Amicus Curiae Brief — Legal Services Corp. v. Velazquez
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Supreme Court of the Gniten sift,’ a0
October Term, 2000
CLERK
LEGAL SERVICES CORPORATION,
Petitioner,
and
UNITED STATES OF AMERICA,
Petitioner,
Vv.
CARMEN VELAZQUEZ ET AL.,
Respondents.
ON WRITS OF CERTIORARI TO THE COURT OF
APPEALS FOR THE SECOND CIRCUIT
EEE — eee
BRIEF FOR THE AMERICAN JUDICATURE SOCIETY AS
AMICUS CURIAE IN SUPPORT OF RESPONDENTS
——————— eee
FREDERICK A. O. SCHWARZ, JR.
Counsel of Record
JEAN REED HAYNES ALEXANDRA S. WALD
PRESIDENT CRAVATH, SWAINE & MOORE
AMERICAN JUDICATURE Worldwide Plaza
SOCIETY 825 Eighth Avenue
180 North Michigan Avenue New York, New York 10019
Suite 600 (212) 474-1000
Chicago, Illinois 60601
(312) 558-6900 Attorneys for Amicus Curiae
July 17, 2000
TABLE OF CONTENTS
Page
TABLE OF AUTEOORITIES 2.0... ccccccccnccces iii
STATEMENT OF INTEREST ................4.. l
STATEMENT OF THE CASE ..............002. 2
SUMMARY OF ARGUMENT .................. 2
EE 6504 6s Lawes chee stake Gekada non 6
I. AS CONSTRUED BY THE GOVERNMENT,
THE CONSTRAINTS PLACED ON THE
ADVERSARIAL PROCESS IN WELFARE
CASES RESULT IN AN
UNCONSTITUTIONAL INTRUSION ON THE
SEPARATE POWERS OF THE JUDICIAL
ET ES eee re TTT Tere Tee eee 6
A. The Constitution Prohibits the Political
Departments from Acting to Prevent, or to
Inhibit, Article III Courts from Exercising
Their Province and Duty to Say What the
DOE ehicaddeweskUekbeeaneanseacea 6
B. The Rider Would Distort and Prevent the
Effective Functioning of the Adversary
System and Undermine the Ability of Courts
to Exercise Their Province and Duty to Say
WINE 4.54 0h 040k windceweuess 9
1. By Skewing the Adversary Process and
Forcing Courts to Decide Cases with a
Hamstrung Advocate on One Side,
Congress Violates the Separation of
EE Suck wae ee bbs heeS ook 0K 64:0 11
Page
2. Interpreting the Appropriations Rider to
Preclude or Inhibit Argument of
Constitutional and Statutory Issues
Prevents Courts from Performing Their
Actin TE UE, 6 akg bh oss ce des 15
0. APPLICATION OF THE GOVERNMENT’S
CONSTRUCTION TO CASES IN THE STATE
COURTS WOULD ALSO VIOLATE
PRINCIPLES OF FEDERALISM ........... 18
fl. THE APPROPRIATIONS RIDER SHOULD
NOT BE INTERPRETED TO BAR LEGAL
SERVICES LAWYERS FROM CLAIMING--
OR EVEN ARGUING--THAT A
PARTICULAR WELFARE RULE,
REGULATION, OR PROVISION IN A
WELFARE STATUTE IS
UNCONSTITUTIONAL OR CONTRARY TO
STATUEGGAS GHEE 65:6 eA ceo ener vb dee ces 19
A. The Government’s Interpretation Is Wrong. . 20
B. Under the Principles Set Forth by This Court
in Ashwander and Related Cases, the
Interpretation Given to the Appropriations
Rider by the Government Should Be
Pe re er ere eee 26
CUINCTARBUIN 00 0 céskcadunsienuse vaseveenees 29
TABLE OF AUTHORITIES
Cases
Aetna Life Ins. Co. v. Haworth, 300 U.S.
ire kis oo o'x wien ow Eo bx acd a>
Alden v. Maine, 119 S. Ct. 2240 (1999) ...
American Trucking Assocs., Inc. v. EPA, 195
eo Se
Ashwander v. TVA, 297 U.S. 288 (1936)
Bounds v. Smith, 430 U.S. 817 (1977) .....
Brotherhood of R.R. Trainmen v. Virginia,
oo Gee ae ee
CFTC v. Schor, 478 U.S. 833 (1986) ......
Chevron v. NRDC, Inc., 467 U.S. 837
RES TA ier er
Chandler v. Judicial Council of the Tenth
Circuit, 398 U.S. 74 (1970) ...........
City of Boerne v. Flores, 521 U.S. 507
ee ee a gait eer Uy iy b 4k. o 6.8
Rae ae
Commerce Bank of Kansas City, N.A. v.
Missouri Div. of Finance, 762 S.W.2d 431
a ba Wik oh ba 680 os
Commonwealth of Pennsylvania v. Brown,
260 F. Supp. 323 (E.D. Pa. 1966) ......
Crowell v. Benson, 285 U.S. 22 (1932) ....
Dickerson v. United States, No. 99-5525,
2000 WL 807223 (S.Ct., June 26, 2000) .
Page(s)
passim
iv
Page(s)
Flast v. Cohen, 392 U.S. 83 (1968) ....... 14
Gomez v. United States, 490 U.S. 858
Lape RST ae at re ere en ee 26
Gregory v. Ashcroft, 501 U.S. 452 (1991) .. 19
Gutierrez de Martinez v. Lamagno, 515 U.S.
ETN 56 ode SOR RS a 16
INS v. Chadha, 462 U.S. 919 (1983) ..... 7
Janklow v. Planned Parenthood, 517 U.S.
REPRE vi S45 haa ta ee Reka en 11
Keyishian v. Board of Regents, 385 U.S. 589
TREE Tha ke cass eek OREO 12
Lockhart v. Fretwell, 506 U.S. 364 (1993) . 18
Loving v. United States, 517 U.S. 748 |
Se seh canta uke aun cies keadsne an 16, 17
Marbury v. Madison, 5 U.S. (1 Cranch)
og | a ee ee er ee ee passim
Muskrat v. United States, 219 U.S. 346
DNGE ce k ek Pics Ae ak ak 14
NEA v. Finley, 524 U.S. 569 (1998) ...... 10
O’Shea v. Littleton, 414 U.S. 488 (1974) .. 9,14
Papachristou v. City of Jacksonville, 405
A SEE 6 SHAS aha eea 17
Pittston Coal Group v. Sebben, 488 U.S. 105
PE cv Guanes akee ee eceke wees Kae 25
Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833
Ree ane ere eee, re ter 10, 17
Plaut v. Spendthrift Farm, Inc., 514 U.S.
DOU CE 6h b4k 4s ee deere
Rose v. Mitchell, 443 U.S. 545 (1979) .....
Rust v. Sullivan, 500 U.S. 173 (1991) .....
Sanzone v. Board of Police, 592 A.24 912
CRM, ED 6 anc Nk 4 eeu ce oe eases
Schlesinger v. Reservists Comm. to Stop
the War, 418 U.S. 208 (1974) .........
Speiser v. Randall, 357 U.S. 513 (1958) ...
State ex rel. Browne v. Hechler, 476 N.E. 2d
EEO: COE % 0c ba KKK Ra
Steffel v. Thompson, 415 U.S. 452 (1974) ..
