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Thursday, February 05, 2015

Plaut v. Spendthrift Farm and the Sequencing of Constitutional Claims

Plaut v. Spendthrift Farm is a separation-of-powers decision concerning Congress’s (lack of) power to mandate the reopening of final judgments in federal courts. Specifically, the Court in Plaut held that Congress had violated constitutional separation-of-powers requirements by requiring U.S. district courts to reinstate certain federal securities-fraud cases that they had previously dismissed as time-barred.  The separation-of-powers issue is interesting in its own right, but I’ve lately found myself wondering about a separate aspect of the opinion—namely, the Court’s justification for its decision not to address an alternative argument concerning the defendants’ due process rights under the Fifth Amendment.

That the Court in Plaut prioritized resolution of one constitutional issue over another is hardly remarkable: Litigants in Supreme Court cases routinely assert alternative constitutional grounds for relief, and the Court very often chooses to focus on one such ground while leaving the resolution of the other constitutional claims for another day. But Plaut is unusual in that the Court offered some explanation as to why it had chosen to sequence one constitutional claim (i.e., the separation of powers claim) ahead of another (i.e., the due process claim). Specifically, as Justice Scalia observed for the Plaut majority, resolution of the separation-of-powers claim would affect only the powers of the federal government, whereas resolution of the due process claim “might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment.” The separation-of-powers claim therefore presented the “narrower ground for adjudication of the constitutional questions in this case,” and that was enough to justify the Court’s decision to “consider it first.”

Let’s call this the “Plaut presumption”: It’s a sort of variation/extension on the constitutional avoidance principles set forth in TVA v. Ashwander—applicable not to cases in which the Court considers both constitutional and nonconstitutional grounds for a holding, but rather to cases in which all of the potential grounds are constitutionally-based.  The Plaut presumption, in other words, calls for an intra-constitutional evaluation of narrowness, so as to yield a sequencing of constitutional adjudication that proceeds from most to least narrow.

Now, without looking into it the matter in much depth, I would hazard to guess that the Court has not fully committed itself to the Plaut presumption: In other words, I suspect we could identify several cases (both pre- and post-Plaut) in which the Court has arguably deviated from the course of confronting alternative constitutional arguments in a descending order of narrowness.  Still, the Plaut presumption remains at least theoretically interesting in light of its suggestion that one constitutional “ground for adjudication” can qualify as “narrower” than another, which in turn raises the question of how to evaluate the comparative narrowness/breadth of two or more constitutional claims. If, in other words, we were fully committed to the Plaut presumption, what criteria of narrowness should we look to in sequencing the resolution of multiple constitutional questions?  Here are a few possibilities:

  • Geographic Scope: This is the criterion relied on by the majority in Plaut. The separation-of-powers question counted as narrower than the due process question because the former carried implications for the federal government whereas the latter carried implications for both the federal government and state governments.  This criterion is sensible enough on its own terms: all else equal, a holding that binds 51 jurisdictions would seem to be broader than a holding that binds only one such jurisdiction. Still, the “geographic scope” criterion gets us only so far: Lots of cases, for instance, will involve claims that government action violates multiple constitutional rights—rights that apply more or less equally against the federal and state governments. Lots of other cases will involve multiple alternative claims concerning Article I and constitutional structure—claims that have little, if anything, to do with the states.  In those sorts of cases, then, geographic scope alone cannot be definitive.  What is more, as we will soon see, focusing exclusively on geographic criteria might obscure other important features bearing on the overall narrowness/breadth of a given constitutional claim.
  • Political Reversibility: One of the reasons why Ashwander favors the resolution of nonconstitutional over constitutional claims is that the former, unlike the latter, are reversible through political means.  At first glance, that logic would seem inapplicable to cases involving only constitutional claims, but on further investigation some possibly useful distinctions might emerge. For example, suppose that plaintiffs have challenged a state law on the ground that it violates dormant Commerce Clause doctrine and also Privileges and Immunities Clause doctrine.  Plaut’s agenda-setting logic would likely favor prioritization of the dormant Commerce Clause claim (on the theory that Congress can always override a dormant Commerce Clause decision—but not a P&I decision—with which it disagrees).  And to the extent there exist other politically reversible rules of “constitutional common law,” Plaut would favor resolving claims arising under those rules before claims arising under the operative constitutional propositions themselves. (And, of course, if ever a party argued that a law violated, inter alia, the unamendable constitutional guarantee of equal state representation in the Senate, then that claim should be pushed to the very, very back of the line!)
  • Means of Compliance: Related to, but ultimately distinct from, the question of political irreversibility is the relative degree of flexibility political actors would have in complying with a given constitutional holding. To take an abstract example, striking down a government program on procedural due process grounds might often afford the government a greater degree of remedial leeway than would striking down the same program on substantive due process grounds: the procedural due process holding would simply limit the means by which the government could deprive an individual of life, liberty, or property, whereas the substantive due process holding would categorically foreclose the government from achieving the deprivation, period. Similarly, perhaps, the Constitution’s equality-related guarantees will provide a “narrower” basis for decision than the Constitution’s substantive-guarantees, in the sense that the former might sometimes permit the government to choose between subjecting either everyone or no one to a form of preferential treatment, whereas the latter will always require the government to pursue the former course.  And, we could imagine other more context-specific bases for concluding that different theories of constitutional harm might afford government actors more or less regulatory freedom in the choice of how to alleviate that harm. 
  • Precedential Impact: Another axis along which to evaluate the relative narrowness of alternative constitutional grounds for relief would relate to the precedential status quo.  Suppose that one constitutional claim rests on a rule of constitutional law that is well established and applies clearly to the facts of a case; suppose that an alternative constitutional claim rests on a murkier constitutional standard whose application to the facts is anything but clear. Under these circumstances, we might understand the Plaut presumption to favor the “easy” constitutional claim over the “difficult” constitutional claim, on the theory that resolving the easy claim will merely confirm a point we already understood the applicable precedents to establish, whereas resolving the difficult claim will be more likely to result in a “new” rule of constitutional law that we had not previously encountered.  And it would apply even more forcefully in cases presenting a theory of constitutional relief that depend on a reconsideration of previous decisions. (Why go to the trouble of confronting difficult questions about stare decisis, the argument would go, when you could reach the same result without overruling any prior precedents at all.)  

