Analysis: The Constitution and AEDPA
Some 22 months after a federal appeals court raised a major constitutional issue that the Supreme Court has yet to confront, the lower court has provided an answer — though not in a binding precedent. It also has cleared up a fascinating mystery. With that solved, the controversy now seems back on track toward the Supreme Court.
The issue can be stated simply: did Congress act unconstitutionally in 1996 when it passed a law strictly curbing the power of federal courts to overturn state criminal convictions? The law is the Antiterrorism and Effective Death Penalty Act, now lying at the core of all federal habeas law.
The Supreme Court provided its most comprehensive interpretation of that law in the splintered decision in Williams v. Taylor, in April 2000. But the Justices have never examined the constitutionality of the Act, and some lower courts ssume that the Court, having decided an array of AEDPA cases, simply accepts as implicit that the law is valid.
When the Ninth Circuit Court, on its own, stirred up the issue, this was widely noted. This blog in fact covered the controversy extensively — here and here and here. But since the last post, in July 2005, the dispute has gone unmentioned on this blog and virtually everywhere else.
The Circuit Court, quite unexpectedly, asked the constitutional question on May 4, 2005, in an otherwise fairly routine case about California parole procedures — the case of Irons v. Carey (Circuit docket 05-15275). After taking a quick look at it at a hearing, that Court ordered supplemental briefing, and an array of impressive arguments came in, including a full defense of the law by the U.S. Justice Department.
But, in another expected turn, in late October 2005, the Circuit Court panel referred the case for possible mediation. No public reason was given. The case was suspended for 60 days, and the constitutional issue faded from view. At least one commentator thought this was an admission by the Circuit Court that it had made a mistake in bringing up the question at all.. In November of that year, after a settlement assessment by telephone, nothing of consequence happened in the case for months — at least, so far as the Court docket showed.
Sometime in that November, however, the idea of mediation had been given up, although that did not appear on the docket until February of this year, without explanation
Last month, the case suddenly gained new life — and the constitutional issue resurfaced.
On Feb. 28, the case was resubmitted to the panel for decision, although this did not appear on the docket until Tuesday of this week. Also on Tuesday, ending the mystery surrounding the case, the panel issued an opinion rejecting on the merits Carl Merton Irons’ habeas challenge to his failure to be put on parole. It was unanimous.
A footnote at the end of Circuit Judge Stephen Reinhardt’s opinion for the Court noted the maneuver on AEDPA’s constitutionality, but said the panel was “now persuaded” that one of the Circuit’s own precedents, Duhaime v. Ducharme in 2000, “answers that question, correctly or not, for the court” — that is, it upheld AEDPA’s constitutionality. “A three-judge panel of this court is without authority to overrule a holding of an earlier panel,” the footnote said. “Only an en banc court has the authority to do so.” (The decision can be called up on the Circuit Court’s website. Click on the Opinions block, go to Search and enter the docket number, 05-15275, then click Submit. The link leads to both the decision on the merits on Tuesday and the Court’s May 2005 order of supplemental briefing.)
Attached to the ruling were three concurrences, one by each panel member: Reinhardt and Circuit Judges John T. Noonan, Jr., and Ferdinand F. Fernandez. It had been Reinhardt, a noted liberal member of the Ninth Circuit, and Noonan, a noted conservative member, who had raised the constitutional question; Fernandez had not joined that order.
Judge Noonan’s lengthy concurrence raised all of the constitutional objections that the most serious critics have about AEDPA, stressing what Noonan perceived as a serious assault on the independence of the courts by dictation from Congress on how to decide cases. “To allow the legislature to decide a case is to deny the separation [of powers]. To allow the legislature to tell a court how a case should be decided is worse. It allows the legislature to mask itself under judicial robes. It puts forward as the judgment of a court what in actuality is the judgment of the legislature. Impermissibly it mixes the two branches. It does so to the great detriment of the judicial branch which is made to act as if it were performing its judicial task while it has had its ability to perform this task removed.”
Judge Reinhardt’s concurrence echoed the themes briefly: “Having granted the courts the authority to review state convictions under our habeas powers, it seems to me inconsistent with our fundamental obligations as judges to require us, except in unusual or exceptional circumstances, to rule for the state regardless of whether it violated the Constitution. Such a mandate appears to me to tell us how to decide a case. That, for reasons Judge Noonan so well expresses, Congress simply may not do.”
Judge Fernandez joined in the controlling opinion on the merits, but used his concurrence to raise the possibility that the other two judges might be seen to have set up an intra-Circuit conflict “which district courts and attorneys had better take into account.” He disclaimed that motivation, though, saying it was not their intention.