United States v. Johnson, 319 U.S. 302
SEE sc. a Wat wkeuee ok cece
TVA v. Hill, 437 U.S. 153 (1978) ........
United States v. Klein, 80 U.S. (13 Wall.)
SP CUTER 555540405 Cl Aaa e ees
United States v. National Treasury
Employees Union, 513 U.S. 454 (1995) ..
United States v. New York Tel. Co., 434 U.S.
Rae COPED 4.64404 408 nea
United States v. Sioux Nation, 448 U.S. 371
Ge 0:2 ck dae aba eee eee
Velazquez v. Legal Servs. Corp., 164 F.3d
Fat ee i ED kha Ede kom vckakes
Vimar Seguros y Reaseguros, S.A. v. M.V Sky
Reefer, 515 U.S. 528 (1995) ..........
Page(s)
6, 7,8
Watt v. Alaska, 451 U.S. 259 (1981) ......
Webster v. Doe, 486 U.S. 592 (1988) .....
Weinberger v. Salfi, 422 U.S. 749 (1975) ..
Yakus v. United States, 321 U.S. 414
i: rr i era heres
UNITED STATES CONSTITUTION
US. OO, AME via scek tees
Ve CE, FR BE a nk oe esas cerns
US. GE A dines ia
US, CE: PR Fe ook as ch eeeeeeseeans
Ce. Se SOE. Bas ee ccs conse
STATUTES
Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No.
166-194, 1 SE TSSS vk kid cid nes cces
Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L.
No. 104-134, § 503(3)(b), 110 Stat. 1321,
Laeee ik coe eae ee eee
Omnibus Consolid ted Rescissions and
Appropriations Act of 1996, Pub. L.
No. 104-134, § 504(a)(16), 110 Stat. 1321,
TIRING 60 6k kee ie ee ee a
Legal Services Corporation Act of 1974, 42
USL. Saree kkk ee aes
2
passim
18
4, 6, 27, 29
20
25
passim
}
|
|
42 U.S.C. §2996f(a)\(1) ...... 00.0 e cee 5
42 USC, §29090G) ..........000005%. 5
62 Fed. Reg. 30765-67 (June 5, 1997)
(codified at 45 C.F.R. Pt. 1639) ........ 3
OTHER AUTHORITIES
73 Am. Jur. 2d Statutes § 318 (1974) .....
The Federalist Papers (Clinton Rossiter
es SUE Suk eee eee es
Henry M. Hart, “The Power of Congress to
Limit the Jurisdiction of Federal Courts:
An Exercise in Dialectic”, 66 Harv. L.
AL, | a ee
Oliver Wendell Holmes, The Common Law
(Mark DeWolfe Howe ed., 1963).......
James S. Liebman & William R. Ryan,
“Some Effectual Power’: the Quantity
and Quality of Decisionmaking Required
of Article III Courts”, 98 Colum. L.
eg | Pere errr errr tree
Martin H. Redish, “Federal Judicial
Independence: Constitutional and Political
Perspectives”, 46 Mercer L. Rev. 697
COU a6 ead whee a eR KOS
i) eee errs Se re re
1 Charles Warren, The Supreme Court in
United States History (H. Johnston rev.
2 Pre ee re rt re
Transcript of President Clinton's Address to a
Joint Session of Congress, New York
Times, Feb. 18, 1993, at A20 ..........
21
6, 7, 17, 18
8, 16
12
15, 16, 18
21
13
STATEMENT OF INTEREST ,
Amicus curiae the American Judicature Society submits
this brief in support of Respondents.
Founded in 1913, the American Judicature Society is a
national, non-profit organization with members who are
judges, lawyers, and lay people dedicated to improving the
administration of justice. It is funded through members’ dues,
contributions, and grant funds for special projects. For 86
years, the Society has been the foremost national organization
speaking with a credible and independent voice on
administration of justice issues.
The Society’s mission includes promoting improvements
in the operation of the courts and building knowledge through
empirical research. The Society develops and sponsors
educational programs on the justice system for law students,
journalists, teachers, recent immigrants, jurors, and other
citizens. It publishes Judicature, a bi-monthly refereed journal
that contains articles on a wide range of court system issues,
including recent examinations of jury reform; social science,
the courts, and the law; judicial performance evaluations; and
the growing impact of the new genetics on the courts. Through
awards, such as the Herbert Harley Award, the Justice Award,
and the Toni House Award, the Society recognizes individuals
and groups for contributions to the justice system and
increasing public understanding of the administration of
justice.
The Society’s Center for Judicial Conduct Organizations
promotes the development of judicial discipline that is fair but
does not compromise judicial independence. The Elmo B.
Hunter Citizens Center for Judicial Selection promotes judicial
selection reform to ensure a bench of the highest quality.
The Society’s Center for Judicial Independence promotes
a judiciary that is free to issue fair and just rulings without
bowing to popular and political pressures. The Center focuses
2
attention on the proper role of the judiciary in relation to the
legislative and executive branches of government and responds
to the negative effects of misleading or politically motivated
attacks on the judiciary. The Center also conducts research and
produces publications that further the understanding of the
threats to, and opportunities for strengthening, the
independence of the judiciary. The Center develops
educational programs and materials to emphasize the
importance of an independent judiciary and sponsors various
public education and outreach programs.
Because of its historical and continuing commitment to
judicial independence and the effective administration of
justice, the Society respectfully asks this Court to consider the
following arguments: (1) that the restrictions placed on
arguments Legal Services Corporation attorneys can raise in
welfare cases are unconstitutional based on Separation of
Powers and federalism concerns; or (2) alternatively, that
Section 504(a)(16) of the Omnibus Consolidated Rescissions
and Appropriations Act of 1996 (“OCRAA”)' should be
construed to avoid the serious constitutional questions that
result from the Government’s proposed interpretation.
STATEMENT OF THE CASE
Amicus curiae relies on Respondents’ Statement.
SUMMARY OF ARGUMENT
It is the unique “province and duty” of the judicial branch
to say “what the law is”. Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803). The Separation of Powers between
the political branches acting under Articles I and II and the
judicial branch acting under Article II] is designed, among
other things, to preserve this prerogative. Congress may not
limit, or curb, the arguments--most importantly constitutional
' Pub. L. 104-134 § 504(a)(16), 110 Stat. 1321, 1321-55-56 (1996).
arguments--that courts may consider in deciding cases within
their jurisdiction.
This case involves Section 504(a)(16) of the OCRAA
(“the Appropriations Rider”). The Government interprets the
Rider to mean Legal Services lawyers are forbidden to claim--
or even to argue--that a particular welfare rule, regulation or
provision in a statute is either unconstitutional or contrary to
statutory law, including the governing welfare statute itself.
If the Rider means what the Government says it does (but see
Point III showing it does not), it would be an unconstitutional
violation of the Separation of Powers. (Point I.)
The Separation of Powers, and the protection it entails of
the judicial branch’s prerogative to “say what the law is”, has
* been a key part of our Constitution from inception. The
Government’s construction of the Appropriations Rider is
entirely antithetical to the role of the judicial branch in the
? In its brief, the LSC claims that the Rider prohibits “a lawyer’s
argument to a court [that] a welfare reform law is unconstitutional or
illegal”. Br. of LSC at 18. The United States similarly says the Rider
would forbid representation that would involve challenges to a welfare
statute on “meritorious constitutional grounds” or “statutory challenges”.
Br. of United States at 28, 30.
