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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.).