Rachel E. Barkow, Institutional Design And The Policing Of Prosecutors: Lessons From Administrative Law, 61 Stan. L. Rev. 869 (2009).
Federal prosecutors wield enormous power. They have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges. There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion. As a result, in the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the 95% of cases that are not tried before a federal judge or jury. In a government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. They have the authority to take away liberty, yet they are often the final judges in their own cases. One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Although scholars have made persuasive cases for greater external controls on prosecutors, these calls for reform are unrealistic in the current political climate. The solution must be sought elsewhere.
This Article looks within the prosecutor’s office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors’ offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. The problems posed by federal prosecutors’ combination of adjudicative and enforcement functions are the very same issues raised by the administrative state—and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law would not only be effective, it would also be more politically viable than the leading alternative proposals for curbing prosecutorial discretion.
Administrative law values are not inevitably good, but they are often good.
Attention all law students: Why all lawyers - even criminal law types - need to understand administrative law. It’s not just me saying it.
Tragically, half of the law students in the US graduate without taking Administrative law, which is rarely a required course. Many, many of them are sorry later.
Of the courses I teach, it’s Administrative Law that students most frequently come back years later and thank me for.
Yes, it’s a very hard subject. Yes, it’s not on the bar exam. But you need it.
Administrative Law is rarely oversubscribed in any law school. Sign up now.
Spotted via Kos, Effect Measure : Bush administration is protecting privacy and constitutional rights — of tomatoes.
The headline is actually slightly unfair, at least as to the constitutional rights part, but it’s still funny.
There I was getting all excited by this teaser link at Brian Leiter’s blog, “How the APA Stole Christmas”.
Someone writing about the Administrative Procedure Act? In the holidays? What fun!
But no, it’s about the American Philosophical Association job fair. Which, incidentally, sounds much worse than the AALS’s version.
Further to my musings on constitutional limits on “acting” officials, a self-professed “Very Unimportant Government Lawyer With Nothing Better To Do” draws my attention to 5 USC 3346, which imposes a statutory limit of 210 days or so in which an official can be “acting” in the absence of a nomination to a post.
The statute doesn’t explain who takes over if the 210+ day period lapses — I presume it’s the next in line for the job, (unless the President designates someone else).
(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office -
(1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.
(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.
(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve -
(A) until the second nomination is confirmed; or (B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.
(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.
Hard-core separation of powers dorks will want to take a look at Doolin Security Savings Bank v. Office of Thrift Supervision 139 F.3d 203 & 156 F.3d 190, wherein among other fascinating things, a diverse panel of the DC Circuit agrees unanimously that the head of the Office of Thrift Supervision is an “Officer of the United States” and that the 210 day clock starts when an acting person starts in on his job and not when the vacancy occurs.
(Adlaw mavens may be startled at the discussion of harmless error in a separation of powers case. I was.)
Say hello to the Administrative Law Prof Blog, edited by Drury Stevenson (South Texas) & Cynthia Quinn (Hawaii).
The perfect topic for a blog IMHO, but very very hard to pull off.
Judge Posner’s decision in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007), which I mentioned yesterday has an interesting twist.
It’s one of the great fetishes of US law that triers of fact, be they juries, judges, or administrative officials (including ALJs and Immigration Judges), deserve deference for their credibility determinations as they saw the live witness and the reviewer of the cold record did not. We don’t question jury determinations — they’re a black box, and juries are not called upon to give reasons for their decisions as to who to believe. The same is not true, however, of either judges or administrators. We expect them to issue reasoned opinions, and call foul when they fail to and when the reasons they give fail to hold water.