It now appears a virtual certainty that rehearing en banc will be sought, either by counsel or by one or more members of the Court, and, from there, an appeal to the Supreme Court may well be in the offing.
(Howard Bashman of How Appealing blog, who provided the first alert on the Circuit Court’s move to raise the constitutional question, also put out the alert on Tuesday’s decision. The blog thanks hm for his continuing diligence in monitoring the appeals courts’ work.).
The Reinhardt and Noonan concurrences suggesting AEDPA is unconstitutional are erroneous and do not withstand the most cursory analysis.
AEDPA’s requirement that conduct violate clearly-established law to justify relief is no more objectionable than the well-established doctrine of qualified immunity, which denies damages to people injured by constitutional violations in civil cases unless the constitutional violation is clearly established.
In many, many cases, the effect of qualified immunity is to deny ALL relief to the injured litigant (The alternative — forward-looking, injunctive relief — is often unavailable to an injured litigant due to mootness or other jurisdictional limitations on relief, which cannot be granted merely because qualified immunity bars retrospective relief).
By contrast, AEDPA does not limit relief on direct review in state courts at all, but rather focuses on limiting duplicative challenges brought in federal court after the same challenges have already been reviewed and rejected by state courts.
Both Judge Reinhardt and Judge Noonan have applied the doctrine of qualified immunity to bar relief, without any suggestion that it is unconstitutional.
(Note that the Supreme Court has said that qualified immunity is not rooted in the Constitution itself, but rather is an implied judge-made exception to liability fashioned for policy reasons, so it stands on no stronger a footing than the AEDPA, which is based on an express federal enactment. Federal laws override judge-made rules not rooted in Constitutional requirements, such as rules of civil procedure, or judicially-implied immunities from suit).
Judge Reinhardt and Judge Noonan do not explain, or even attempt to explain, how AEDPA can be distinguished from the settled, well-established doctrine of qualified immunity, which bars relief in a similar fashion.
Nor do they even bother to address many other arguments in favor of AEDPA’s constitutionality that legal scholars have made.
Comment by Hans Bader — March 8, 2007 @ 10:11 am
Judge Noonan’s opinion sets up the straw man of the weakest of the arguments against his position — that AEDPA is merely a lesser exercise of the greater power to control jurisdiction — and then knocks it down. He simply ignores the stronger arguments.
More on this can be found here. The long version is Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888 (1998).
Comment by Kent Scheidegger — March 8, 2007 @ 1:07 pm
Bader calls qualified immunity “settled, well-established”. I must be older than I feel, because I tend to view anything that happened after I graduated college as recent. 42 USC secs. 1981 and 1983 were essentially dead letters until rediscovered by lawyers in the Civil Rights movement during the 1960s. Of course, 1983 couldn’t apply to many state actions until the business of incorporation of the bill of rights into the 14th amendment happened during the 1950s. During the period of massive resistance to Civil Rights, there was no qualified immunity; if there had been, we would still live in a segregated society, for as we have seen, the “every dog gets one bite” theory of qualified immunity has quickly become the “every dog gets one bite in exactly the same place” theory.
After the passage of the civil rights acts of the Johnson Administration, the racist wing of the Democratic party became the conservative wing of the Republican party, to whom Nixon/Agnew pandered, among other ways, by setting up “ballot security” squads, in which Rehnquist earned his spurs. The “impeach Earl Warren” crowd became the “law and order” crowd, with their political goal of “liberating” the police from the twin consequences of federal courts enforcing federal rights: grants of habeas corpus and 1983 lawsuits. This part of the agenda was accomplished through restrictions on standing, limitations on retroactivity, qualified immunity, making inadmissible the subjective motives of state actors, exhaustion requirements, heightened barriers to federal court evidentiary hearings, etc. etc.
From what we read, the politicization of the court only began with Robert Bork, but in fact began with Warren Burger. It is only in its triumphalist mode, where membership in the Federalist Society is the sine qua non of advancement and fealty to the unified executive is the expectation, that the civil rights counterrevolution has begun to be recognized for what it always has been.
Roger Friedman
Comment by r.friedman — March 8, 2007 @ 2:04 pm
Qualified immunity addresses issues not presented by petitions for habeas corpus. Government employees are afforded qualified immunity from damages for conduct which they could not reasonably have known was correct; there is a concern for fairness to employees. There is no comparable concern with a habeas petition; I see no issue of fairness there at all, except fairness to the person wrongfully inarcerated.