The LSC’s “final rule” on Section 504(a)(16) construed the Rider’s
ban on litigation involving “an effort to reform a federal or state welfare
system” to preclude litigation with respect to “rules or regulations enacted
as part of a reform of a welfare system”. 62 Fed. Reg. 30765-77 (June 5,
1997) (codified at 45 C.F.R. Pt. 1639). The LSC interpreted the ban on
suits for relief that would “amend or otherwise challenge” “existing law”
in the Rider’s proviso as relating to federal, state or local laws enacted “as
an effort to reform a welfare system”, or regulations promulgated
thereunder pursuant to notice and comment procedures. Jd at 30766.
(The LSC takes the position that agency policies may be challenged,
however. Id. at 30766 (Preamble to Final Rule); Br. of LSC at 7.)
For ease of reference, the interpretations above are referred to as the
“Government’s interpretation” or “Government’s construction”.
Separation of Powers. It skews the adversary system and
forces courts to decide cases with a hamstrung advocate on one
side. Under the Separation of Powers, Congress cannot make
a law that inhibits courts from carrying out their duty to
evaluate statutes in light of the Constitution, which is the
supreme law of the land. Nor can they hamper courts in
determining whether statutes comport with one another.
(Point I.)
The Government’s construction of the Appropriations
Rider as applied to the state courts also contravenes settled
principles of federalism. (Point II.)
The constitutional questions can be avoided. The
Government’s construction of the Appropriations Rider is
wrong or, at the least, so dubious that it should be rejected so
as to avoid the resulting “serious doubt of constitutionality” on
First Amendment, Separation of Powers and federalism
grounds. Ashwander v. TVA, 297 U.S. 288, 345-356 (1936)
(Brandeis, J., concurring). (Point III.)
The Appropriations Rider prohibits a Legal Services
lawyer from engaging in “litigation, lobbying, or rulemaking”
that involves an “effort to reform” a Federal or State welfare
“system”. Pub. L. 104-134, 504(a)(16), 110 Stat 1321-55-56.
The plain meaning of this basic prohibition against “effort[s]
to reform” a welfare “system” does not prohibit attempts to
assure compliance with law, including the Constitution under
Marbury.
The Rider’s basic prohibition against “effort[s] to reform”
a welfare “system” is followed by a proviso stating that the
prohibition does not preclude a lawyer funded by the Legal
Services Corporation (the “LSC”) under the Legal Services
Corporation Act’ (“LSC Act”) from “seeking” “specific relief”
from a welfare agency, if “such relief’does not involve:
“an effort to amend or otherwise challenge existing
es
The Rider thus prohibits “effort[s] to reform” a welfare
“system”. It expressly allows suits for “specific relief’ where
such relief would not “amend or otherwise challenge” existing
law. Properly understood, these restrictions limit only legal
action that would have the effect of systemwide change.
Nothing in the Rider, therefore, should be understood to
prohibit any particular arguments in support of claims that do
not attempt to “reform” a welfare “system”. This
understanding of the Rider not only obeys its language, but
would also be faithful to the language and intent of the Legal
Services Corporation Act itself. The LSC’s interpretation of
the Rider (i.e. that it bans constitutional and statutory
arguments), therefore, is wrong. (Point IIIA.)
An additional defect plagues the Government’s extension
of its reading to preclude contentions that a welfare rule,
regulation or provision in a statute is unconstitutional. Under
our system, when courts Consider constitutional claims, they
are ensuring compliance with law--not “reforming” or
“challenging” it. Congress should not be assumed to have
perversely singled out constitutional contentions as beyond the
pale unless it spoke with clarity. Cf Webster v. Doe, 486 U.S.
> 42 U.S.C. § 2996 et. seq (1974).
* As set forth at greater length in Part I of the brief of amici curiae
New York State Bar Association et al., the LSC Act mandates that Legal
Services lawyers should perform their duties according to the “highest”
quality of professional standards, 42 U.S.C. § 2996f(a)(1), with “full
freedom to protect the best interests of their clients in keeping with the
Code of Professional Responsibility, the Canons of Ethics, and the. . .
standards of the legal profession”, id. § 2996(6), and that the LSC should
“Insure” “protection of the . . . adversary process from any impairment in
furnishing legal assistance to eligible clients”. Id. § 2996f(a)(1).
592, 603 (1988); Weinberger v. Salfi, 422 U.S. 749, 765
(1975). This it surely did not do.
However, even if the Rider could be seen as ambiguous,
under Ashwander, in order to avoid serious problems under the
Separation of Powers (this brief), and the First Amendment
(Respondents’ brief), as well as conflicts with the LSC Act’s
provisions on ethics (amicus brief of New York State Bar
Association et al.), the Rider should not be construed to
prohibit claims--and certainly not arguments--by Legai
Services lawyers that are intended to assure compliance with
the Constitution and other governing law. (Point III B.)
ARGUMENT
I. AS CONSTRUED BY THE GOVERNMENT, THE
CONSTRAINTS PLACED ON THE ADVERSARIAL
PROCESS IN WELFARE CASES RESULT IN AN
UNCONSTITUTIONAL INTRUSION ON THE
SEPARATE POWERS OF THE JUDICIAL
BRANCH.
A. The Constitution Prohibits the Political
Departments from Acting to Prevent, or to Inhibit,
Article II Courts from Exercising Their Province
and Duty to Say What the Law Is.
During colonial times and the era of the Articles of
Confederation, legislatures commonly usurped the powers and
ability of courts to decide cases. See Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 219 (1995). See also The Federalist
No. 48, at 311 (James Madison) (Clinton Rossiter ed., 1961)
(discussing the need for Separation of Powers because some
colonial legislatures had “decided rights which should have
been left to judiciary controversy”). The distinctions between
legislative, executive and judicial power were blurred--and the
separate and distinct powers of courts were often plucked away
by legislatures. Thus,
“[t]he Framers of our Constitution lived among the ruins
of a system of intermingled legislative and judicial
powers, which had been prevalent in the colonies long
before the Revolution, and which after the Revolution had
produced factional strife and partisan oppression”. Plaut,
514 US. at 219.
A sense of “sharp necessity to separate the legislative from the
judicial power” “triumphed among the Framers of the New
Federal Constitution”. /d. at221. See also INS v. Chadha, 462
U.S. 919, 961 (1983) (Powell, J., concurring).
As explained in the Federalist Papers, the Judicial Branch
was, “from the nature of its functions”, “least dangerous to the
political rights of the Constitution”. See Plaut, 514 U.S. at 223
(quoting The Federalist No. 78, at 465 (Alexander Hamilton)).
The judicial branch, “beyond comparison the weakest .. .
department”, with “no influence over either the sword or the
purse”, was recognized as uniquely vulnerable to incursions
from the other two departments. Hence, “all possible care”
should be taken to guard the judiciary against “attacks” by its
coordinate branches. The Federalist No. 78 at 465-66.
Fundamental to the Separation of Powers is that Congress
cannot require Article III courts to consider and enforce laws
without being able to evaluate the constitutional validity of
those laws. If Marbury means anything, it is that in deciding
cases, courts cannot be compelled to “close their eyes to the
Constitution”. Marbury, 5 U.S. (1 Cranch) at 178.
