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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Judicial Remedies and Structural Constitutional Violations
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Thursday, February 10, 2022
Judicial Remedies and Structural Constitutional Violations
Guest Blogger
For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021). Rachel Bayefsky Professor Aziz Huq’s The Collapse
of Constitutional Remedies provides a terrific 360-degree tour of the federal
courts’ treatment of judicial remedies for constitutional violations. Huq deftly traverses a range of domains, from
suits against police officers to habeas petitions to antidiscrimination
claims. Highlighting patterns in federal
courts’ limitations on remedies in numerous areas, Huq demonstrates the
analytic benefits that redound from observing cross-doctrinal patterns instead
of viewing each aspect of the law in isolation.
Further, Huq places federal courts’ treatment of constitutional remedies
in rich historical perspective, emphasizing the evolution of judicial decision-making
in connection with social and political trends. One of the book’s many interesting
contributions—and the point on which I will concentrate—is its argument that federal
courts have taken different approaches toward different kinds of constitutional
violations. According to Huq, federal
courts have restricted judicial remedies for constitutional violations stemming
from police violence or infringements of individuals’ civil rights. At the same time, federal courts have been
more willing to provide remedies in suits seeking to vindicate structural
constitutional principles, such as the separation of powers or federalism. The latter types of suits are often litigated
by companies objecting to administrative agency regulation. To
be sure, each doctrine Huq describes has its own structure and history. There may be doctrinally specific
explanations for the availability or absence of constitutional remedies in any
given circumstance. At the same time, there
is great value in taking account of broader trends, as Huq does when he
identifies distinctions in the treatment of different types of constitutional
claims. In
considering such distinctions, however, it is important to disaggregate two issues:
(1) federal courts’ willingness to provide an effective remedy; and (2) federal
courts’ willingness to reach the merits of the legal claims. With respect to effective remediation, one
might question the extent to which even those challenging structural
constitutional violations receive considerable relief. As Huq notes (142), criminal defendants
challenging their convictions on structural constitutional grounds do not
necessarily escape government coercion when a federal court agrees that the
statute of conviction is unconstitutional.
For instance, these defendants may remain subject to state
prosecution. Recent
cases involving structural violations provide all the more reason to ask about
the real-world relief that parties secure.
In the 2020 Supreme Court case Seila Law LLC v. Consumer Financial
Protection Bureau, for example, the firm Seila Law received an
investigative demand from the CFPB and, in objecting to that demand, challenged
the constitutionality of the CFPB’s structure.
In particular, Seila Law took issue with a statutory restriction on the President’s
ability to remove the CFPB Director from office. The Supreme Court, after agreeing with Seila
Law that the statutory provision restricting removal was unconstitutional,
severed that provision from the rest of the law establishing the CFPB and remanded
for the court of appeals to consider whether the investigative demand the CFPB
had issued to Seila Law was validly ratified by an official who was not afflicted
by the same constitutional infirmity. On
remand, the Ninth Circuit held that the investigative demand had been, in the
end, validly ratified. From Seila Law’s
perspective, the Supreme Court’s ruling may not have achieved all that much. To
take another example of limited remediation for parties in a structural
constitutional challenge: In Free
Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme
Court in 2010 held
statutory restrictions on the removal of members of a government agency to be
unconstitutional but severed these restrictions from the rest of the law creating
the agency. Those challenging the
restrictions were therefore entitled not to “broad injunctive relief against
the [agency’s] continued operations,” but instead to “declaratory relief
sufficient to ensure that the reporting requirements and auditing standards to
which they are subject will be enforced only by a constitutional agency
accountable to the Executive.” The Court
provided no indication that the challengers would be free from the relevant
reporting requirements and auditing standards. Two
cases that the Supreme Court issued just last Term underscore the elusiveness
of expansive remedies for some parties challenging structural constitutional
violations. In Collins v. Yellen,
a group of shareholders of Fannie Mae and Freddie Mac argued that the structure
of the Federal Housing Finance Agency (FHFA) violated the separation of powers
because the FHFA is led by a single director removable by the President only
“for cause.” The Court agreed
that the FHFA’s structure violated the separation of powers but remanded for
consideration of whether the unconstitutional removal restriction “inflict[ed]
compensable harm.” Presumably, the court
of appeals on remand may decide that the removal restriction did not. In that event, it is unclear what the
shareholders will have gained beyond the constitutional ruling that the FHFA’s
structure violates the separation of powers. Another
case last Term, United States v. Arthrex, involved an Appointments
Clause challenge to the structure of the Patent Trial and Appeal Board, an
executive adjudicatory body. The Board
held an Arthrex patent to be invalid, and Arthrex challenged the