Comment by Michael Winger — March 8, 2007 @ 2:38 pm
Respectfully, I believe Mr. Bader’s discussion of (judicially prescribed) qualified immunity misses the point:
AEDPA’s limitation on the source of applicable law to “clearly established Federal law, as determined by the Supreme Court of the U.S.” unconstitutionally denies circuit court precedent of its stare decisis effect. Accordingly, AEDPA’s mandate is an impermissible intrusion by the legislature into the judicial function and violates the doctrine of separation of powers. See, Klein; INS v. Chadha.
Both before and continuing after AEDPA’s enactment, Congress fully vested “[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court” with the power to entertain petitions for writs of habeas corpus.
While Congress may have the power to grant jurisdiction, this power does not include saying what the law is. Furthermore, Congress may not limit the courts to say, independently, what the law is.
As every law student has learned, Marbury v. Madison recognized that the federal judiciary is supreme in its exposition of the Law and that this duty arises from courts’ constitutionally imposed obligation to adjudicate cases within their jurisdiction, first, by determining the law’s meaning, and second, by applying that law to decide cases: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Marbury; accord Cooper v. Aaron.
If AEDPA’s mandate were unquestioningly followed by the courts, it would prevent the judiciary from accomplishing its constitutionally assigned functions. As the ninth circuit pointed out in Pacemaker Diagnostic v. Instromedix (citing Nixon v. Administrator of General Services), “[t]he standard for determining whether there is an improper interference with . . . the independent power of a branch is whether the alteration prevents or substantially impairs performance by the branch of its essential role in the constitutional system. 725 F.2d 537, 544 (9th Cir. 1984) (citing Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977)).
Article III makes clear that, once ordained, the inferior federal courts shall share the judicial power with the U.S. Supreme Court: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Although Congress may have the authority to create and abolish inferior courts and to regulate their jurisdiction, Congress cannot prescribe the judiciary’s decision-making process as to the law’s meaning. See Wright v. West, 505 U.S. 277, 305 (1992) (O’Connor, J., concurring) (“We have always held that federal courts, even on habeas, have an independent obligation to say what the law is.”). To the contrary, it is solely within the province of the Supreme Court to regulate inferior federal courts’ jurisprudence using stare decisis.
The Supreme Court’s recognition of stare decisis as a
“basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion,’” Patterson v. McLean Credit Union, 491 U.S. 164, *172 (1989) (quoting The Federalist, No. 78 (A.Hamilton)),
captures the notion that it is constitutionally impermissible for Congress to encroach upon the judiciary’s role of determining the law’s meaning: “When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. . . . [T]he Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary [Legislative] expectations must be disappointed.” Boerne v. Flores.
Congress cannot fully vest the inferior federal courts with jurisdiction on one hand and then attempt to proscribe the courts from considering cases under the whole body of law. It is unconstitutional for Congress to attempt to deprive the federal courts of appeal of their own jurisprudence and to limit the source of law upon which they may rely: “Once the judicial power is brought to bear by the presentation of a justiciable case or controversy within a statutory grant of jurisdiction, the federal courts’ independent interpretive authority cannot constitutionally be impaired.” Lindh v. Murphy, 96 F.3d 856, 872 (7th Cir. 1996).
To be clear, Congress cannot constitutionally negate, nor impair the precedential effect of federal circuit courts’ prior, independent interpretations. To do so is to impermissibly encroach on the judicial function. See e.g., Klein, 80 U.S. 128, 147 (1871) (ruling “Congress . . . passed the limit which separates the legislative from the judicial power” by forbidding the court from giving the effect to evidence which, in Courts’ own judgment, such evidence should have, instead directing the Court “to give it an effect precisely contrary,” to the Court’s prior precedent, thereby negating its stare decisis effect.).
—AVB
Comment by Andrew Brisker — March 8, 2007 @ 2:42 pm
When a party has already litigated an issue in a court, he has no constitutional right to have that issue considered de novo in another court. The First Congress established a general rule of giving full faith and credit to the judgments of state courts, and the constitutionality of that act has never been seriously in doubt. Habeas corpus is an exception to full faith and credit only because Congress has made it so, and Congress can limit the scope of that exception to clearly wrong decisions of state courts.
Regarding Judge Easterbrook’s opinion in Lindh (reversed on other grounds by the Supreme Court), the very next sentence after the one Andrew quotes rejects the Article III argument.
Comment by Kent Scheidegger — March 8, 2007 @ 5:37 pm
Oops, should have said “could not reasonably have known was incorrect” (or better, “unlawful”.)