Time and again, this Court has resisted the notion that
Congress can recognize jurisdiction, yet at the same time limit
the arguments courts can hear, especially when the forbidden
arguments are constitutional ones. See Marbury, supra; see
also infra pp. 15-18. After United States v. Klein, 80 U.S. (13
Wall.) 128, 146-47 (1871), it is a Separation of Powers truism
that Congress may not interfere with the decision making
process of the courts by dispensing with judicial review when
the Constitution is at stake. See also Plaut, 514 U.S. at 218,
225; Chandler v. Judicial Council of the Tenth Circuit, 398
U.S. 74, 84 (1970) (acknowledging “the imperative need for
total and absolute independence of judges in deciding cases or
in any phase of the decisional function”); see also Henry M.
Hart, Jr., “The Power of Congress to Limit the Jurisdiction of
Federal Courts: An Exercise in Dialectic”, 66 Harv. L. Rev.
1362, 1373 (1953) (Article II prevents Congress from telling
courts how to decide); Martin H. Redish, “Federal Judicial
Independence: Constitutional and Political Perspectives”, 46
Mercer L. Rev. 697, 707 (1995) (“[D]ecisional independence
is the sine qua non of the federal judiciary’s operation”’).
This Court applied the decisional independence principle
in Klein, invalidating an attempt by Congress to limit this
Court’s ability to apply the Constitution according to its own
interpretation. Yakus v. United States, 321 U.S. 414 (1944), is
to like effect. There, this Court upheld a statutory scheme that
limited the arguments courts could hear in criminal cases. But
judicial acceptance of that limitation turned on the Court’s
confidence that those important constitutional claims would
ultimately be heard by a court competent to decide them.
See Hart, 66 Harv. L. Rev. at 1380. Here, there is no such
alternative, uncompromised forum.
Similarly, Congress violates the Separation of Powers
when it legislates in a way that immunizes its legislation from
judicial review, or puts a thumb on its side of the scale in
litigation.* Congress’ job is to enact laws consistent with the
Constitution. It unconstitutionally aggrandizes its own power
* See Klein, 80 U.S. (13 Wall.) at 147-48 (Congress cannot weight
decision toward itself in cases where it is a party). Cf United States v.
Sioux Nation of Indians, 448 U.S. 371 (1980) (no Separation of Powers
problem where Congress exposed itself to liability).
Fe ee ee
9
when it passes laws and at the same time seeks to limit
constitutional review of those laws.
Congress could not forbid courts to consider constitutional
or statutory arguments when a Legal Services lawyer
represents a plaintiff in a welfare case over which the courts
have jurisdiction. Likewise, interference by Congress with the
adversary system so as to alter the judicial process and
substantially increase the likelihood that constitutional ‘and
statutory issues will be purged from welfare cases (see Point B
below) violates the Separation of Powers.
If the Government’s construction of the Appropriations
Rider is correct, it would drive a wedge between court and
counsel in a manner that degrades the courts’ ability to perform
their constitutional function. Just as Congress cannot require
courts to turn a blind eye to the Constitution or to governing
Statutes, so it cannot render courts deaf to constitutional or
Statutory arguments by choking off a lawyer’s voice to
articulate them.
B. The Rider Would Distort and Prevent the
Effective Functioning of the Adversary System
and Undermine the Ability of Courts to Exercise
Their Province and Duty to Say What the Law Is.
The Government’s construction of the Rider wreaks havoc
with the adversary system on which the effective exercise of
the judicial power “largely depends”.® This undermines and
distorts the courts’ province and duty of finding and saying
what the law is.
In the mid-1990s, welfare “as we have known it” was
pronounced dead.’ In Congress, and in the states--some on
* O'Shea v. Littleton, 414 U.S. 488, 494 (1974) (internal quotation
omitted).
” Transcript of President Clinton’s Address to a Joint Session of
Congress, New York Times, Feb. 18, 1993, at A20.
10
their own initiative and then all in response to the mandates of
Congress--complex new welfare rules and regulations were
enacted.
When it passed the Appropriations Rider, Congress
reaffirmed its commitment to federal funding of legal services
and recognized federally-funded lawyers would be necessary
to help indigent persons cope with the complex new
regulations and assure consistent enforcement. Accordingly,
Congress authorized Legal Services lawyers to help implement
the new rules by representing indigent litigants in court to seek
payment under the new laws and regulations. However,
according to the Government’s interpretation, Congress, at the
same time, forbade Legal Services lawyers to contend to a
court that a rule, regulation, or provision in a statute is
inconsistent with a state constitution, a statutory provision, or
the United States Constitution.®
8 Given that this is the Government’s own construction, see Br. of
United States at 26-30, it is perplexing that petitioner United States
characterizes the Rider’s constitutional defects as somehow “hypothetical”
and resistant to facial challenge. Jd at 28 n.12. As framed by the
Government, every instance of Legal Services representation will require
a continuing search for constitutional or statutory issues, followed by a
possible denial or termination of representation if they arise, and then an
(often fruitless) search for substitute counsel. Indeed, the Legal Services
attorney for respondent Carmen Velazquez experienced firsthand the
ethical bite of the Government’s interpretation of the Rider in being forced
to resign from ongoing representation and leave a client to languish
without benefits. Br. of Respondents at 3. Ms. Velazquez’s inability to
find substitute counsel is no less concrete, id, nor is the dearth of
alternatives to Legal Services representation nationwide.
This is a far cry from NEA v. Finley, 524 U.S. 569, 583-84 (1998),
cited by the United States, where the facial challenge depended on the
remote possibility that an agency might, in the future, manipulate
subjective criteria in a viewpoint-discriminatory fashion. In contrast, the
Government’s interpretation places a “substantial obstacle” in the way of
a “large fraction” of cases, Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833, 895 (1992); therefore, a facial
challenge is entirely appropriate. See also City of Chicago v. Morales, 527
11
1. By Skewing the Adversary Process and
Forcing Courts to Decide Cases with a
Hamstrung Advocate on One Side, Congress
Violates the Separation of Powers.
The vast majority of welfare cases will be brought by
Legal Services lawyers. (The blithe assumption of the dissent
below and the Government’s brief that other counsel can
readily be found is wrong’.) It is the most basic litigation
reality that, operating under the Government’s rule, courts will
not be able to perform their constitutional function because
they will have to do so without the uncompromised assistance
of lawyers upon which our adversary system of justice
depends. The Government and the dissent say this will not be
the case. But lawyers who litigate cases, and judges, who
regularly hear them, understand how litigation operates and
why the Government’s imaginary world cannot be.
As any practicing lawyer, or judge, would attest based
upon life experience, the potential issues in cases do not appear
in sharp focus, or in many instances at all, when the client first
seeks legal assistance; indeed, issues sometimes surface for the
first time long after a case begins, even when the case comes
before this Court. Indigent clients retain Legal Services
lawyers to bring welfare cases seeking money or other welfare
benefits because they are sick, hungry, homeless, jobless, or in
need of childcare--not because they wish to raise some
~ ~ULS. 41, 55 n.22 (1999) (stating that facial challenge does not require
proof that no set of circumstances exists under which statute would be
valid); Janklow v. Planned Parenthood, 517 U.S. 1174, 1175 (1996)
(Stevens, J., in support of denial of certiorari) (same).
* As Part Il of the brief of amici curiae New York State Bar
Association et al. demonstrates, it is pure fantasy to imagine that lawyers
will materialize to take up the cause of welfare claimants seeking benefits
(under statutes recognized by the Government itself to be complex) if
Legal Services lawyers cannot represent them. For millions of poor
Americans, the “choice” of a welfare representative is brutally simple: a
Legal Services lawyer, or no lawyer at all.
