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A Supreme Court Ruling on Jurisdiction Has Potential Implications for the Law Regarding Drone Strikes

Monday’s Supreme Court decision in Elgin v. Dep’t of Commerce will not make anybody’s list of the Court’s most important rulings this Term.  At issue was whether federal employees who lost their jobs could sue in a federal district court to challenge the constitutionality of the discharge decision or whether, instead, they had to bring their challenge before a federal administrative agency, and only go to federal court by way of appeal.

The ruling in Elgin nonetheless raises fundamental questions about the roles of the respective branches of the federal government.  The Court’s reasoning has potential implications for such matters as whether the Obama Administration is justified in refusing to defend the Defense of Marriage Act (DOMA), and whether the executive safeguards on the policy of drone strikes on suspected militants satisfy the Constitution’s requirement of due process of law.  After discussing the ruling in Elgin, I shall explore Elgin’s more far-reaching implications.

The Ruling in Elgin

A federal law requires male citizens of the United States to register with the Selective Service if they are between the ages of eighteen and twenty-six.  Another federal law bars anyone who failed to comply with the registration requirement from serving in the executive branch of the federal government. The plaintiffs in the Elgin case were fired (or constructively fired) from their federal executive jobs for failure to register.  They objected that the discharges were unconstitutional because they could only apply to male employees, and never female employees.

The constitutional objection looks weak.  In the 1981 case of Rostker v. Goldberg, the Supreme Court rejected a claim that the draft-registration requirement is unconstitutionally sex-discriminatory. To be sure, it is possible that changes in society and in the armed forces in the ensuing three decades make the Rostker case ripe for reexamination. It is also conceivable that the plaintiffs could prevail on their claim that the draft-registration requirement constitutes a forbidden “bill of attainder,” a claim that was neither raised nor addressed in Rostker.  Still, if one were betting, the odds would be strongly against the plaintiffs’ succeeding on the merits of their constitutional claims.

The Elgin case did not, however, address the merits of the plaintiffs’ claims.  The only issue before the Supreme Court was what body should adjudicate those claims.  The plaintiffs brought their case in federal district court in Massachusetts, invoking the statute that has long conferred jurisdiction on the federal district courts to hear federal claims, including federal constitutional claims.

The Supreme Court nonetheless held that the federal district court lacked jurisdiction.  Why?  Because yet another federal statute, the Civil Service Reform Act (CSRA), establishes a system of administrative adjudication for federal employee grievances.  That system includes an initial determination by the Merit Systems Protection Board (MSPB), and an opportunity for dissatisfied claimants to obtain review in the U.S. Court of Appeals for the Federal Circuit.  According to the Supreme Court’s majority opinion, written by Justice Thomas, the CSRA, including its appeal procedure, is a comprehensive system for addressing employee-discharge disputes, and that specific, comprehensive system impliedly displaces the general provision for federal lawsuits.

That conclusion is hardly unassailable, in no small part because the MSPB has taken the position that it lacks authority to decide constitutional challenges.  The majority responded that when a constitutional issue is raised, the MSPB could simply leave the matter for resolution by the Federal Circuit.  And, said the Court, if the resolution of a constitutional issue requires factual development, the Federal Circuit can instruct the MSPB to conduct the necessary hearing.

In dissent, Justice Alito (joined by Justices Ginsburg and Kagan) objected that this is a peculiar arrangement.  First, a claimant must file a claim with the MSPB, which must then deny the relief sought as being beyond its authority to grant; then, the case goes up on appeal to the Federal Circuit, which cannot adjudicate the claim because the facts have not been developed and because appellate courts do not hear evidence; so, next, the case is sent back to the MSPB for factual development; and, finally, the case goes back to the Federal Circuit where the claim is at long last adjudicated.  The dissent forcefully doubted the likelihood that Congress intended what Justice Alito called “these pinball procedural requirements.”

The Power of Agencies in Constitutional Matters

Whoever had the better of the argument in Elgin, the narrow decision the majority reached is relatively unimportant, resolving only the question whether Congress should be understood to have preferred that a class of claims be filed first in an administrative, or in a judicial, forum.  But the case touched on profound questions about the constitutional roles of each of the branches of government.