constitutionality of appointments provisions for the Board’s Administrative
Patent Judges (APJs). The Supreme Court agreed
with Arthrex that the Board’s structure was inconsistent with the Constitution,
because the nature of the APJs’ responsibilities was not compatible with their
method of appointment. But the Court declined
to dismiss the administrative proceeding in which Arthrex’s patent was held
invalid. Instead, the Court held that APJs’
decisions must be subject to review by the Director of the Patent and Trademark
Office (PTO), and in those circumstances the statute was constitutional. The Court then remanded to the acting
Director of the PTO to decide whether to rehear the case. A few months later, an official performing
functions of the Director denied Arthrex’s request to review the case; that
denial is now on appeal to the U.S. Court of Appeals for the Federal Circuit. The bottom line: Any relief that would affect the validity of Arthrex’s
patent seems quite far away. Relief
for parties challenging structural constitutional violations, therefore, may be
limited in practice. True, this point may
be most applicable to recent structural challenges that the Supreme Court has decided. For example, many of today’s removal cases
involve situations in which the President has not tried to remove an official. By contrast, an official who seeks back pay
after the President attempts removal (as in the 1935 case
Humphrey’s Executor) could have a better shot at a more robust
remedy. Nonetheless, significant cases
in the past few years suggest that relief for structural constitutional
violations is at times ephemeral. One
might contend that a court order requiring government action to be carried out
by a constitutionally legitimate officer is a meaningful remedy even if the
substance of government regulation remains the same. In fact, I have argued elsewhere
that a declaration that one’s constitutional rights are being violated may
itself constitute proper federal judicial relief because it could redress dignitary
harm. Perhaps federal courts today are especially
prepared to treat “intangible” remedies as genuine forms of relief in the particular
context of structural constitutional challenges. If such an approach exists, however, it
requires justification. Although
parties raising structural constitutional objections may not receive anything close
to the remedies they seek, federal courts may still treat their suits
differentially in another sense.
Specifically, federal courts may be more willing to reach the merits of structural
claims, at a minimum those involving removal.
The Supreme Court in Seila Law stated that “a litigant
challenging governmental action as void on the basis of the separation of
powers is not required to prove that the Government’s course of conduct would
have been different in a ‘counterfactual world’ in which the Government had
acted with constitutional authority.” Although
this statement can be interpreted in multiple ways, it raises questions about the
threshold requirement of constitutional standing (consistent with Huq’s
observations, 121-22). Are regulated
parties’ financial harms “fairly traceable” to a structural constitutional
violation if there is no indication that a properly removable government
regulator would have acted differently? A
standing problem that might have been fatal in another suit seemed to have less
bite in the structural removal setting. Times
could be changing. Recent separate
writings in the Supreme Court, particularly by Justice Thomas, suggest an interest
in taking a closer look at justiciability and remedies questions in structural constitutional
cases. Dissenting in Arthrex,
Justice Thomas doubted the Court’s power to issue a remedy given that “[n]o
constitutional violation has occurred” if one accepted the Court’s view that
granting the agency director the power to review Board decisions rendered the
statute constitutional. Concurring in Collins,
Justice Thomas questioned whether the mere existence of an unlawful removal
restriction was sufficient for a court to rule in favor of those challenging
that restriction. In his view, parties must
instead show that the actual government action at issue was unlawful. Justice Thomas’s separate writings—and arguments
by Professor John Harrison that Justice Thomas referenced—may provide fodder
for the view that federal courts should be more reluctant to decide the merits
of structural constitutional challenges when the injury is ill defined or when the
relationship between injury and remedy is nebulous. Justice
Thomas’s increased attention to harm and remedy may be based on a formalist
approach, but those more pragmatically inclined have reason to focus on these
issues as well. When federal courts
declare agency structures unconstitutional, as dissents by Justices Breyer
and Kagan
have argued, they risk overstepping the judicial role by imposing a particular
vision of political accountability that may not closely fit the incentives and
structures of the real world. The
concern about judicial overextension applies as well when courts decide to
sever statutes instead of declaring an entire scheme unconstitutional; federal
courts are arguably not well suited to restructuring the chains of command within
administrative agencies. Apprehension
about the judicial role in structural constitutional challenges may call
for enhanced use of the “passive virtues”—application of tools like standing
and mootness to limit the circumstances in which courts reach the merits of a
constitutional claim. At the least,
courts should not reach out to decide structural constitutional issues in cases
that do not cleanly present these questions. In
sum, Huq’s book provides invaluable context and insight as courts and scholars
debate federal courts’ proper approaches toward relief for constitutional
violations. Rachel
Bayefsky is an Associate Professor of Law at the University of Virginia School
of Law. You can reach her by email at rbayefsky@law.virginia.edu.
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