12
landmark legal issue. Again, the blithe assumption of the
dissent below and the Government’s briefs that all
constitutional and statutory issues will be spotted at the outset
is inconsistent with experience--and “the life of the law . . . has
> 10
been experience”.
Even if the possibility of a prohibited issue is spotted at
the outset, the Legal Services lawyer and the client will often
be pressed to forego the prohibited contention and proceed
without it, to the detriment of both court and client. This is so
because, as shown in the accompanying amicus brief of New
York State Bar Association ef al., other counsel will often not
be available, and lawyer and client will realize the client will
be better served with a skilled lawyer than by the client pro se
--albeit at the cost of a valuable issue.'! Thus, in a situation
where the lawyer sees a contention that the Government says
can be raised, and a constitutional or statutory contention that
the Government says is barred, the lawyer would be under
pressure to press the first contention and abandon the second.
That would permit the Government to dictate its opponent’s
litigation strategy and destroy the “genuine” adversity that
justiciability requires. Cf United States v. Johnson, 319 U.S.
302, 304-05 (1943) (for one party to “dominate” a dispute
destroys the “‘honest and actual antagonistic assertion of
rights’” “essential to the integrity of the judicial process”)
(citations omitted).
© Oliver Wendell Holmes, Jr., The Common Law 5 (Mark DeWolfe
Howe ed. 1963).
'! Moreover, unless the Government’s construction is rejected, those
at risk of being sanctioned and losing the funding that keeps their
organizations in existence will “steer far wider of the unlawful zone” and
thereby further silence valuable speech about legitimate constitutional and
statutory issues. Keyishian v. Board of Regents of the Univ. of the State
of N.Y., 385 U.S. 589, 604 (1967) (quoting Speiser v. Randall, 357 U.S.
513, 526 (1958)).
‘
i
;
;
'
}
1
13
The supposed Congressional ukase, subjecting the courts
to a hamstrung lawyer on the plaintiff's side, forces courts into
positions irreconcilable with their constitutionally recognized
role and corrodes their Article III powers. A court may itself
neglect or miss the possible constitutional and statutory issues
because they are not raised. Or a court may assume (at the
peril of constitutional government) that since a Legal Services
lawyer has appeared, any statutory or constitutional issues have
been conceded.!?
Another possibility is that the court, knowing the Legal
Services lawyer before it is hamstrung, will raise the prohibited
Statutory or constitutional issues with the parties sua sponte
(with only one side able to comment), or consider the issues on
its own. But courts cannot be forced by Congress to address
important, complicated, and often previously unexamined
issues without the benefit of full briefing--or with one-sided
briefing. See Bounds v. Smith, 430 U.S. 817, 826 (1977)
(“Even the most dedicated trial judges are bound to overlook
meritorious cases without the benefit of an adversary
presentation”.); Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 221 (1974) (“[A] court must rely on the
parties’ treatment of the facts and claims before it to develop
its rules of law”.). Rulings produced from this skewed process
are more likely to be wrong; and such a process is utterly
inconsistent with the jurisprudential safeguards stemming from
the case or controversy requirement.!*
'2 Ofcourse this would be wrong because, as shown above, the issue
might not have been recognized yet or it might have been sacrificed by a
calculus that, if forced to choose, it is preferable to press the non-
prohibited issue and abandon the issue the Government has taken off the
table.
'? From its earliest days, this Court has required adversaries on both
sides in Article III courts. The Constitution itself requires that there be a
“case” or “controversy” before the “judicial power” can be invoked. One
of this Court’s first acts was the unanimous denial of a request for an
advisory opinion. See 1 Charles Warren, The Supreme Court in United
14
Still another unrealistic assumption is that it is only the
Legal Services lawyer who will initially conceive of a
constitutional or statutory issue, either when first discussing the
matter with the client or in the midst of the litigation.
The government defendant may place statutory questions
squarely at issue in defense to whatever the welfare client is
arguing. Under the Government’s interpretation, the Legal
Services lawyer would then have to delay the progress being
made toward vindication of the client’s rights, interrupt the
case, and cast about for another lawyer who would be free to
counter the government’s argument. Or, if unsuccessful in
this, just turn to the court and say: “You figure it out”.
Similarly, the court may raise statutory or constitutional
questions as it considers other points the parties have raised.
‘What is a Legal Services lawyer to do if, during an argument,
a judge at trial, or on appeal, asks whether the government’s
position violates the Constitution or is inconsistent with a
statute, including the governing welfare statute? Should the
lawyer say: “I decline to answer on the ground it may cost my
employer its LSC funding”? Or: “Please interrupt the
States History 486-89 (H. Johnston rev. ed. 1926).
The term “case” “implies the existence of present or possible adverse
parties, whose contentions are submitted to the court for adjudication”.
Muskrat v. United States, 219 U.S. 346, 357 (1911). See also Flast v.
Cohen, 392 U.S. 83, 94-101 (1968); Aetna Life Ins. Co. v. Haworth, 300
U.S. 227, 242 (1937) (stating case is justiciable where there is “a dispute
between parties who face each other in an adversary proceeding”).
It is understood that both the effective operations of courts and
fairness to litigants (particularly litigants whose special needs are
recognized by the Legal Services Corporation Act) require lawyers fully
armed with all potential arguments. Lawyers sharpen the “presentation of
issues upon which the court so largely depends for illumination of difficult
... questions”. O’Shea, 414 U.S. at 494 (internal quotation omitted). For
“fljaymen cannot be expected to know how to protect their nghts when
dealing with practiced and carefully counseled adversaries”. Brotherhood
of R.R. Trainmen v. Virginia, 377 U.S. 1, 7 (1964).
15
proceedings--and thereby delay vindication of my client’s
rights on the matters already being litigated--so that somebody
can try--often fruitlessly--to come up with another lawyer who
will appear to answer your question”?
If the Government’s interpretation stands, courts will be
confronted with a fully armed Government lawyer on one side
of welfare cases, and a Legal Services lawyer with one arm
tied behind his or her back on the other. There is decided
impropriety in Congress subjecting courts to a contest between
half a lawyer and a fully equipped lawyer--indeed a lawyer
representing powerful governments whose own rules and
regulations are before the court. There may be times when
playing by Marquis of Queensberry rules is unnecessary, but
litigation in which constitutional issues are at stake is not on
of them. |
2. Interpreting the Appropriations Rider to
Preclude or Inhibit Argument of
Constitutional and Statutory Issues Prevents
Courts from Performing Their Article I
Function.
A fundamental tenet of our constitutional system is that
Congress cannot prevent courts outright from deciding
constitutional issues in cases within their jurisdiction. See,
e.g., Marbury, 5 U.S. (1 Cranch) at 176-78; James S.
Liebman & William R. Ryan, “‘Some Effectual Power’: the
Quantity and Quality of Decisionmaking Required of Article III
Courts”, 98 Colum. L. Rev. 696, 829 (1998). Within the
tripartite division of constitutional powers,
“i]t is one thing for Congress to withhold jurisdiction. It
is entirely another to confer it and direct that it must be
exercised in a manner inconsistent with constitutional
requirements or, what in some instances may be the same
16
thing, without regard to them”. Yakus, 321 U.S. at 468
(Rutledge, J., dissenting) (emphasis added).'*
Logic dictates the same reasoning must bar the legislature from
polluting the judicial process by subjecting courts to half-
arguments that ignore the supreme law.
