THE 2000-2001 SUPREME COURT TERM IN REVIEW, PART I

In Part One of a two part series on the past Supreme Court term, Professor Dorf — an expert on constitutional law — discusses the historic decision in Bush v. Gore, as well as several cases relating to the structural Constitution. In Part Two, to appear July 11, Professor Dorf discusses several important cases on constitutional rights. — Ed.

Constitutional scholars conventionally divide their subject into two broad categories.

First, there are structural provisions of the Constitution, which concern the allocation of authority between the state and federal governments, as well as among the legislative, executive, and judicial branches of the federal government. Such provisions include, for example, the enumeration of Congressional powers in Article I and the amendment procedure set forth in Article V.

Second, there are rights provisions, which shield individuals from abusive exercises of governmental power. Examples include the First Amendment's Free Speech Clause and the Fourteenth Amendment's Due Process Clause.

Despite this conceptual separation, in practice structural and rights provisions interact. Indeed, the framers of the Constitution believed that the primary purpose of dividing authority among different levels and branches of government was precisely to ensure that no single actor became too powerful, and thus overrode individual rights. That is, they saw the structural constitution as itself a guarantor of rights.

For this reason, the framers did not think it necessary to include a Bill of Rights in the original text of the Constitution. Only after several states conditioned their ratification of the Constitution on the addition of a Bill of Rights was one added, in 1791.

Since then, lawyers, judges and scholars have understood both structural and rights provisions as integral to the Constitution. Nevertheless, the distinction is a useful one in analyzing issues of constitutional law.

Broadly speaking, rights cases pose the question whether the substance of some government action is permissible at all, while structural cases concern the question of whether the proper branch or level of government has acted.

In any given case, structural and rights provisions may both be in play — and sometimes may act in tandem. Take, for example, the controversial decision in Bush v. Gore. The unsigned majority opinion for five Justices relied upon a rights provision — the Equal Protection Clause of the Fourteenth Amendment — to invalidate the manual recount ordered by the Florida Supreme Court. But three of those Justices also believed that a structural provision of the Constitution — Article II's delineation of the role of state legislatures in selecting a President — compelled the same conclusion.

The rights/structure distinction, and the interaction of the two categories, provide a helpful framework for looking back at the Supreme Court's 2000-2001 Term.

Any account of the Term must, of course, begin with Bush v. Gore, but it hardly ends there. Indeed, in terms of its direct practical import, Bush v. Gore may not even prove to be the most important decision of the last year.

Had the Court stayed out of the election controversy or rejected George W. Bush's arguments on the merits, he probably still would have ended up as President, for two independent reasons.

First, the reports of journalist-conducted recounts suggest that while Gore might have won a recount under some standards, the recount ordered by the Florida Supreme Court (and stopped by the U.S. Supreme Court) would have resulted in a narrow Bush victory.

Moreover, even if Gore had won a recount under the standard ordered by the Florida Supreme Court, Bush still could have landed in the White House. That's because the Republican-controlled Florida legislature was prepared to certify Bush as the victor, regardless of the outcome of the recount. If that had happened, then Florida would have sent two competing slates of electors to the Electoral College, one for Gore and one for Bush.

Under a federal statute passed in the wake of the 1876 Presidential election (when Florida in fact did send competing slates of electors!), the election would have been decided by Congress. Because Congress would have made its decision after new Senators were sworn in but before Gore had to relinquish the Vice Presidency, a party-line vote in the Senate would have given Gore a one-vote edge. However, a party-line vote in the House would have come out for Bush.

In case of such a tie, the federal statute provides that the winner is the candidate whose slate of electors bears the signature of the chief executive of the state in question —here Florida Governor Jeb Bush. Whatever tensions have recently emerged between the Bush brothers over such issues as oil exploration off the Florida coast, it is difficult to imagine that Jeb would not have certified his brother as the official winner in Florida, and thus the nation.

In sum, the Supreme Court's decision probably was not, despite appearances at the time, the decisive factor in the Presidential election.

Nor is Bush v. Gore likely to prove especially important in terms of the doctrine it created. Quite the contrary, the anonymously authored majority opinion went out of its way to limit its application to precisely the issue before the Court that day.

To be sure, no court can completely control the use to which its precedents are later put, and lawsuits have already been brought on the strength of Bush v. Gore. But if those suits are to succeed, they must ultimately receive the blessing of the U.S. Supreme Court.

Arguably, then, the most important effect of Bush v. Gore is neither its immediate result nor its doctrinal impact but, rather, the disillusionment it occasioned among the population. There was and remains a widely-held view that the Justices decided the case according to their political, rather than their legal, preferences.

Even this impact is likely to be limited over time, however. Among the general public, Democrats tended to lose confidence in the Justices, but to a roughly equal degree, Republicans gained confidence.

In any event, the Court's prestige may well recover in short order. Former Wyoming Senator Alan Simpson was probably right when he argued that voters would not punish Republicans for impeaching President Clinton because "the attention span of Americans is which movie is coming out next month and whether the quarterly report on their stock will change." That point applies equally, if not more forcefully, to the public's attention span for Supreme Court decisions.

Our government is formally one of limited and enumerated powers. The Tenth Amendment reserves to the states those powers that the Constitution does not grant to the federal government. However, early in the nineteenth century, Chief Justice John Marshall announced that Congress's powers are to be construed broadly, rather than narrowly.