Indeed, one of the puzzles of administrative law is the so-called Universal Camera problem — suppose that an initial trier of fact reached one decision on the evidence but that the higher-ups in the agency appeals process reached an opposite conclusion. When the matter goes to the court of appeals, what weight should the court put on the trier’s views? The issue implicates two competing values in administrative law: on the one hand the great deference to the front-line assessment of credibility, on the other hand the command in the Administrative Procedure Act that the agency, in deciding a matter, has full power to determine it (i.e. that its hands are not tied by lower-level officials). It’s very hard for both of these to be true at once: if we give weight to demeanor then the front-line official has de facto power to limit the decisions of his/her bosses. If on the other hand we don’t give any extra credence to the factual findings of the person who actually received the evidence, we’ve undermined an ancient principle of Anglo-American jurisprudence. We square that circle by saying that the trier’s decision is part of the record that binds the agency. So it’s free to make any decision, but its decision must be based on the record. The trier, we say only somewhat convincingly, hasn’t bound the agency, he’s just made part of the record.
Comes now Judge Posner in Apouviepseakoda to ask a really good question about credibility determinations by administrative agencies (and implicitly also by judges, although not juries):The fact that she was testifying through an interpreter has a significance that my colleagues do not appreciate when they say that “The IJ spent 6 hours in a hearingroom, face to face, with Ms. Apouviepseakoda. We have never met her.” I take this to be an allusion to the common though not necessarily correct belief that being present when a witness testifies greatly assists a judge or juror in determining whether the witness is telling the truth. Even if so in general, it cannot be so when the witness is a foreigner testifying through an interpreter, especially if the judge cannot even hear the foreigner, but only the interpreter. Reading the facial expressions or body language of a foreigner for signs of lying is not a skill that either we or Judge Brahos possess.The concern that demeanor evidence is less probative — or is being judged by people who are not properly trained to assess it — when testimony is rendered through an interpreter, is one that Judge Posner has raised before, notably in Djouma v. Gonzales, 429 F.3d 685, 687-88 (7th Cir. 2005), and more thoroughly in Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005), where speaking for the court, Judge Posner wrote:
We understand the dilemma facing immigration judges in asylum cases. The applicant for asylum normally bases his claim almost entirely on his own testimony, and it is extremely difficult for the judge to determine whether the testimony is accurate. Often it is given through a translator, and even if the applicant testifies in English, as a foreigner his demeanor will be difficult for the immigration judge to “read” as an aid to determining the applicant’s credibility. Unfortunately, the Department of Homeland Security and the Justice Department, which share responsibility for processing asylum claims, have, so far as appears, failed to provide the immigration judges and the members of the Board of Immigration Appeals with any systematic guidance on the resolution of credibility issues in these cases. The departments have not conducted studies of patterns of true and false representations made by such applicants, of sources of corroboration and refutation, or of the actual consequences to asylum applicants who are denied asylum and removed to the country that they claim will persecute them. Without such systematic evidence (which the State Department’s country reports on human rights violations, though useful, do not provide), immigration judges are likely to continue grasping at straws—minor contradictions that prove nothing, absence of documents that may in fact be unavailable in the applicant’s country or to an asylum applicant, and patterns of behavior that would indeed be anomalous in the conditions prevailing in the United States but may not be in Third World countries—in an effort to avoid giving all asylum applicants a free pass. The departments seem committed to case by case adjudication in circumstances in which a lack of background knowledge denies the adjudicators the cultural competence required to make reliable determinations of credibility.
We close by noting six disturbing features of the handling of this case that bulk large in the immigration cases that we are seeing:
…
4. Insensitivity to the possibility of misunderstandings caused by the use of translators of difficult languages such as Chinese, and relatedly, insensitivity to the difficulty of basing a determination of credibility on the demeanor of a person from a culture remote from the American, such as the Chinese. E.g., Lin v. Ashcroft, 385 F.3d 748, 756 n. 1 (7th Cir.2004); Ememe v. Ashcroft, 358 F.3d 446, 451-53 (7th Cir.2004); Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir.2003); He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.2003); Deborah E. Anker, “Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment,” 19 N.Y.U. Rev. L. & Social Change 433, 505-27 (1992); Neal P. Pfeiffer, “Credibility Findings in INS Asylum Adjudications: A Realistic Assessment,” 23 Tex. Int’l L.J. 139 (1988). Behaviors that in our culture are considered evidence of unreliability, such as refusing to look a person in the eyes when he is talking to you, are in Asian cultures a sign of respect.
