In the next few weeks, statutory interpretation is going to be the talk of the town. President Trump’s emergency declaration, though it has all the trappings of a constitutional crisis and king-like assertions of power, is really nothing more than a nice little question about the meaning of statutes. Congress passed a statute that allows the President to declare a “national emergency.” Once the President makes that declaration, he can then invoke other statutes (also passed by Congress) that give the President specific powers otherwise unavailable without the declaration.
For the President’s wall, that statute is 10 U.S.C. § 2808, which gives the Secretary of Defense the power to “undertake military construction projects” after the President declares a national emergency:
In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act . . . that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.
And there you have it, right there in the text written by Congress: The President can start building things “without regard to any other provision of law.” It’s statutes all the way down.
But the statutory scheme contains a few textual stumbling blocks for the President, places where the courts might step in and say that he’s exceeded the authority granted by Congress.
Legal analysis differs from other forms of analysis in (at least) one important respect: We have to deal with authority. The wall between “is” and “ought” can be insurmountable when you’re standing in front of a district court judge and she’s got a U.S. Supreme Court opinion that says you lose. Maybe the Supreme Court got it wrong. It happens. But you’re not going to win with that argument to the district court judge. She’s bound to follow that controlling opinion from the Supreme Court.
But outside of that simple example—binding authority with a directly on-point holding—the wall gets a bit more blurry. How do courts resolve legal questions when no clearly binding authority exists? And how should they resolve those questions?
Carrying a lantern into that darkness is Professor Amy Griffin’s new article, Dethroning the Hierarchy of Authority. The article attacks the binary way most lawyers conceptualize authority. In one bucket we put “binding” authority, which follows the fixed hierarchy of the courts. And in the other bucket we put so-called “persuasive” authority, which is just a jumble of everything else. Professor Griffin thinks we can do better:
We need better vocabulary, metaphors, and descriptive tools for sources used in legal argument in order to reach the more critical questions of what courts treat as law and why they do so.
Lawyers are quite good at addressing the easy questions, like my simple Supreme Court example. The Washington Court of Appeals understands that Washington Supreme Court opinions are binding authority. And it understands that Pierce County Superior Court opinions are not. But Professor Griffin observes that beyond those easy questions, our concept authority just isn’t up to the task:
For hard legal questions, [the existing binary scheme] tells us nothing about what sources a decision-maker might rely on beyond those that are binding. The existing model ignores the element of choice, assuming rules of law found within a prescribed set of legal sources dictate legal outcomes.
The statute does not distinguish between inter-Division and intra-Division panels. So when the Court says that “under the statute creating the Court of Appeals, conflicts are resolved not by stare decisis within that court, but by review in our court,” the Court’s ruling should apply with equal force to a three-judge panel following the prior decision of a different three-judge panel within the same Division. As I wrote previously: None of the governing statutes distinguish between inter- and intra-Division panels for purposes of stare decisis.
Last week, Chief Judge Appelwick of Division 1 decided to take the next logical step. He asserted that “[o]ne division of the Court of Appeals is not bound by the decision of another division” (citing to In re Arnold). But then he went further: “Nor is one panel of the Court of Appeals bound by another panel, even in the same division.” In re Marriage of Snider at 4 (emphasis added).
Let’s say you need a new chef’s knife. So you go to Bed, Bath & Beyond and head for the kitchen section. (That’s part of the “Beyond,” I guess.) In a fancy cutlery display you see a large selection of chef’s knives. But you don’t buy any of those. Instead, you walk right past the chef’s knives and over to the cheese knives. After perusing a bit, you buy this set:
Looks pretty nice! But when you get home and start preparing dinner, the cheese knives just don’t seem to do the job. It’s a total disaster! The next morning you go back to BB&B to return the knives. “They didn’t work at all! I couldn’t even slice a tomato with these things!” you complain. “And don’t even get me started on what happened when I tried to dice an onion!”
Not surprisingly, the customer service rep at BB&B isn’t sympathetic. She calmly responds, “Sir, these are cheese knives.”
Obviously, nobody would ever do anything like that. We understand that different tools have different purposes. And you shouldn’t malign a tool for not working in circumstances for which it was not designed to work. Something clearly labeled “cheese knife” should be used for cheese, not dicing onions.
But for some reason, people malign The Bluebook for this sort of thing all the time. The most recent entry in the catalog is this piece from Judge Gerald Lebovits: Cite-Seeing Part II: The Bluebook’s New York Bloopers. Judge Lebovits pulls no punches in his critique of The Bluebook’s “mistakes”: It “fails miserably when it comes to New York citations.” “Every rule and example in the Bluebook violates how a practitioner, judge, or academic should cite New York authorities.” “The Bluebook’s rule also contradicts” various state rules and statutes. And “it’s not hard to spot incorrect examples for New York in the Bluebook.”
So there I was on Sunday evening, October 7. A glass of scotch in hand, all ready to fill out the official Bluebook questionnaire, which would allow me to suggest improvements for the forthcoming 21st edition.
But then I clicked on the link. Apparently, despite previous reassurances that the survey would be open until October 8, I was too late. The survey was already expired.
It’s that thing, where a group of citizens can collect signatures, and then propose a statute . . . .
Okay, that’s enough of that gimmick. The case, however, is truly fascinating, and I think it’s worth a deep dive. I’m not going to focus too much on the substance of the dispute, which involves the rules regarding the initiative process. But the other two things–the lack of a majority decision and the remedial question of how to deal with an unconstitutional statute–are tied up with those rules. So there’s a bit of background work to do before we get to the good stuff. Stay with me.Continue reading →