Consider a point that both the majority and dissent accepted for purposes of deciding Elgin.  In 1983, the MSPB stated “that administrative agencies are without authority to determine the constitutionality of statutes.”  It was just that lack of authority that made Elgin a hard case.  Yet why should administrative agencies lack authority to declare a statute unconstitutional?

By law, federal officeholders, including members of the MSPB and other federal executive bodies, must take an oath to “support and defend the Constitution . . . .”  One might think, therefore, that when asked to enforce a statute that is unconstitutional, federal officeholders would be required by their oath to set the unconstitutional law aside.  Yet according to the MSPB, administrative agencies are not even permitted to disregard unconstitutional laws.

What could ground such a view?  Surely, it cannot be any principle that the courts alone are entitled to interpret the Constitution.

President Obama, like nearly every president before him, has asserted some authority to refuse to enforce or defend laws that he deems unconstitutional, most prominently with respect to DOMA.  Likewise, the whole reason that the courts grant acts of Congress a presumption of constitutionality is the assumption that members of Congress, no less than judges, make judgments about the constitutionality of laws.

To be sure, the Supreme Court has made clear that in cases of conflict, the judicial interpretation of the Constitution prevails over any such interpretation by Congress or the President.  But even that principle cannot justify the position that administrative agencies lack the authority to invalidate unconstitutional statutes.  Quite the contrary, the rule followed by the MSPB and other agencies disallows those agencies from invalidating statutes even when the statutes are clearly unconstitutional under the Supreme Court’s precedents.

The point may be hard to see in the Elgin case because the plaintiffs’ underlying claims on the merits are weak.  Accordingly, imagine that the Elgin plaintiffs had been discharged under a hypothetical statute that forbade the employment of Muslims, in clear violation of the Religious Tests Clause of Article VI and First Amendment precedents.  Even then, the MSPB would still disclaim any authority to provide a remedy for the clearly unconstitutional discharge.

What, then, is the basis for the general proposition—accepted by all the Justices in Elgin—that administrative agencies generally should not entertain constitutional challenges? The cases cited for that proposition lead simply to earlier cases asserting the same thing, until one eventually comes to the following claim: The power to strike down a law is an awesome responsibility that should not be exercised by mere “ministerial” functionaries of executive agencies.

That claim is dubious at best, because the power of judicial review is not only exercised by the U.S. Supreme Court, but also by every federal judge and every state judge who sits on a court of general jurisdiction.  Is it obvious that a single state court judge is better suited to decide, in the first instance, on the constitutionality of any and all federal laws, than are federal administrative officers who are asked to rule on constitutional questions in the course of adjudicating matters within the scope of their administrative expertise?

Thus, a core premise of the Elgin case is, or at least should be, controversial.

A Right to a Federal Judicial Forum?

There is a second consequential premise buried in the Elgin opinion.  The plaintiffs had argued that the general right to sue in federal district court was preserved because of a rule requiring a clear statement “where Congress intends to preclude judicial review of constitutional claims.”  The Court found that rule inapplicable because, the majority said, it only applies when Congress does not provide an alternative route to federal-court review.  Here, there was no question that some federal court would be able to hear the claim; the only question was which one.

That is a perfectly adequate response, but it assumes that there would be something problematic were Congress to eliminate access to a federal court for constitutional claims.  Quoting earlier cases, Justice Thomas noted that a “serious constitutional question . . . would arise if an agency statute were construed to preclude all judicial review of a constitutional claim.”  The implication here is that there is a federal constitutional right to a judicial forum for constitutional claims (as opposed to an executive forum or no forum).

Is that true?  The text of the Constitution is hardly a model of clarity on this point.  It protects a right of habeas corpus against suspension, absent certain emergencies, but one might therefore think that the Constitution does not otherwise protect a judicial forum for non-habeas claims.  The text of Article III appears to give Congress substantial power to tinker with the lower federal courts’ jurisdiction because Congress did not even have to create any lower federal courts in the first place.  And Congress also has the power to make “exceptions” to the Supreme Court’s appellate jurisdiction.  Taken together, these powers could enable Congress to strip the federal courts of the power to hear most constitutional claims.

