not trying to make too much out of your errant remark in your blog post -- I just seize any chance that I can get to blab about the evils of legislative history.
Posted by: andy | Apr 16, 2007 10:03:38 PM
"LH can't be considered, cross-referencing may not be constitutional."
Why wouldn't cross-referencing be constitutional? Congress cross-references things all the time. That Congress cross-references to, say, state law (e.g. IRC 368(a)(1)(A)) does not mean that it has delegated its lawmaking power to the states.
Similarly, Congress is not delegating its lawmaking powers when it says that a particular item of legislative history may provide a source of law. There are a few statutes out there that say that "X Report may be considered." What textualists argue that Congress can't do is delegate powers to legislative committees-- they do not argue that Congress cannot incorporate committee publications, but only that those publications cannot be considered *per se* authoritative expressions of legislative intent. See generally John F. Manning, Putting Legislative History to a Vote: A Response to Professor Siegel, 53 VAND. L. REV. 1529, 1541 (2000).
Posted by: andy | Apr 16, 2007 10:01:34 PM
That's right (that Scalia says what you say he says). But it isn't obvious that LH is allowed to be cross-referenced. If textualists are serious about a version of the non-delegation theory of why LH can't be considered, cross-referencing may not be constitutional. Anyway.
I'm making small comments here; not trying to make too much of off-hand remarks from the bench.
Posted by: Ethan Leib | Apr 16, 2007 8:18:15 PM
"Scalia looks like he's interested in legislative history. Of course, he says, "I usually ignore [legislative history]," but he seems to think it relevant in this case. "
I'm looking at page 10 of the transcript. Doesn't he say that he will look at the LH only because it is reproduced in the regulation? That's different from giving LH independent authoritative effect -- surely textualists agree that you can give LH effect when it is cross-referenced in a duly enacted statute or reg.
Posted by: andy | Apr 16, 2007 7:24:21 PM
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