A vigorous constitutional debate on AEDPA
(This is another in an occasional series of reports on the impact Supreme Court decisions have on other cases and controversies.)
The scope and meaning of the Supreme Court’s splintered decision on April 18, 2000, in Terry Williams v. Taylor, Warden (529 U.S. 362, docket no. 98-8384) has become a central point of dispute as a panel of the Ninth Circuit prepares to review the constitutionality of the 1996 law passed by Congress to restrict federal courts’ authority in habeas cases (the Antiterrorism and Effective Death Penalty Act)
Briefs filed in the Ninth Circuit case of Irons v. Carey (docket no. 05-15275) over the past few weeks have laid out sharply contrasting interpretations of Williams, especially disputing whether the Court there implicitly or explicitly upheld the constitutionality of AEDPA. Interestingly, the Justice Department, intervening in the case to defend AEDPA’s validity, does not make that argument. Other briefs, though, do make that assertion. The Ninth Circuit panel, in inviting briefs on the question, certainly treated it as an open issue.
The briefs provide a searching review of constitutional doctrine going back to Marbury v. Madison in 1803. (The briefs are linked as each is discussed below.)
The question the Ninth Circuit panel is exploring is whether AEDPA violates Article III, the judicial article, by seeking to undercut the federal courts’ power to independently decide issues of federal law, by requiring deference to state law decisions. That issue was raised by the panel on its own (one of the three judges on the panel does not support the inquiry), and called for briefs on it – including one by the Justice Department. The panel has not yet said whether it will hear oral argument before it addresses the issue.
(Thanks to Kent S. Scheidegger of the Criminal Justice Legal Foundation, Michael Laurence and Cristina Borde of the Habeas Corpus Resource Center, and Ronald S. Matthias of the California attorney general’s office for providing copies of briefs in the case.)
The Supreme Court’s ruling in Williams did not decide a constitutional challenge to AEDPA, although a question on that point was raised in the petition for review; it was not granted. Still, supporters of AEDPA’s validity contend that the Court’s opinion written by Justice Sandra Day O’Connor (one of two opinions speaking for the majority) has left little or no doubt that Congress had the power to enact the 1996 statute and its narrowing of judicial power to second-guess state courts’ criminal law decisions.
The California attorney general argues that “any suggestion that [AEDPA] impinges on the federal judiciary authority under Article III…has also been refuted – implicitly, yet unmistakably – by the Supreme Court’s decision in Williams v. Taylor…, in which the Court roundly rejected a narrow construction of AEDPA proposed by a four-member minority to satisfy their misgivings that the statute, unless so construed, might impinge on a court’s Article III prerogatives.”
The Criminal Justice Legal Foundation, an amicus in the Irons case, conceded that the Court’s denial of review of the constitutional question in Williams did not set a precedent. But it adds that “it would seem very odd to construe a statute in a particular way over a timely objection that construction would be unconstitutional without considering the objection, if the Court thought the objection had any merit.” The Foundation says that lower courts have considered the issue resolved since Williams.
The Foundation, even so, suggests that the Ninth Circuit itself has already upheld AEDPA’s constitutionality (in its 2000 decision in Duhaime v. Ducharme) and that is binding on the current panel. Thus, according to that brief, the constitutional question should be decided by the en banc Ninth Circuit, not this panel.
The Justice Department, while not debating whether Williams settled the constitutional question, argues that AEDPA does no more than “define the scope of the federal habeas remedy for state prisoners.” It says that Congress has had the authority to do that since at least the Supreme Court’s 1807 decision in Ex parte Bollman, an opinion that said the power of courts to issue habeas writs is controlled by Congress. (NOTE: Hofstra law professor Eric M. Freedman, in his 2001 book “Habeas Corpus: Rethinking the Great Writ of Liberty,” has argued that the Bollman decision read the courts’ constitutional authority in state prisoner cases too narrowly.)
In the Irons case, the public defenders for Carl Merton Irons (note: to open this brief, please save or open from your computer following the prompts) argue that, in AEDPA, “Congress has unconstitutionally attempted to divest the Judicial Branch of at least two of the necessary elements of Judicial Power that Article III vests in those courts: the power to grant a remedy and the power to independently decide what the Constitution requires.” That brief interprets the Williams decision as making clear that Congress in 1996 had moved “to restrict the source of law” that federal courts could apply.
Supporting Irons’ challenge, a brief by the Habeas Corpus Resource Center and several state defender groups reads the Williams decision as buttressing that challenge. It finds in that precedent the principle that Congress passed AEDPA explicitly to narrow federal courts’ habeas powers, while leaving open the question of whether Congress had the constitutional authority to do that.