For example, although the Constitution does not expressly give Congress the power to create a national bank, in the landmark 1819 decision in McCulloch v. Maryland, Marshall said for the Court that such a power could fairly be inferred from, among other things, the express powers to regulate interstate commerce, to collect taxes, and to borrow money.

Over the course of our nation's history, the Court's view of the scope of federal power has waxed and waned. From the mid-1930s through the mid-1990s, the Supreme Court rejected nearly every claim that Congress had attempted to exercise a power not granted to it by the Constitution. Since 1995, however, the Court has been increasingly strict in its interpretation of Congressional power.

Between 1995 and 2000, the Court invalidated provisions of the Gun Free School Zones Act, the Religious Freedom Restoration Act, the Brady Handgun Violence Prevention Act, the federal patent statute, the Age Discrimination in Employment Act, and the Violence Against Women Act — all on the ground that Congress was intruding on ground reserved to the states. With only one exception, each of these cases was decided by the same 5-4 lineup as Bush v. Gore.

The states'-rights drumbeat continued in two cases during the 2000-2001 Term. In Bd. of Trustees of the University of Alabama v. Garrett (discussed at greater length in my March 21 column), the same five Justices invalidated the provision of the Americans with Disabilities Act that authorized private parties to sue states for violating the statute. In so doing, they rejected Congress's judgment that state-sponsored discrimination against the handicapped is a problem sufficient to warrant a federal response under Congress's power to enforce the Fourteenth Amendment's Equal Protection Clause.

In a second case, Solid Waste Agency v. United States Army Corps of Engineers, the "Federalism Five" also limited federal power. They ruled that the Clean Water Act does not empower the Army Corps of Engineers to regulate seasonal ponds in abandoned gravel pits that serve as habitat for migratory birds.

The Justices' reasoning did not directly rest on constitutional interpretation, but on principles of statutory construction that they read to mean that the Clean Water Act did not confer the particular power at issue.

In short, the Court remains sharply divided on ideological grounds in cases concerning the scope of Congress's powers. In contrast, the Justices' views about the role of federal administrative agencies are more complex. Of the three important cases concerning agency power, only one reflected the Court's ideological divisions.

That case was Alexander v. Sandoval, in which the five usual suspects ruled against an Alabama woman who sued to compel her state to administer driver's license exams in Spanish. The relevant Alabama agency received federal funds, and thus was prohibited by federal statute from discriminating on the basis of national origin. Moreover, a Department of Justice regulation made clear that policies that have the effect of discriminating, even if that is not their purpose, should count as discrimination too.

Sandoval claimed that the state's English-only rule had a discriminatory effect, and thus violated the regulation. But the Court held that she could not properly invoke the regulation; because it imposed requirements beyond those specifically contemplated by Congress, the regulation could not form the basis for a private suit.

In Whitman v. American Trucking Associations, the Justices unanimously rejected a challenge to a provision of the Clean Air Act that authorizes the Environmental Protection Agency to write air quality regulations that "are requisite to the public health."

A lower federal court had ruled that this provision was unconstitutional because the statutory term "public health" is so vague that the statute essentially amounted to a blank check to the E.P.A. to enact whatever rules it wanted. Thus, according to the lower court, Congress had impermissibly delegated its lawmaking power to the agency.

A unanimous Supreme Court disagreed. The Justices accepted the proposition that Congress cannot write blank checks to federal agencies. The people elect members of Congress, not bureaucrats, to decide matters of basic policy, and Congress cannot entirely pass the buck to bureaucrats. Nonetheless, the Court recognized what has been a fact of life for nearly a century: Congress lacks the time and expertise to write all of the detailed sub-rules needed to govern our complex society.

Accordingly, the Court held that as long as Congress gives the agency general guidelines, it has satisfied its constitutional duty. And, the Court held, the Clean Air Act gave the E.P.A. sufficient guidance to do its job.

Thus, the ruling in American Trucking, and the fact that it was unanimous, struck a decisive blow against conservative critics of the modern administrative state.

Finally, in United States v. Mead Corp., decided near the very end of the Term, the Court held that individual rulings by the Customs Service regarding tariff classifications are subject to full judicial review in federal court.

Under longstanding precedent, courts grant considerable deference to a federal agency's interpretation of the laws Congress requires the agency to administer. As long as the agency's approach is "reasonable," a court upholds it, even if the court might have reached a different conclusion on its own.

In Mead Corp., the Supreme Court ruled 8-1 that such deference does not apply unless there is some affirmative indication that Congress intended the agency ruling to carry the force of law.

Justice Scalia argued in his lone dissent in Mead Corp. that the ruling significantly qualified the basic deference principle — thus making it easier for courts to overturn agency decisions. Whether this is so remains to be seen. The other eight Justices believed that they were merely applying a settled legal principle, rather than importantly qualifying it.

Taken together, the Court's unanimous ruling in American Trucking and nearly-unanimous ruling in Mead Corp. show that the Court will give Congress wide latitude to accomplish goals that are within its powers. To accomplish these goals, the Court will allow Congress to delegate power to administrative agencies, as well as to specify to what extent those agencies' decisions will themselves have the force of law.

At the same time, though, the continuing fight over federalism means that Congress will only be able to aggressively pursue those goals that are within its enumerated powers — as defined by the Federalism Five.

In a nutshell, the Court continues to shrink the size of the playing field on which Congress may operate, but at least the Justices allow Congress to use modern equipment.

Read Part II of Professor Dorf's article.