The Government’s construction of the Appropriations
Rider forces courts to decide cases where the lawyer for an
indigent plaintiff has one arm tied behind his or her back.
Because lawyers are the primary vehicle for adversary
development of issues before the court, the Government’s
interpretation eviscerates judicial consideration of
constitutional issues in cases brought by Legal Services
lawyers. For Congress to hamper the judiciary’s functioning
in precisely the cases and controversies that are its “province”
and “duty” to decide violates the Separation of Powers.
Congress cannot constitutionally ask the courts to pass over--or
even attempt to guarantee that they overlook--legislative
enactments that are contrary to law. See Marbury, 5 U.S. (1
Cranch) at 177-78; Dickerson v. United States, No. 99-5525,
2000 WL 807223, at *6, (S.Ct., June 26, 2000) (citing City of
Boerne v. Flores, 521 U.S. 507, 517-521 (1997)). Assuming
Congress can bar Legal Services lawyers from bringing certain
kinds of cases, what it cannot do is put Legal Services lawyers
into cases and then (if the Government’s interpretation is
accepted) bar them from making claims--or even arguments--
based upon the Constitution or statutory law.
Separation of Powers requires one branch not undermine
or impair the performance of another. See CFTC v. Schor, 478
U.S. 833, 851 (1986); Loving v. United States, 517 U.S. 748,
757 (1996) (“Even when a branch does not arrogate power to
'* Though Justice Rutledge wrote in dissent, “[this] Court, the
canonical literature, and Congress have treated Rutledge’s statement as
authoritative”. Liebman, 98 Colum. L. Rev. at 829. See, e.g., Sioux
Nation, 448 U.S. at 392; Hart, 66 Harv. L. Rev. at 1373; see also Gutierrez
de Martinez v. Lamagno, 515 U.S. 417, 430 (1995).
ia at
17
itself, moreover, the separation-of-powers doctrine requires
that a branch not impair another in the performance of its
constitutional duties”) (citations omitted). Given that Loving
announced the non-impairment principle in the context of a
conflict between the executive and legislative branches, it
follows a fortiori that the rule applies with even greater force
in an interbranch collision involving the judicial branch, which
is “beyond comparison the weakest” department, Federalist
No. 78 at 465-66, and thus requires, if possible, still more
vigilance against encroachments by its coordinate branches.
When Congress skews the adversary process in its own
favor, or sets up court proceedings where a fully equipped
government lawyer is to do battle with a hamstrung lawyer, the
legitimacy of the courts--of the “judicial power” itself--is at
stake. Courts must “take care to speak and act in ways that
allow people to accept” their decisions. Casey, 505 U.S. at 865
(1992). They must guard against perceptions they have
presided over unjust proceedings, a perception that “destroys
the appearance of justice and thereby casts doubt on the
integrity of the judicial process”. Rose v. Mitchell, 443 US.
545, 556 (1979). “[{T]he rule of law implies equality and
justice in its application”. Papachristou v. City of Jacksonville,
405 U.S. 156, 171 (1972). If courts are forced to decide cases
where Congress has altered the balance between contending
parties and placed a thumb on the scales of justice in favor of
government-including the Federal government itself--a
perception of injustice is inevitable.
* * * *
All the erroneous assumptions about the conduct of
litigation inherent in the Government’s interpretation, as well
as all the harm to the courts and perversions of the adversary
system it entails, would be avoided if we are correct that the
Government’s interpretation of the Appropriations Rider is
wrong. (See Point II.)
18
But if the Government is right that the Rider broadly bars
all contentions regarding welfare rules, regulations, or statutory
provisions, and, indeed that Legal Services lawyers cannot
even make constitutional or statutory arguments in support of
a client’s request for the “specific relief’ of money or other
welfare benefits, then the Appropriations Rider is an
unconstitutional incursion on the Separate Powers of the
Judicial Branch.
fl. APPLICATION OF THE GOVERNMENT’S
CONSTRUCTION TO CASES IN THE STATE
COURTS WOULD ALSO VIOLATE PRIN‘ ‘PLES
OF FEDERALISM.
State courts, like federal courts, are bound to uphold the
Constitution of the United States and laws made in pursuance
thereof. U.S. Const. Art. VI (“This Constitution . . . shall be
the Supreme law of the land . . . and the Judges in every state
shall be bound thereby”). See Lockhart v. Fretwell, 506 U.S.
364, 375-76 (1993) (Thomas, J., concurring); Steffel v.
Thompson, 415 U.S. 452, 482, n.3 (1974) (Rehnquist, J.,
concurring); Liebman, 98 Colum. L. Rev. at 701. State courts
obviously also are vital to defining and upholding state
constitutions, laws, and regulations.
Under the Government’s interpretation of the Rider, even
if a sovereign state believes the contours of its welfare system
are best defined through full and free litigation in its state
courts--even if the state legislature so decrees and state
Governor so announces--Legal Services lawyers in those state
courts still cannot make the arguments deemed appropriate by
the entire mechanism of state government. Given the
“inviolable sovereignty” of the states,'* this Court should not
presume Congress intended to work such an interference with
state courts unless that intention is “unmistakably clear”. See
'S E.g., Alden v. Maine, 119 S.Ct. 2240, 2247 (1999) (quoting The
Federalist No. 39, at 245 (James Madison)).
19
Gregory v. Ashcroft, 501 U.S. 452, 460-62 (1991). Obviously,
the Rider fails for lack of such clarity.
If. THE APPROPRIATIONS RIDER SHOULD NOT BE
INTERPRETED TO BAR LEGAL SERVICES
LAWYERS FROM CLAIMING--OR EVEN
ARGUING--THAT A PARTICULAR WELFARE
RULE, REGULATION, OR PROVISION IN A
WELFARE STATUTE IS UNCONSTITUTIONAL
OR CONTRARY TO STATUTORY LAW.
The Government’s interpretation is wrong. It is
inconsistent with the language of the Appropriations Rider
itself. It would cause ludicrous and anomalous results in the
courts.
Careful examination of the Rider as a whole reveals that--
at most--it can be read to prohibit seeking certain broad-
ranging structural, or policy-based remedies--not contentions
that an individual welfare rule, regulation or provision in a
statute is either unconstitutional or contrary to statutory law,
including the governing welfare act itself. Moreover, the
proviso on which the Government relies limits only the type of
relief that may be sought. If the “specific relief” is for money
or other welfare benefits, there is no bar on making
constitutional or statutory arguments in support of that relief.
Thus, the proper reading of the Rider is one that allows all
claims that are not “‘effort[s] to reform” a welfare “system”,
and indeed authorizes all necessary and proper arguments on
behalf of individual clients in suits for specific relief.
The error of the Government’s interpretation is made even
clearer by two bedrock legal principles of this Court’s
constitutional jurisprudence: first, statutes should, if possible,
be construed to avoid constitutional questions, as well as
conflicts with other statutes; second, Congress should not be
assumed to have legislated to hamper courts’ ability to decide
cases within their jurisdiction, unless Congress’ intent to do so
is “clear”. No such clear intent is manifested here.
