an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
John Roberts and the SG's Refusal to Defend Federal Statutes in Metro Broadcasting v. FCC
The Washington Post reports today that John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing. (In fact, Roberts was the Acting Solicitor General for purposes of the case, because SG Starr had a conflict.) The case in question was Metro Broadcasting v. FCC, and it raised very interesting questions about the circumstances under which the Department of Justice will refrain from defending the constitutionality of federal statutes.
As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever "reasonable" arguments can be made in support of such statutes -- i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches -- the Congress that voted for the law and the President who signed it -- have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.
There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the "must-carry" provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.) (Quiz: Name the one case in which the President publicly concluded that a statute was unconstitutional and yet the SG nevertheless defended it in the Supreme Court. Hint: The SG in question was Erwin Griswold.)
What is (as far as I know) unique about Metro Broadcasting is that it appears to be the only case in recent memory that does not fall into any of these three categories. The case arose as a result of a longstanding FCC policy of awarding licensing preferences to broadcast stations having a certain level of minority ownership or participation. The FCC initiated a review of this policy under the Reagan Administration, in response to which Congress passed three appropriations riders, in 1988-1990, forbidding the FCC from using appropriated funds to examine or change its preference policies. In their signing statements, both President Reagan and President Bush raised constitutional objections to other provisions of the bills in question, but did not object to the minority-preference provisions. In a subsequent lawsuit challenging the preferences -- Metro Broadcasting -- the SG permitted the FCC to appear in Court through its own attorneys to defend the constitutionality of the preferences and the federal laws requiring them. The arguments in favor of the statutes were certainly "reasonable," especially in light of the view of several Justices in Fullilove v. Klutznick that congressionally authorized affirmative action programs should not be subject to the strict scrutiny that the Court had (in Croson) applied to state and local affirmative action programs.
The FCC Commissioners and General Counsel unanimously urged the Department to defend the statutes as well, emphasizing that the U.S. Court of Appeals had upheld the central policy and that "there is a solid foundation in the Supreme Court's precedents for the government to argue that the FCC's policies are constitutional." But, as the Post story today reports, a memo in the files of Associate White House Counsel Fred Nelson (see the back page of this) reveals that Roberts was "[r]eluctant to defend [the] commission's position." In the Supreme Court, the Department of Justice not only did not defend the federal statutes -- it urged the Court to declare them unconstitutional. Acting Solicitor General Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. The Acting SG's amicus brief went further still: It urged the court to reject the deference to Congress suggested in Fullilove, and to apply strict scrutiny to federal affirmative action programs (a position that would, of course, restrict Congress's future legislative prerogatives -- i.e., that would substantially limit federal power).
Acting SG Roberts took this position attacking the federal enactments even though (i) there were more-than-reasonable grounds for defending them; (ii) they did not implicate the President's constitutional powers; and (iii) the President had not (publicly) indicated any constitutional objection to the provisions. (Not only had President Bush signed one of the laws -- he had also appointed three new FCC commissioners who each had expressly supported the diversity preferences in their confirmation hearings.)
The Supreme Court rejected the Acting SG's arguments by a 5-4 vote, although it would later hold in Adarand that strict scrutiny does apply even to federal affirmative action programs.
I should make clear that I although I do not agree with the substantive equal protection argument that John Roberts made in Metro Broadcasting, I do not think it was plainly inappropriate for the Acting SG to file a brief attacking the statutes, assuming the President had concluded that they were unconstitutional and that it was in the best interests of the United States that the Court apply strict scrutiny to federal affirmative action plans. What is odd about DOJ's brief in Metro Broadcasting is that the President signed the bill containing the provisions in question, and never publicly questioned their constitutionality. I think we have to assume that the White House -- that is to say, the first President Bush -- signed off on John Roberts's proposed course of action. (If the President did not do so, then Roberts's brief would, of course, be very troubling. And if the President did do so, then I do find it troubling that the President never publicly took responsibility for the decision and explained his change of mind.)
It would, in this respect, be extremely interesting to see the correspondence and memoranda between the White House and DOJ concerning the case, and to see how John Roberts convinced President Bush not only that a law he had signed was unconstitutional, but also that the Administration should urge the Court to invalidate it. However, the present Administration is resisting the request of Senators to see the Metro Broadcasting files, and therefore we may never learn the full story of this most unusual case of a DOJ refusal to defend federal laws.
In the absence of such documentation, and in light of the Nelson memo, I think it is fair to assume that it was John Roberts who was principally responsible for convincing the President to attack the constitutionality of the laws -- and to break new ground by doing so in circumstances where the Department had never before refused to defend the constitutionality of a federal enactment, i.e., (i) where the President himself had signed the law, without constitutional objection; (ii) where the Executive branch agency, led by the President's own apointees, was defending the law; (iii) where the statute did not implicate the President's own authorities; (iv) where reasonable (indeed, prevailing) arguments could be proffered in support of the statute; and (v) where the SG's arguments would, if adopted, dramatically restrict the future powers of the Congress and of the President.
As I say above, I don't think there was necessarily anything wrong (apart from the merits) with John Roberts having so persuaded the President. But if this is what happened, I think it is fair to assume this: that John Roberts himself had extremely strong, sincere views that federal affirmative action is constitutionally suspect and ought to be presumptively invalid -- views so strong that he was willing to go to the mat to persuade the President to act in such an unprecedented manner, and in the teeth of the opposition of the President's own FCC appointees. And, if it's the case that Roberts had such strong views about the constitutionality of federal affirmative action, I think we can also assume this: that his constitutional understandings and commitments are not determined by plain (or "original") meaning, or by original intent -- not that he has ever suggested otherwise. Posted
by Marty Lederman [link]
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I believe that then Solicitor General Ken Starr essentially derailed his career track to the Supreme Court by opposing the Bush 41 Administration on a race case in the same manner. I cannot remember which case it was.
Roberts should be opposed for sucking up to the President and his staffers in interviews for the Supreme Court position while at the same time he is ruling on the same president's power to confine people without rights becuses the President has declared that person an "enemy combantant" by a Bill of Attainder. Roberts should have recused himself or npt interviewed for the Supreme Court. He displays a chilling lack of judicial ethics.
Given Roberts' pointed reference to Prof. McConnell's 1995 law rev. article arguing that Brown v. Board of Ed. is consistent with the original meaning of the 14th Amendment, I don't think your conclusion follows at all.