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Commentary: Cameras and inter-branch comity

The blogosphere has been treated in recent days to a group of law professors of varying ideological preferences pronouncing it within Congress’ constitutional powers (some even said “well within”) to compel the Supreme Court to allow television coverage of oral arguments. Despite diligent searching, none of those academics has located a precedent that settles the matter, although a few cases have been mentioned suggestively. There is a brand-new lower court precedent, though, that makes the point that inter-branch modesty remains a virtue — that is, there is a public good in avoiding meddling in another branch’s inner workings.

The ruling came in Public Citizen v. U.S. District Court, released on Tuesday by the D.C. Circuit Court in Washington (docket 06-5232). It has to do with the avoidance of judicial meddline with legislative prerogative, and thus is not directly on point in the current debate about Congress’ power to tell the Justices how to run their public sessions. But there is a constitutional principle here, and that may well have some relevance.

The Public Citizen case is a celebrated lawsuit about the two houses of Congress having passed differing versions of a bill, but with leaders of the House and Senate thereafter officially certifying that they both passed exacly the same measure. The constitutional question raised by Public Citizen was whether the courts may look behind that official declaration, and judge for themselves whether the bills enacted were identical and, therefore, properly passed.

The D.C. Circuit, like a District Court before it, found that the question had long been settled — by the Supreme Court’s decision in 1892 in Marshall Field & Co. v. Clark. As that precedent was described by the D.C. Circuit, “the Court held that the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that [a bill] was passed by Congress….Under Marshall Field, a bill signed by the leaders of the House and Senate — an attested ‘enrolled bill’ — establishes that Congress passed the text included therein…and it should be deemed complete and unimpeachable.”

The bill in question was a budget measure, the Deficit Reduction Act of 2005. It was a wide-ranging act, but Public Citizen was displeased with one part of it: an increase in the filing fee for federal civil lawsuits to $350, a difference of $100. Public Citizen is a frequent litigator, and it mounted a constitutional challenge to scuttle the whole law, and with it, of course, the fee increase. The defect that its lawsuit challenged was a provision that set a 13-month duration for Medicare payments for some kinds of medical equipment.

The Senate version of the bill showed a 36-month duration even though the Senate in fact had only adopted a 13-month span. The House approved the bill with the 36-month provision in it. The bill returned to the Senate and an aide there, discovering the mistake, changed the final bill to read 13 months. As the D.C. Circuit put it, “Thus, since the 13-month duration term in the enrolled bill passed the Senate but not the House, the President signed legislation that did not actually pass both houses of Congress in precisely the same form.”

The leaders of the two chambers had signed off on the “enrolled bill” with the 13-month provision in it, and that, the D.C. Circuit, was the last word; it makes no difference what other congressional documents might show, and it makes no difference what constitutional provisions Public Citizen tried to deploy to kill the legislation. “Where such an attested enrolled bill exists,” said the panel, “Marshall Field requires ‘ the judicial department to act upon that assurance, and to accept [the bill] as having passed Congress.’ ”

The opinion is full of remarks by the panel about the need for the courts to avoid “inquiries into the inernal governance of Congress,” and the need to defer “to the reasonable procedures Congress has ordained for its internal business” — at least in the absence of an explicit constitutional direction to the contrary.

“,,,today, no less than in 1892,” the D.C. Circuit concluded, “the spectacle of courts directing legislative authentication procedures and otherwise meddling in the inner workings of Congress ‘disregards that coequal position…of the three branches of government.’ ”

It is absolutely clear that the Justices — or at least a majority of those now sitting — have concluded that the question of televising oral arguments is decidedly a matter of “the inner workings” of the Court, and that there is now no disposition to change it; to some of them, indeed, havng their proceedings on TV would have an “insidious effect” on the Court’s proceedings.. Whether the ranking member of the Senate Judiciary Committee is prepared to defer to that judgment, though, is another question. That lawmaker, Pennsylvania Republican Arlen Specter, harbors grievances about the Court’s recent habit of striking down federal legislation, and appears to see his cameras-in-the-Court bill as a proper retaliatory gesture.

The debate over his legislation, then, may actually not be one over constitutional authority, after all, but rather is all about civic manners.