Comment by Michael Winger — March 8, 2007 @ 6:10 pm
Lindh upheld the constitutionality of AEDPA’s deference provision, as I should have made clearer, by interpreting it as a limitation on relief: “Section 2254(d)(1) as we read it does no more than regulate relief.” 96 F.3d 856, 870 (7th Cir. 1996). To support his position that limitations on remedies are, indeed, constitutional, Judge Easterbrook offers the Teague doctrine and qualified immunity as examples in which courts have been precluded from granting relief despite constitutional violations. However, as Judge Ripple emphasizes in his dissent, these doctrines fail to affect essential “law declaring function[s] or adjudicatory function[s] of the federal courts.” Lindh at 889.
Here, in contrast, limiting relief, inter alia, limits the federal judiciary’s power to effectuate decisions.
As the Supreme Court in Gordon v. United States explained,
“The award of execution is . . . an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this Court, in the exercise of its appellate jurisdiction; yet it is the whole power that the Court is allowed to exercise . . .” 69 U.S. 561, 561 (1864).
Thus, the function of the judiciary is to determine not only the meaning of the law, but to apply the law to decide disputes which come before it: “[T]he Framers crafted . . . [Article III] with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them.” Plaut v. Spendthrift Farm, 514 U.S. 211, 218-219 (1995). “If the essential, constitutional role of the judiciary is to be maintained, there must be both the appearance and the reality of control by Article III judges over the interpretation, declaration, and application of federal law.” Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir. 1984) (citing Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76-81 (1982)).
Allowing Article III courts to determine whether or not there has been a violation of federal law, but precluding a remedy when state court decisions are not objectively unreasonable, precludes the judicial power of Article III courts from having any effect. Furthermore, allowing incorrect state determinations of federal law denies the effect of U.S. Supreme Court precedent, promotes non-uniform law, and eviscerates the essential function of Article III courts to maintain federal law’s supremacy.
—AVB
Comment by Andrew Brisker — March 8, 2007 @ 9:32 pm
Kent –
Of course there’s a right to relitigate an issue de novo, that’s the theory of dual sovereignty. I can indict and try you for drug possession in state court and then turn around and do it again in federal court.
Habeas corpus is not an exception to full faith and credit. It is an inherent power of the judicial branch, which Congress cannot limit under the Suspension Clause, and which the Executive can ignore only by failing to see that the laws are truly executed. If Congress repealed every jurisdictional enactment, habeas jurisdiction would still exist, just like the power to try suits between states.
By reposing the power to hear habeas corpus in the district courts, Congress provided an alternative path for obtaining federal review of federal claims. Could Congress apply the AEDPA rules of decision to cases before the Supreme Court on cert to a state surpreme court? Probably, but only at the cost of seeing the Supreme Court issue original habeas writs directed at state custodians. Could Congress apply the AEDPA rules of decision to original habeas? No way. Federal habeas corpus is an instrument of the supremacy clause for protecting federal rights.
Roger Friedman
Comment by r.friedman — March 8, 2007 @ 9:45 pm
Roger, the Suspension Clause guarantees the writ as known to the common law. Are you under the misimpression that included use of the writ to collaterally attack felony convictions entered by courts of competent jurisdiction? That canard has been refuted so many times over so many years it no longer requires discussion, but it’s in the law review cited earlier, if you’re interested.
Comment by Kent Scheidegger — March 9, 2007 @ 10:50 am
Andrew, all the arguments you cite were before the Supreme Court in Williams v. Taylor, in the form of a “constitutional doubt” argument on the statutory construction point. The fact that the Court went ahead with the correct interpretation of the statute anyway is an implied rejection of the argument.
Comment by Kent Scheidegger — March 9, 2007 @ 10:54 am
Andrew,
Federal law does, of course, take precedence over state law. But it does not follow, as you seem to suggest, that federal courts take precedence over state courts. The latter are just as capable as the former in adjudicating issues of federal law. Once a criminal conviction has been upheld in the state courts (with the possibility of review in the U.S. Supreme Court), it is no more an affront to federal courts’ habeas powers to limit their authority to overturn that conviction than it is to limit their authority to overturn a fully-appealed federal court conviction.
Comment by Richard Samp — March 9, 2007 @ 12:07 pm
“The fact that the Court went ahead with the correct interpretation of the statute anyway is an implied rejection of the argument.”
OK, so then that implied rejection would be “clearly established” federal law that District Courts could properly rely on under the actual explicit holding of Williams, which limits them to applying clearly established SCOTUS law in the area?
A bit circular, no? What is the effect of dicta appearing to respond to a declined cert question in an opinion that limits lower courts from responding to dicta generally? The Ninth Circuit gets reversed for relying on implications in SCOTUS habeus opinions all the time.
But of course, if Reinhart would just step into line with the Court and limit rights based on anticipated or implied SCOTUS positions then they would stop reversing him, right?
Comment by Corey Johanningmeier — March 19, 2007 @ 11:43 am