A vigorous constitutional debate on AEDPA

By Lyle Denniston
on Jul 13, 2005 at 4:19 pm

(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.