Anyway, those are some preliminary thoughts as to how someone fully committed to the Plaut presumption might go about applying it in future cases.  Interesting questions remain, however, as to (a) whether it's worth thinking about narrowness at all in Plaut-like cases; (b) if so, whether additional criteria of narrowness should factor into the inquiry (and/or whether any of my proposed criteria should be excluded); and (c) what to do when one criterion of narrowness appears to conflict with another. Suppose, for instance, that litigants have challenged a federal law on both structural and rights-based grounds, and suppose further that the rights-based argument already has some support for it under existing law whereas the structural argument presents a genuine question of first impression. The “geographic-scope” criterion would favor resolution of the structural argument prior to the rights-based argument, whereas the “precedential-impact” criterion would favor the opposite approach.  How, under the Plaut presumption, should we sequence the issues?

A final thought involves how these criteria might influence our thinking about the sequencing rule of Ashwander itself.  Ashwander, as I’ve noted above, embraces the “political reversibility” criterion of narrowness.  But we can imagine constitutional/nonconstitutional cases in which that criterion might run up against others that point in the other direction. Suppose, for instance, that challengers to a law had asserted a fairly straightforward constitutional ground for relief and a much more complicated/uncertain statutory ground for relief? Or what about the choice between a structural constitutional claim that would impact only the federal government, and a rights-based nonconstitutional claim that would impact both the feds and the states? Ashwander would say: “address the nonconstitutional claim first.”  But if variables like precedential impact and geographic scope are also relevant to our evaluation of the claims’ respective narrowness, then even from a pro-minimalist, pro-avoidance standpoint, we might at least sometimes want to reach the constitutional issue before confronting its nonconstitutional counterpart.

Posted by Michael Coenen on February 5, 2015 at 09:58 AM in Constitutional thoughts, Judicial Process | Permalink


I don't know if the comment above disagrees, but I think that what's narrower in the Marks context can be determined in a very formalist way. Where different Justices give different grounds for concurring in a judgment, the narrowest ground advanced is the one that, when applied, would lead to the fewest iterations of the result the Court reached. Where, for example, the Court invalidates a regulation of some type and the Justices in the majority disagree on the appropriate standard of review, the narrowest ground is the most deferential standard, because that would lead to fewer invalidations. Where the Court, on the other hand, upholds a regulation of some type but disagrees on the standard of review, the narrowest ground is the least deferential, because that would lead to the fewest holdings that regulations of that type are valid. The point of Marks is to find a subset of cases in which five Justices who joined the judgment would agree, and would reach the same result that they reached in the actual case before them. Where three Justices invalidate a law on strict scrutiny and two on intermediate, all five agree that laws of that type that fail intermediate scrutiny are unconstitutional and that such a failing is a grounds for their judgment (though admittedly, the Justices who vote for strict scrutiny may think that the law in question passes intermediate scrutiny). I think the kind of narrowness the Court's talking about in Plaut is completely different and much harder to arbitrate.

Posted by: Asher | Feb 6, 2015 1:44:56 AM

This is a great post.

This question of "what counts as narrower" comes up in the context of the much-maligned (and rightly so) Marks rule. Narrowness isn't particularly meaningful when you're talking about different categories or classes. One might even say that engaging in the inquiry at all requires a commitment to a kind of category mistake.

Other criteria we might consider if we did want to talk about narrowness--which only further show why the game isn't worth the candle--include:

-The number of cases/parties likely to be affected (either litigated cases or cases on the ground)

-The types of parties likely to be affected (legislators only? police officers?)

-The level of generality of the constitutional rule invoked

-The extent to which the outcome turns on the particular facts of the case (related to generality)

-The nature of the evidence required to answer a question of constitutional interpretation (e.g., precedent alone? practice? founding-era sources?)

-In appellate courts, the extent to which members of a voting panel or the en banc court can agree on a particular constitutional rule

Posted by: Steve H | Feb 5, 2015 2:17:17 PM

Could we frame the question on a different line: Internal v. External limits on powers, with the former being "narrower." E.g: it is narrower to say that Congress lacks the internal Commerce Clause power to make people buy broccoli than to say that the Due Process clause prohibits Congress from making people buy broccoli.

Posted by: Howard Wasserman | Feb 5, 2015 10:33:33 AM

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