20
A. The Government’s Interpretation Is Wrong.
Public Law 104-134, passed by the 104th Congress in
April 1996 as an “Appropriations Act”, was said to be an Act
“making appropriations for the Departments of Commerce,
Justice and State, the Judiciary, and related agencies for the
fiscal year ending September 30, 1996, and for other
purposes”. Pub. L. No. 104-134, 110 Stat. 1321 (1996). The
Legal Services Corporation (the “LSC’’) is among the mynad
(89) departments, agencies, commissions, administrations,
offices, divisions, councils, institutes, programs, funds and
services for whom funds were appropriated by the Act.
Section 504 of the Appropriations Act placed substantive
limitations on the kinds of legal activities that can be
undertaken by persons or entities that receive LSC funds.
Subsection (a)(16) of Section 504 forbids any LSC funds
to be provided to an entity or person that:
“initiates legal representation or participates in any other
way, in litigation, lobbying, or rulemaking, involving an
effort to reform a Federal or State welfare system, except
that this paragraph shall not be construed to preclude a
recipient from representing an individual eligible client
who is seeking specific relief from a welfare agency if
such relief does not involve an effort to amend or
otherwise challenge existing law in effect on the date of
the initiation of the representation”.
In what follows, we refer to the language through “effort to
reform a Federal or State welfare system” as the basic
prohibition. The remainder is referred to as the proviso and its
exception.
The Rider’s basic prohibition is against an “effort to
reform a Federal or State welfare system” by means of
“litigation, lobbying, or rulemaking”. Whatever these words
mean, they certainly do not prevent a Legal Services lawyer
21
from contending that an individual rule, regulation or provision
of a welfare statute is either:
(1) inconsistent with the governing welfare statute or
another statute, or
(2) inconsistent with the Constitution.
Such arguments with regard to individual rules,
regulations, or statutory provisions are (1) not directed toward
“a welfare system”, and (2) are not “effort[s] to reform”. To
the contrary, they are efforts to assure compliance with the law.
Whatever is barred must be an “effort to reform” a Federal or
State welfare “system”. As the LSC’s brief recognizes, this
means “‘broad-ranging litigation”. Br. of LSC at 2.'° Thus,
the basic prohibition does not forbid a claim on behalf of an
individual client that a particular rule, regulation, or statutory
provision is illegal or unconstitutional. Indeed, it could never
be “reform” to require that a law conform to the Constitution;
that is simply the basic prerequisite for all laws under the
Supremacy Clause and Marbury.
Because the Rider is so limited to broad “effort[s] to
reform” a welfare “system”, the Government’s interpretation
is not saved by the proviso and exception to the proviso that
follow the basic prohibition.
As a matter both of logic and conventions in the
interpretation of statutes and other writings, the
proviso/exception cannot pump substance into the basic
provision that is not in the basic provision in the first place.
See 2A Sutherland Stat. Const. § 47.08 (Sth ed. 1991) (stating
that the purpose of provisos is to restrict the effect of the
existing statutory language to Jess than what its scope of
operation would be otherwise); 73 Am. Jur. 2d Statutes § 318
'* That the word “litigation” in the basic provision is linked with
“lobbying” and “rulemaking” further supports the conclusion that the basic
prohibition is directed at policy-oriented changes that attempt to “reform”
the welfare “system”.
22
(1974) (“The natural and appropriate office of a proviso is to
create a condition precedent; to except something from the
enacting clause; to limit, restrict, or qualify the statute in whole
or in part; or to exclude from the scope of the statute that
which otherwise would be within its terms”); Commonwealth
of Pennsylvania v. Brown, 260 F. Supp. 323, 350 (E.D. Pa.
1966) (provisos are “qualifiers, not nullifiers”); State ex rel.
Browne v. Hechler, 476 N.E. 2d 559, 561 (W.Va. 1996) (same
as Sutherland); Sanzone v. Board of Police, 592 A.2d 912,918
(Conn. 1991) (provisos “restrict” scope of a statute);
Commerce Bank of Kansas City, N.A. v. Missouri Div. of
Finance, 762 S.W.2d 431, 436-37 (Mo. App. 1988) (same as
Sutherland).
The basic prohibition forbids only “effort[s] to reform” a
welfare “system”; the rules of construction above demonstrate
that no proviso or exception can add conduct--such as making
non-systemic arguments--that would not “otherwise be within
its terms”. These points alone should trump the Government’s
interpretation.’”
In any event, though (as shown above) the Rider read as a
whole cannot mean what the Government says it does, it is also
true that the words of the proviso/exception looked at alone do
not support the Government’s interpretation. The language of
the proviso/exception, looked at alone, shows that, whatever
'7 The United States refers to the proviso and its exception as a “rule
of construction”. Br. of United States at 26. We agree to the extent that
the proviso and exception should be read as inseparable from--and having
no power to alter what is contained within—the basic prohibition against
“effort[s] to reform” a welfare “system”. Where we differ from the
Government is that we do not agree that a lawyer’s claim that a welfare
rule, regulation or provision in a statute is unconstitutional or illegal is an
“effort to reform” a welfare “system”. We also differ on the meaning of
the proviso/exception (when looked at alone). The Government says
constitutional and statutory arguments never can be made; we say that
such arguments can be made where the “specific relief” sought is for
money or other welfare benefits.
23
might be barred, it is not making particular arguments; rather,
what it may bar is seeking certain broad-ranging types of relief.
Thus, a Legal Services lawyer whose requested relief is for
money or other welfare benefits for the welfare client, is just
as free as any other lawyer to argue that the client is entitled to
that relief based upon some statutory or constitutional point.
The proviso/exception is, at most, barring the seeking of
relief, other than specific welfare benefits such as cash
benefits, job training or child care vouchers, for a client--for
example, contending that a state’s “welfare system” is so
flawed that a court should supervise a welfare department, or
seeking system-wide injunctive relief even without class
certification, or arguing that a state constitution’s social —
welfare provisions supersede welfare legislation entirely.'*
The words “amend or -otherwise challenge” in the
proviso/exception support the conclusion--drawn from the
words of the basic prohibition--that the Appropriations Rider
is not designed to prevent a claim on behalf of an individual
eligible client seeking to enforce governing law by showing a
particular welfare rule, regulation or provision in a statute
would be unconstitutional or illegal if it was construed to deny
benefits. Consistent with the basic prohibition against wide-
ranging, systemic reform, the proviso clarifies that what
remains prohibited--even under the exception for specific
relief--are challenges so broad-based to be tantamount to
“amend[ing]” existing law.
Another point based upon the words of the
proviso/exception arises from analyzing the Government’s
interpretation as applied separately to (i) statutory arguments,
and (ii) constitutional arguments.
As to statutory arguments, whatever the words “amend or
otherwise challenge” mean, they clearly should not prohibit a
'8 Of course, this understanding accords with the meaning of the
basic prohibition against “effort[s] to reform” a welfare “system”.
24
contention that a challenged rule, regulation or statutory
provision is inconsistent with the governing welfare statute or
with another statute. Indeed, such arguments would be “an
effort” to enforce (not to “amend or otherwise challenge’)
“existing law”.
If one accepts (based on the clear language of the Rider)
that arguments brought under the existing statutory law are
permissible, can the Government still contend that a Legal
Services lawyer is barred from claiming that the rule,
regulation or provision in a statute relied upon by the welfare
agency is inconsistent with the Constitution? This position
would be wrong for all the reasons set forth above and much
more. :
First, as we show in Part B below, Congress’ intent to
achieve such a strange prohibition, singling out constitutional
arguments as beyond the pale, must be “clear’’; it certainly is
not.