This issue of demeanor in translation (and the implications for deference on appeal) seems like an important question. There must be a good student note or two in here somewhere.
As a series of court decisions from around the country have made clear, our immigration courts — the administrative bodies that, among other things, hear asylum applications — are a disgrace. The major cause is underfunding, requiring the Immigration Judges to shoulder huge caseloads and make decisions at a speed that probably makes quality work next to impossible.
But even the pressures of the job don’t excuse the conduct documented in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007). Nor, given that the Seventh Circuit has all the time it wants to reach a decision, does it excuse the majority decision to defer to an arbitrary and capricious decision. Judge Posner’s dissent is far more persuasive than Judge Evans for the majority — although Posner here fails to persuade Judge Easterbrook, who is the third vote.
Posner points up errors of logic, and notes a judicial demeanor from hell, which together suggest that this was not a fair hearing. The best the majority can say is that the decision, although “odd” is not “so deeply flawed” as to be reversible. If we take it at face value, this looks like the rare case which turned on how deferential a reviewing court should be. But one could be forgiven for reading it as showing a great reluctance on the part of some judges to admit just how bad things are in some IJ’s hearing rooms, for to do so would be to open the floodgates to immigration petitions and reversals.
Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978), long one of the perennials of administrative law teaching, is no more. It seems that late last month the First Circuit overruled Seacoast in Dominion Energy Brayton Point, LLC v. Johnson, 2006 U.S. App. Lexis 8205, 2006 WL 820405 (1st Cir., March 30).
Seacost is famous for holding that the words "public hearing" in a statute triggered formal adjudication under sec. 554 of the APA. The idea was that if the issues were sufficiently important, Congress should be understood to have assumed that the agency should use the cumbersome full-dress procedures of an on-the-record adjudication. This was not as strange as it may sound to modern ears, as it followed the influential Attorney General's Manual on the APA.
Other circuits, however, took a different tack, especially after the landmark case of Chevron v. United States. Those courts held that unless Congress explicitly instructed the agency to hold a "formal" hearing (most commonly by saying that the hearing should be "on the record") the agency could in most cases choose to proceed by the less onerous, although still quite formalized, "informal" rulemaking process.
That makes the Ninth Circuit the sole remaining outlier, based on Marathon Oil Co. v. EPA, 564 F.2d 1263 (9th Cir. 1977). That rule is probably doomed too.
The good folks at POGO note that the Dept. of Justice isn't following its own policy strongly suggesting that all agencies provide a link to its Freedom of Information Act (FOIA) request policy on all agency homepages.
Blogged in part because I like all-acronym titles.
Public Knowledge writes:
Public Knowledge is pleased to announce that The U.S. Appeals Court for the D.C. Circuit this morning threw out the Federal Communications Commission’s order establishing the so-called “broadcast flag.” In a unanimous opinion, the court agreed with our argument that the FCC exceeded its authority in creating this broadcast flag scheme. Judge Harry T. Edwards, writing for the court, said: “In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority it now claims.” This was a case that Public Knowledge organized and financed. We’re still looking for help to pay for the case, so please take the opportunity, if you haven’t, contribute to PK or become a member. It’s easy. See here: http://www.publicknowledge.org/membership-drive-200504.
We couldn’t have done it without the help of our co-plaintiffs, Consumers Union, Consumer Federation of America, Electronic Frontier Foundation, American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association and the Special Libraries Association.
I am not making this up. From the Federal Register:
The BLS plans to have email data collection in place in all States in 2004 or in early 2005. At this time, six volunteer States are testing the procedures and software of email data collection. OES is enhancing the State Survey Processing and Management (SPAM) computer system to improve the quality and timeliness of the data. OES will convert to the June 6, 2003, definitions of Metropolitan Statistical Areas by 2005.
NOTICES DEPARTMENT OF LABOR Bureau of Labor Statistics Proposed Collection, Comment Request Friday, February 13, 2004 69 FR 7264-01, 2004 WL 256289 (F.R.) .
Want to bet someone won a round of drinks as to whether s/he could sneak that one by the boss?