Thus, if there is a federal constitutional right to a judicial forum, it may have to be found in the principle of due process.  And that, in turn, raises a related question: Must due process always be judicial process?  Are there circumstances in which access to a fair administrative process satisfies due process?  And if so, do those circumstances ever include the resolution of constitutional claims?

These questions occasionally arise but go largely unanswered in the Court’s cases.  Recent events, however, have given them greater urgency.  In the wake of revelations that President Obama plays an active role in approving targets for drone strikes—including strikes upon U.S. citizens abroad—civil libertarians and others have questioned whether purely executive-branch procedures for target selection satisfy constitutional requirements.  In an important sense, the drone policy raises a question of administrative law and implicates the same considerations that are at play in a more mundane case like Elgin.

Seen in this light, the drone policy is extraordinary, because the usual due process formula—set forth in the 1976 case of Mathews v. Eldridge—ratchets up the procedural safeguards that are deemed necessary as the potential harm from an erroneous government decision increases.  Because the harm from an erroneous drone-targeting decision is the loss of innocent life, one would think that the best process available is required, and that should be judicial process.  If executive process can suffice instead, that must be because of the extreme value of the program to the government and the unwieldiness of judicial process in the military context.

Perhaps the drone program of targeted killings meets that high standard.  Or perhaps ordinary principles of due process simply do not apply on the battlefield.  But with only a hazy dividing line between battlefields and everywhere else, the constitutionality of the drone program remains at best unclear.  Monday’s decision in Elgin, while saying nothing about the drone program itself, should serve as a warning to the Administration that despite their differences on other matters, the Justices remain unanimous in their commitment to the primacy of judicial process.

Michael C. DorfMichael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.
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5 Responses to A Supreme Court Ruling on Jurisdiction Has Potential Implications for the Law Regarding Drone Strikes

  1. Kay Sieverding says:

    I’ve been thinking that Congress should require that the judiciary require all lawyers, pro se litigants, and judges to verify their filings under penalty of perjury.

    A few years ago you commented something to the effect that pro se litigants can be imprisoned without criminal procedure and without a criminal charge. You were referring to me Kay Sieverding but I don’t think you understood the facts.

    I had problems writing my section 1983 complaint. Part of my problem was that I had a claim for First Amendment Retaliation but when I wrote it, in 2002, the tort wasn’t listed in the books. I wrote a convoluted complaint stating that my rights were violated because dozens of municipal statutes and a state statute were violated. Because I was trying to do a good job, I paid $150 twice to file in courts and then without serving I voluntarily dismissed so I could file a revised complaint. There is an opinion In re Piper v. Aircraft Dict. Sys. Antitrust Litigation, 551 F. 2d, 213, 219, 8th Circ 1977 that says that it doesn’t matter if you file and dismiss a complaint if you do so before the defendants file anything. Magistrate Schlatter misquoted that and said that dismissing a case twice bars further litigation. That also conflicts with the S.C. decision in Semtek International v. Martin Lockheed.
    DDC Case 1:05-cv-01283-RMU Document 27-3 Filed 09/08/2005 Page 11 of 26␣
    Edward Nottingham, who later resigned after publicity re his use of prostitutes, dismissed my case without writing an opinion, which is required by Rule 52. He ordered me to pay $102 K without a trial, without Rule 11 motions, and without a Rule 11(c)(6) order. Then the USMS detained me for 5 months without a criminal charge. Twice this happened after you were quoted in the Denver Post. My life was basically ruined. One result of this is that the Steamboat Pilot is still publishing articles claiming that I am to be tried for harassing Jane Bennett. The articles don’t acknowledge that I was prosecuted in Routt County Colorado without a criminal complaint, a document signed under penalty of perjury, or a written statement of probable cause, or that the criminal charges were dismissed in 2001.

    Here is a link to a report that includes pdfs:
    http://www.lawlessamerica.com/index.php?option=com_mtree&task=viewlink&link_id=1996&Itemid=100

  2. mhherr says:

    “the constitutionality of the drone program remains at best unclear.”

    And what about the constitutionality of carrying explosives onto an airplane within one’s underwear or shoes?