Second, the Government’s interpretation would produce
ludicrous and anomalous results in litigation. When faced with
a potentially unconstitutional rule or regulation, a traditional
argument to a court is that an adversary’s position should be
rejected so as to avoid a constitutional problem. Does the
Rider permit such constitutional avoidance arguments? The
Government has never said it does--and Legal Services lawyers
cannot risk the funding of their organizations by gainsaying the
Government’s desire to limit criticism.'? Such an interpretation
by the Government would be just an extreme example of its
error: arguments that by their very nature are intended to
assure compliance with the Constitution itself are banned as
“effort[s] to reform”.
'9 If, however, the Government announces that constitutional
avoidance arguments are permitted, even though a contention that a
challenged provision is in fact unconstitutional is barred, it would further
illustrate the illogical and inappropriate contortions caused by the
Government’s interpretation of the Rider.
25.
As shown above, the Government’s construction is
contrary to the language of the Rider.” The Government’s
erroneous construction is not saved by the LSC’s final rule
(supra note 2) for three reasons.
First, Congress did not expressly instruct the LSC to
promulgate regulations pursuant to Section 504(a), and the
regulations therefore are entitled to less. deference under
Chevron v. NRDC, Inc., 467 U.S. 837, 843 (1984), than
regulations promulgated pursuant to such express instructions
as appear elsewhere in the Rider. E.g., Sec. 503(3)(b)
(directing the agency to promulgate regulations to implement
a competitive selection process).
Second, the agency’s interpretation is not “reasonable”, as
required under Chevron, because its reading would be an
“affront to common English usage.” Jd. at 860. The words
“effort to reform a... system” do not connote in any way a
claim that a particular provision is unconstitutional or illegal.
Moreover, if Congress intended to depart so far from ordinary
usage and use “litigation . . . involving an effort” to denote
only government efforts, Congress could have so specified. Cf.
Pittston Coal Group. v. Sebben, 488 U.S. 105, 112-115 (1988)
(refusing to narrow term “criteria” in a statute to mean only
specific criteria).
But that is not what Congress did. Instead, the Rider
precludes lawyers from commencing litigation involving “an
effort” to reform a welfare system, which clearly refers to
efforts by the lawyer him-or-herself. Moreover, the
20 In evaluating the speech implications of the Government’s
construction, however, the decision below apparently accepted the
Government’s interpretation of the Rider. E.g., Velazquez v. Legal Servs.
Corp., 164 F.3d 757, 769 (2d Cir. 1999). The proper construction of the
Rider thus is squarely before the Court. (Indeed, it would be even if the
decision below had not reached this question, under, e.g., United States v.
New York Tel. Co., 434 U.S. 159, 166 n.8 (1977) (“[Tyhe prevailing party
may defend a judgment on any ground”)).
26
Government’s interpretation would not be harmonious with the
language of the proviso, which permits constitutional and
statutory arguments in suits for specific relief such as money
or welfare benefits.
Third--and most fundamentally--independent of the
problems that the agency’s interpretation creates under
Chevron itself, Chevron cannot save an _ otherwise
unconstitutional statutory construction. Even if two
interpretations were equally possible under Chevron, which is
not the case, Ashwander's principle of constitutional avoidance
nevertheless would direct this Court to choose the one free of
constitutional defects. See Rust v. Sullivan, 500 U.S. 173, 191
(1991) (subjecting agency regulations to constitutional -
avoidance analysis); American Trucking Assocs., Inc. v. EPA,
195 F.3d 4, 14 (D.C. Cir. 1999) (Silberman, J., dissenting) (“In
other words, [after Rust], the constitutional avoidance canon
trumps Chevron deference”).
B. Under the Principles Set Forth by This Court in
Ashwander and Related Cases, the Interpretation
Given to the Appropriations Rider by the
Government Should Be Rejected.
As we have shown above, the Government’s interpretation
of the Appropriations Rider is wrong; it conflicts with the
language of the Rider itself. Nonetheless, should the Court
determine a question of statutory construction exists, under
Ashwander the statute should be construed, if possible, to avoid
the numerous constitutional problems identified by this brief
and the briefs of Respondents and other amici. For, “when the
validity of an act of Congress is drawn in question, and even if
a serious doubt of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the
question may be avoided”. 297 U.S. at 348 (quoting Crowell
v. Benson, 285 U.S. 22, 62 n.8 (1932)). See also Gomez v.
United States, 490 U.S. 858, 864 (1989); United States v.
- severest
27
National Treasury Employees Union, 513 U.S. 454, 478
(1995).
It undoubtedly is “possible” (indeed, correct, as we have
shown above) for the Court to construe the statute so as to
avoid the “serious constitutional issues” presented by the
Rider’s violation of the Separation of Powers, the First
Amendment, and principles of federalism. For that reason
alone, this Court should reject the Government’s interpretation
and read the statute to avoid the serious constitutional problems
that stem from the Government’s construction.”!
If Ashwander were not sufficient to doom the
Government’s interpretation (though it clearly is), the
Government’s construction would still be constitutionally
suspect based on the Rider’s lack of clarity in (as the
Government would have it) singling out constitutional claims
for suppression. Just as, “where Congress intends to preclude
judicial review of constitutional claims its intent to do so must
be clear”, Webster, 486 U.S. at 603; see also Weinberger, 422
U.S. at 765, Congress should not lightly be assumed to have
removed constitutional claims from judicial scrutiny by
silencing--for all practical purposes--the lawyers who can bring
them. The principle that a “serious constitutional question”
arises in the absence of a judicial forum for “colorable”
constitutional claims indicates that clear intent is required--as
it should be--before Congress will be taken to have intruded
upon the “province and duty” of the “weakest department”. Cf
Webster, 486 U.S. at 603-04 (limiting the. elimination of
21 In addition, the Court should reject the Government’s construction
of the Rider because it would cause conflicts with the ethical provisions
of the LSC Act, as set out in the accompanying amicus brief of New York
State Bar Association et al. and Brief of Respondents at 48-50. See Vimar
Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995)
(court should avoid conflict between statutes); Watt v. Alaska, 451 U.S.
259, 267 (1981) (same). This principle “applies with even greater force
when the claimed repeal rests [as here] solely on an Appropriations Act”.
TVA v. Hill, 437 U.S. 153, 190 (1978).
28
review only to those claims specifically listed in the statute and
narrowly tailored to its text); Weinberger, 422 U.S. at 762
(looking at “plain language” of statute for prohibition of
claims).
29
CONCLUSION
For the reasons stated, the Court should hold either (1) that
the Appropriations Rider is unconstitutional on Separation of
Powers and federalism grounds, as well as under the First
Amendment; or (2) that the Rider does not prohibit Legal
Services lawyers from making claims, or arguments, that a
particular welfare rule, regulation or statutory provision
violates the Constitution or statutory law.
Respectfully submitted,
Pd aa 4. a a 7
FREDERICK A. O. SCHWARZ, JR.
Counsel of Record
ALEXANDRA S. WALD
CRAVATH, SWAINE & MOORE”
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
Attorneys for Amicus Curiae**
ty Kad Magna
JEAN REED HAYNES
PRESIDENT
AMERICAN JUDICATURE SOCIETY
180 North Michigan Avenue
Suite 600
Chicago, Illinois 60601
(312) 558-6900
* MariaSole Palma, a second year law student working at Cravath,
assisted in preparation of this brief.
** As required by Sup. Ct. R 37(6), we state that this brief was not
authored by counsel for any party. -
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