Administrative lawyers and policy wonks will be pleased to know that OMB Watch, a very fine bunch, have launched RegWatch, a regulatory policy blog devoted to “quick alerts to the latest news and views about protections of the public interest.” (Thanks Barbara!)
Back in 1912, Congress passed a statute prohibiting the “gag rule” under which Presidents stopped underlings from testifying to Congress. And in the Civil Service Reform Act of 1978, Congress restated that no federal money can be used to pay the salary of any federal employee who “prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the federal government” from communicating with Congress.
Well, the in light of this law the GAO’s Investigators Say Ex-Medicare Chief Should Repay Salary. It seem that the Bush administration illegally withheld data from Congress on the cost of the new Medicare law. Had the data been available, the bill would not have passed.
To keep the info from Congress, Thomas A. Scully illegally threatened to fire the chief Medicare actuary. As a result, he should not have received salary from that point on and must refunde seven months pay.
This is the sort of facts that scream “DC Circuit”… so the inevitable lawsuit will take at least nine months to sort out and probably much more. But Congress’s power of the purse is its core and most plenary power. So I think Mr. Scully better be looking to the Scaife people for some help.
[Thanks to bobcox for the correction]
One of my absolute favorite things about being a law professor is helping students who are writing articles for publication. I don’t mean student notes — working with students writing notes can be fun, but isn’t always, both because the form is very Procrustean and because some of the people who write notes here are just doing it to make Law Review, and don’t intend to make the extra effort needed to have their work published. I mean the students who write a full-scale article. Doing a publishable article is scads more work than doing a regular paper, and usually involves several additional drafts. Most students just don’t have the time or interest. But I get a few who do, maybe one or two a year, and working with them is a particular joy.
Thus, I’m especially pleased to announce that Christine M. Humphrey, a December 2003 graduate of UM Law, has just published her article The Food and Drug Administration’s Import Alerts Appear to be “Misbranded”, 58 Food & Drug L.J. 595 (2003). The FDLI does not put full-text online, but you can expect an online abstracts for 58:4 Real Soon Now, and Ms. Humphrey informs me that her firm will be hosting the text soon (I’ll update this item when it does). Meanwhile, if you have access to Westlaw, you can view the full Westlaw version. Ms. Humphrey did the work on the article while a student here — and a lot of work it was, too as I think she did more than half a dozen drafts for me, at least two after she’d already received her final grade. (The Buckley Amendment does not Allow me to Announce her grAde.)
Although the subject is a little specialized, the article is important. It argues, I think very persuasively, that the FDA is illegally circumventing the Administrative Procedures Act (APA) to issue “Import Alerts” — decisions that effectively bar the importation of whole classes of products but that the agency says are merely “guidance” documents. The article juggles the intricacies of the FDA regulations and the complex underlying APA rules and shows how they are in tension. The issue is sure to be litigated soon unless the FDA cleans up its act.
Army Scraps $39 Billion Helicopter. Which is most amazing?
When I was in law school, I got very interested in military procurement. There are clearly enormous savings waiting to happen, but they are mostly blocked for a toxic combination of political factors. Gary Hart actually tried to do something about this in his finest hour when he was a Senator, as did Barry Goldwater. Senator Grassley occasionally makes a noble attempt. But mostly people have given up fighting the system, because it rolls right over you.
It’s always odd how the loudest defenders of capitalism defend a Soviet-style state planning approach1 to buying weapons. But it’s been going on so long now that no one notices.
1 Update. On reflection this is unfair. Had the Soviets ever cancelled a weapon system, I doubt they would have paid the folks who wasted $7 billion another $2 billion to soften the blow.
The radicals in the Republican Party are morphing the non-partisan civil service into something that more and more resembles the spoils system. This is one of those below-the-radar changes likely to have massive if obscure effects.
The political spoils system has some virtues. It makes accountability clear: no bureaucrats to blame if you can hire and fire them. It may make the bureaucracy more efficient, in that it makes firing the incompetent easier. To the extent that salaries are flexible, it may make hiring and retaining good people easier. The thought of government jobs may encourage more people to work in politics (I think that’s a good; some might call it a bad).