That brief also takes on the argument that the Ninth Circuit itself had already upheld AEDPA’s restrictions, saying the Duhaime decision did not address that issue but rather rejected an argument that Congress did not intend in 1996 to scale back courts’ Article III powers – a point that Williams settled shortly thereafter.
Federal public defenders (note: to open this brief, please save or open from your computer following the prompts) in all the judicial districts in the Ninth Circuit also support Carl Irons in contesting AEDPA’s validity. With only a passing citation to Williams, that brief mounts a broad constitutional complaint against AEDPA for violating separation of powers doctrine, Article III, and the Supremacy Clause.
Any chance you can post the briefs online as PDFs? They’d be interesting to see.
Comment by Habeas — July 13, 2005 @ 4:47 pm
The briefs are now included in the post.
Comment by Heather Lloyd — July 14, 2005 @ 9:49 am
who are the members of the panel?
Comment by Janet Metcalf — July 14, 2005 @ 4:00 pm
How is “restricting the source of law,” as AEDPA does in requiring that the challenged court decision be clearly erroneous, objectionable? The defense of qualified immunity in civil cases does the same thing, limiting the source of law the challenger can rely upon to seek damages from the government official who allegedly violated her constitutional rights — by requiring that the plaintiff show that the law was “clearly established” at the time the defendant acted, based on controlling Supreme Court and appellate court precedent. No one has ever suggested that that violates the separation of powers or the principle of judicial review.
Comment by Hans Bader — July 14, 2005 @ 6:37 pm
Hans:
You can’t be serious can you? Qualified immunity is compelled, according to the Court’s prior proceedings, by the very constitution itself not by a mere statute as in AEDPA litigation. There is no settled area of the law where, finding constitutional error, a court, assuming the issue has been properly presented, can deny relief. Expect to see Irons or a Real ID Act case (or a SPA case if it passes) or a similar Congressional power to regulate Article III jurisdiction case before the Court in the coming Term as Congress is going wild with this silly type of legislation.
- k
Comment by karl — July 14, 2005 @ 10:31 pm
Qualified immunity is not constitutionally required. Rather, it is a prudential doctrine designed to limit the “social costs” of litigation against public officials for their official acts. These costs “include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Should Congress want to create causes of action against federal or state officials which apply without regard for the official’s good faith, I don’t see any reason why this would be unconstitutional.
Indeed, Harlow itself was a Bivens action–a remedy created entirely by the Court–so the Court’s initial basis for creating the immunity doctrine was even stronger than, say, in the case of a Section 1983 action, which was created by Congress.
Comment by Brian — July 15, 2005 @ 9:24 am
Qualified immunity in state-officer cases comes from an interpretation, albeit a strained one, of a statute, 42 U.S.C. 1983. It is indeed on point. A remedy created by statute only applies to violations of the law that were clearly violations at the time of the act, not to dubious cases. Congress created the remedy and can limit its scope.
Another analogous doctrine is the Full Faith and Credit Act. Congress can decide when and to what extent federal courts will deny relief to people who have already litigated and lost the same claim in state court, regardless of the federal court’s view of the merits.
In answer to Janet Metcalf’s question, the panel consists of Judges Reinhardt and Noonan, who concurred in the issuance of the briefing order, and Judge Fernandez, who dissented. If Reinhardt and Noonan really go down this road, look for a dissent from Fernandez that scorches the paper it is written on.
Comment by Kent Scheidegger — July 15, 2005 @ 5:06 pm
I appreciate all the comments about existing law, precedents, and interpretations, but the heart of the matter is that Irons is still in prison eventhough he has “jumped throught all the hoops” that BPT and the parole board have lined up for him. What does someone have to do to get a parole date? The judge in his case sentenced him to 17 to life and he has been incarcerated for at least 21 years. Judge Reinhart is correct in his suggestion that the parole board has eliminated the difference between life with parole and life without parole. The parole board should be named the non-parole board and eliminated to save the state time and money.
Comment by Joe Tkac — August 17, 2005 @ 1:49 pm
Joe Tkac’s position is certainly a supportable one as a matter of policy, but the question is whether it is required by the Constitution of the United States. Can the people of a state, through the democratic process, decide to allow the parole board to consider the circumstances of the original offense in their decision to grant or deny parole? It is a debatable question, and Irons has already had his day in court on it.
Should Congress provide a “heads I win, tails we take it over” system of review, where defendants who win in state court win and otherwise the federal courts consider the question from scratch? Some people, including Senator Biden, think so. But that question was extensively debated and voted on, and those who think not prevailed. Does the Constitution empower the judiciary to overrule Congress’s decision on that question? I think not.
Comment by Kent Scheidegger — August 18, 2005 @ 2:19 pm