    War is not a surgical event. But we’ve come to expect that it is with all of our sophisticated laser-guided bomb and missle system. These so-called “smart” systems are not supposed to injure innocent persons. BS.

    Get the government (the Executive Branch) out of the way of the generals who are trained to make battlefield decisions and let them do their jobs. The rest of the world has little regard for innocent American citizens.

  3. martial says:

    The decision seems to say that, when an agency deems itself unable to resolve constitutional questions, Federal Circuit courts are then to be used. Might Circuit courts then be overwhelmed by matters that would be resolved by District courts?

  4. Max Herr says:

    “the constitutionality of the drone program remains at best unclear.”

    And what of the constitutionality of terrorists boarding commercial aircraft with explosives in their underwear or shoes, and the rights of the passengers to enjoy safe travel?

    War (even a conjured up war on terror) is not a surgical event. The false sense that our technologically superior “smart” bombs and missiles are capable of distinguishing combatants from noncombatants is ludicrous, and to think that we can thus avoid “innocent civilians” in all circumstances is farfetched.

    What we really need is for the Executive Branch and the Legislative Branch to back off and let the generals who have been trained to make battlefield decisions do their jobs. This interference began with Truman’s failure to allow MacArthur to pursue the North Koreans into China, and resulted in 60 years of US military presence along the 38th parallel, with no plausible end in sight. And it has endured to this day.

    War is messy, and when one side has decided that there has been enough of a mess created, it ends. It worked that way in WWI, WWII, and sort of worked that way in Vietnam (but it was the public, not the politicians who really made the decision). In the present circumstance in the Middle East, our politicians kowtow to the likes of Hamid Karzai: (May 4, 2012) President Barack Obama has promised not to attack Pakistan-based al-Qaida leaders or fighters from bases inside Afghanistan. The surprising commitment effectively bars Obama and his successors
    from launching another nighttime helicopter raid like the one that that
    killed Osama bin Laden. (read more: http://dailycaller.com/2012/05/04/obamas-deal-with-karzai-bans-raids-into-pakistan/#ixzz1xgowjC1k )

    Either we fight to win or we don’t fight at all. But to make secret deals that utterly emasculate the war effort (whether you believe it is right or not) endangers all US citizens and members of our military at home and abroad.

    Dorf’s assertion that judicial review of military matters in time of war may be justified entangles all three branches of government in affairs none of them should be in a position to second guess.

    If we’re going to allow this, then just make it simple: disband all of the military, as we forced Japan to do following WWII, and have a simple national defense squad. Then see what happens.

    • Austin Jessup says:

      We’re not at war, we’re hunting terrorists. They have placed a label of war on it, but it does not meet with the prerequisites to be war. If our soldiers are in danger it is because they are where they are not supposed to be. These drone strikes are killing people in at least 5 countries and the collateral damage is signed off on, and administered by people playing a video game like killing machine. It’s not right, does not meet with the high standards we are to hold ourselves to, and creates resentment of not only our nation, but our people around the world. Perhaps if they would worry more about the people here and less about those elsewhere we wouldn’t be fighting terrorists, we wouldn’t have to worry about our citizens’ right to safety on airplanes, we wouldn’t have to worry about soldiers dying, being injured or traumatized, and our economy might not be so bad. We have brought many war criminals back here to try them in court and Obama won an election on the promise of ending wars, not facilitating and creating them.
      The proper course of action is seek other governments’ assistance, diplomatically, make them aware of intentions fully, and hold them accountable for our citizens for noncompliance. Terrorists are not just a threat to our country, but facilitating terrorists could be attributed directly to a threat, and then a war could officially called for in that instance. We don’t just go around the world killing people that we “suspect” of plotting acts of violence. Under those same laws, if you happen to mention threatening Obama or another high level official, such as a congressman, they could take you out too. This is not responsible government, no matter how many misguided citizens don’t care for human life, so long as it’s not American. Yes, they have a direct responsibility to us, but they also serve as ambassadors for us and are gravely (pun intended) failing us in that regard. That resentment created also puts us in danger of more events like 9/11, especially as technology around the world catches up. We can’t keep our secrets forever, nor can we continually kill citizens of other nations without an expectation of retaliation.

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