Of course, political hiring and firing has substantial disadvantages too. Good people may be less willing to work in government if they know that they can be fired by an incoming administration even if they’re doing a great job. It encourages featherbedding. Bad people with good political connections can stay in office where in a more merit-based system they might not. Whistle-blowers become an even more threatened species. Generally, politicizing the civil service means rapid turnover when administrations change. That tends to be bad for the quality of government administration: institutional memories are lost, wheels are reinvented, dumb things happen.
Although the Hatch Act of 1887 has been modified at the higher levels by the creation of the Senior Executive Service to permit political appointees somewhat more leeway as to who their top civil servants are, the basic idea of a non-spoils, non-political federal bureaucracy has been the American way for generations. There are also some Supreme Court cases holding political firing of lower-level employees unconstitutional, although I’ve always had my doubts about the correctness of those decisions.
This week’s changes don’t completely undermine the Hatch Act. They don’t make straightforward political hiring legal, but they remove some (but not all) of the existing obstacles to political firing and pay cuts (and pay increases) for about half the civilian workers in government. They’ll probably lessen the power of government unions.
Unless there’s some sort of immediate institutional bloodletting, which I think highly unlikely, it may take years to see the full effects of this one, be it good or ill.
On March 1, 2003, the Immigration and Naturalization Service became part of the U.S. Department of Homeland Security and its functions were divided into various bureaus of that department. There’s the Bureau of Citizenship and Immigration Services. Services mind you. And there’s the U.S. Immigration and Customs Enforcement (ICE). But underneath the new coat of paint, it’s still the same loathsome and arbitrary bureaucracy. Read those two links and gnash your teeth.
Or maybe (here’s a horrible thought), now that it’s got that Homeland Security vibe, it’s getting worse.
To be the nation’s preeminent law enforcement agency, dedicated to detecting vulnerabilities and preventing violations that threaten national security. Established to combat the criminal and national security threats emergent in a post 9/11 environment, ICE combines a new investigative approach with new resources to provide unparalleled investigation, interdiction, and security services to the public and to our law enforcement partners in the federal and local sectors.ICE Core Values
Integrity
We will adhere to the highest standards of honesty and conduct.
Courage
We will be accountable for our actions; we will do the right thing even when it is not the easy thing; and we will always fulfill our duties with courage.
Excellence
We will strive for excellence in all things, aspiring to the highest standards of performance, professionalism, and leadership.
Yah, right.
The 10th Circuit has just issued an order reviving the do-not-call list. I have to go teach a class, but I’ll try to write up something about it late tonight.
Turn your back for a minute, and everything changes. While I was teaching a class and eating dinner news broke that a second district court has struck down the do-not-call list, this time on First Amendment grounds.
Having quickly read this new decision by U.S. District Judge Edward Nottingham of the Colorado District Court in Denver striking down the do-not-call list, Mainstream Marketing Services v. FTC, I think that there are grounds to believe that, despite being decided on First Amendment grounds, this decision either will not affect the new congressionally mandated plan and/or will be reversed on appeal. I teach a lot of varied things, but First Amendment law is not one of them. So I’m offering these tentative thoughts as a sort of rough draft. If on reflection I change my mind, I may rewrite parts of this, and indicate where I made changes.
There is a grey area in the law here, and this decision wallows in it. But before getting to the hard stuff, there’s the question of whether this decision is valid at all — arguably it was moot at the time it was issued, since the FTC’s plan had already been struck down (on a different theory) by Judge Lee R. West in Oklahoma. Alas, even if that’s right, it doesn’t really matter, since someone can file a new case as soon as the new congressional legislation (quoted below) is signed into law. (I also leave for a legislative expert whether the trivial wording differences between the House and Senate versions will require any adjustment before a bill goes to the White House for the occupant’s signature.)
To follow what’s coming, keep one distinction in mind: viewpoint discrimination is when the government favors one side in an argument. Content discrimination is when the government tries to take a subject, or a type of speech, off the table entirely. Viewpoint discrimination is a First Amendment deal breaker in all but the most unusual circumstances, usually involving conduct as well as speech. The law on content discrimination is murkier. It’s clear that to the extent content discrimination amounts to viewpoint discrimination, it’s forbidden. After that, it gets complex. Or, as Robert Post put it in Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1265 (1995), “Whatever the ultimate merits of a First Amendment focus on content neutrality, the Court’s doctrinal elaboration of [the doctrine that restrictions on speech must be justified without reference to the content of the regulated speech] has been haphazard, internally incoherent, and for these reasons inconsistent with any possible principled concern for content neutrality.”
Judge Nottingham’s decision turns on his finding that the FTC’s decision to ban commercial telemarketers but not non-commercial charitable solicitations is impermissible content discrimination as it favors the content (note—content, not viewpoint) of non-commercial speakers over commercial ones. And that, the Judge held, is no go.
The Judge based this ruling on R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), which states that “[c]ontent- based regulations are presumptively invalid.” Similarly, in Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994), the Supreme Court stated that “[o]ur precedents … apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” But, “regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny … because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.”
Some academics, including Dean Kathleen M. Sullivan, have criticized this approach for encouraging legislatures to ban whole classes of speech for fear of engaging in content discrimination.
In fact, the Supreme Court has not been quite that categoric. In R.A.V. the Court said that legislatures may sometime pick and choose if they have a good reason. Thus, for example, “a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection) is in its view greater there.” And,
“[a]nother valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects’ of the speech, so that the regulation is ‘justified without reference to the content of the … speech.’ A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.These bases for distinction refute the proposition that the selectivity of the restriction is “even arguably ‘conditioned upon the sovereign’s agreement with what a speaker may intend to say.’ ” There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue) it may not even be necessary to identify any particular “neutral” basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that would stand in the way of a State’s prohibiting only those obscene motion pictures with blue-eyed actresses.) Save for that limitation, the regulation of “fighting words,” like the regulation of noisy speech, may address some offensive instances and leave other, equally offensive, instances alone. [FN6: …we readily concede: that presumptive invalidity does not mean invariable invalidity, leaving room for such exceptions as reasonable and viewpoint-neutral content-based discrimination in nonpublic forums…]
Got that? The state can selectively ban some types of content, but only for good cause. The FTC found that commercial sales calls were 40-60% [is that all, ed?] of the call volume. It exempted non-commercial pitches because it thought that these messages had a greater First Amendment protection than commercial speech. Judge Nottinigham, however, held that in this context all the calls had some First Amendment protection, and also held that the FTC had failed to demonstrate any good cause for treating non-commercial requests for donations more kindly than sales pitches. The agency did not, for example, provide evidence that fraudulent sales calls were more likely than fraudulent pitches for fake charities. And, as far as the record revealed, he said, both are equally disturbing at dinner time.
It seems to me that a higher court would have at least three ways it could reverse this decision. First, it could read the passages from R.A.V. quoted above to find the authority to ban sales calls as a reasonable exercise of the authority to exercise “selectivity (where totally proscribable speech is at issue)” because “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” This decision would stress the existence of alternate channels of communications for ads—TV, radio, spam, junk mail. Comfort might also be found in the recent Watchtower Society v. Village of Stratton in which the Supreme Court apparently assumed, but didn’t hold, that door-to-door religious solicitation was entitled to a higher degree of First Amendment protection than might be available for salespersons.
A second approach would be to say that common sense suggests that sales calls are in fact more likely to pose a risk of fraud, or really are more disturbing at dinner time, and that justifies the distinction. This is less likely, as it isn’t usually possible to justify an agency’s decision based on something that was not on the record at the time the agency made the decision. On the other hand, if tomorrow’s edition of the Congressional Record were to show that the legislative history of today’s bills indicated that Congress believed that was the case then that might give the court of appeals all the excuse it needed. Or, better yet, if the matter goes to conference maybe upon re-passing the bills the sponsors or conferees could cook up some legislative history or additional congressional findings real quick.
A third approach would be to yet again try to untangle content discrimination jurisprudence, a task that would probably require a trip to the Supreme Court.
Whatever the route, though, the equities on this one are pretty strong, and I think a reversal is likely on one theory or another.
To ratify the authority of the Federal Trade Commission to establish a do-not-call registry. (Introduced in House)
To ratify the authority of the Federal Trade Commission to establish a do-not-call registry. (Introduced in House)
HR 3161 IH
108th CONGRESS
1st Session
H. R. 3161
To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.IN THE HOUSE OF REPRESENTATIVES
September 24, 2003
Mr. TAUZIN (for himself, Mr. DINGELL, Mr. UPTON, and Mr. MARKEY) introduced the following bill; which was referred to the Committee on Energy and Commerce
A BILL
To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. NATIONAL DO-NOT-CALL REGISTRY.
(a) AUTHORITY- The Federal Trade Commission is authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to implement and enforce a national do-not-call registry.
(b) RATIFICATION- The do-not-call registry provision of the Telemarketing Sales Rule (16 C.F.R. 310.4(b)(1)(iii)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.
And,
S 1652 IS
108th CONGRESS
1st Session
S. 1652To ratify the do-not-call registry provision of the Telemarketing Sales Rule, as amended by the Federal Trade Commission, effective March 31, 2003.
IN THE SENATE OF THE UNITED STATES
September 24, 2003
Mrs. FEINSTEIN (for herself, Mr. DEWINE, Mr. LEAHY, Mr. KOHL, Mr. SCHUMER, Mr. FEINGOLD, Mr. HARKIN, Mr. LEVIN, Mr. LAUTENBERG, Mr. VOINOVICH, and Mr. PRYOR) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
A BILL
To ratify the do-not-call registry provision of the Telemarketing Sales Rule, as amended by the Federal Trade Commission, effective March 31, 2003.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. NATIONAL DO-NOT-CALL REGISTRY.
(a) FINDING- Congress finds that the Federal Trade Commission was authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to compile and implement a national do-not-call registry.
(b) RATIFICATION- The do-not-call registry provision of the Telemarketing Sales Rule (16 CFR 310.4(b)(1)(iii)(B)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.
Just a day after a district court judge ruled that the FTC exceeded its authority when it set up a national do-not-call list both houses of Congress have voted to give the FTC authority to establish the do-not-call registry. This is how the system is supposed to work, but so rarely does.
I’ve read the judge’s decision in US Security v. FTC, and I think it was defensible. There are two key moves in the case, both arguable, but neither obviously wrong.
The first key move is to say that because regulatory authority was shared between two agencies, the FTC isn’t entitled to the Chevron deference an agency usually gets when interpreting a statute, and that when viewed in this cold light the FTC’s authority to ban “deceptive…and other abusive telemarketing acts or practices” wasn’t intended by Congress (in 1994) to mean banning telemarketing outright, especially as the do-not-call list is run by the FCC not the FTC.
The second move, more dubious in principle, but perhaps compelled by Supreme Court precedent, was that Congress’s authorization—in the Consolidated Appropriations Resolution passed last March—of expenditures by the FTC “to implement the do-not-call provisions of the Telemarketing Sales Rule” was insufficient evidence of Congressional ratification of the FTC’s plan. The district court relied on Ex parte Endo, a 1944 Supreme Court decision which (in the process of ruling that US citizens of Japanese origin held in detention camps must be released forthwith) held that if Congress is to be found to have ratified by appropriation any part of the program of an executive agency, the bill doing so must include a specific item referring to that portion of the program. And that, the judge in US Security v. FTC held reasonably, if perhaps debatably, was not the case.
Endo, incidentally, was recently discussed in a brilliant article by my colleague Patrick Gudridge called Remember Endo?, 116 Harv. L. Rev. 1933 (2003). The article is currently online, alas, only at Lexis and Westlaw .
In any event, if Congressional intent wasn’t clear last week, it is clear today. The House voted 412-8 to give the FTC the authority, and the Senate vote was 95-0. Works for me.
Update: Hours after I wrote this, along comes a second district court decision striking down the do-not-call list on First Amendment grounds. I have some preliminary thoughts about that one.