THE SEPARATION OF POWERS UNDER ATTACK
The United States Supreme Court is currently considering a number of important cases, which concern such hot-button issues as abortion and gay rights. But one case of import now on the Court’s docket has received relatively little attention, perhaps because it involves a somewhat arcane legal issue. However, the case has potentially far-reaching implications for the principle of separation of powers generally, and for the preservation of an independent judiciary in particular. That case, Miller v. French , which should be decided some time in June or early July, is the subject of this memorandum.
What Are the Facts of Miller v. French ?
The Pendleton Correctional Facility is a state prison Indiana. For several years, Pendleton has been operating under an injunction issued by a federal district court. The injunction is the result of a class action brought by Pendleton inmates who contended that many prison conditions violated their constitutional rights. The federal court agreed with some of the inmates’ claims and issued an injunction that orders prison officials to correct the unlawful conditions and to institute certain procedures to guard against further violations. The injunction has been modified from time to time to reflect changes in prison conditions.
In 1996 Congress passed the Prison Litigation Reform Act (PLRA), which contains a number of provisions that restrict the ability of prisoners to challenge unconstitutional prison conditions in federal court. One of these provisions is at issue in Miller v. French That provision operates as follows: (1) the PLRA allows prison officials who are subject to federal court injunctions regarding prison conditions to file motions seeking the termination of the injunction; (2) the PLRA also provides that the federal court must terminate the injunction unless it specifically finds that there are continuing conditions that violate the Constitution; (3) section 3626(e)(2) of the PLRA provides that the federal court must decide the termination motion within 30 days of its filing. The court may extend this deadline for an additional 60 days “for good cause”, but it is not allowed to do so merely because it has a heavy caseload; (4) if the court fails to meet the 30/90 day deadline for deciding the termination motion, the court’s injunction automatically terminates in full until the motion is decided.
Officials at Pendleton filed a termination motion pursuant to the PLRA. The inmates’ attorneys responded immediately by asking the court to issue a temporary restraining order staying the operation of section 3626(e)(2)’s deadline provision. The court granted this request, and the Pendleton officials appealed. The U.S. Court of Appeals for the Seventh Circuit upheld the district court and found that section 3626(e)(2) is unconstitutional. (Decision reported at 178 F.3d 437 (7th Cir. 1999)). This ruling is now before the Supreme Court.
How Should the Supreme Court Decide Miller v. French ?
The Supreme Court should affirm the ruling of the Seventh Circuit and hold that section 3626(e)(2) violates the Constitution. This is because section 3626(e)(2) clearly runs afoul of a basic principle of the doctrine of separation of powers, a doctrine enshrined in the Constitution’s division of governmental responsibilities among three branches of government: legislative, executive and judicial. The principle at issue is this: There are certain functions that are unique to each branch of government such that their operation cannot be negated by another branch of government.
A function of government that belongs to the judiciary alone is the power to decide legal disputes other than impeachment proceedings. Two constitutional principles flow from this: (1) another branch of government cannot tell a court in whose favor a particular case should be decided, and (2) once a court has decided a particular case, another branch of government cannot overturn or suspend that judgment.
In passing section 3626(e)(2) Congress has violated these principles. Congress can certainly enact substantive laws that provide courts with the rules of to apply in particular cases. Thus, when deciding a case brought under the Americans With Disabilities Act, for example, a court must use the standards of liability set forth in that law.
In passing section 3626(e)(2), however, Congress has done something quite different. Here Congress has not changed the substantive law that governs prisoner rights suits. (Indeed, such suits are decided according to the Constitution, which Congress cannot change, save for its role in the amendment process.) What section 3626(e)(2) does is tell federal courts: “Decide a termination motion within 30, or at most, 90 days or you must act as if the motion has been decided in favor of prison officials, at least until you issue your own decision.” That is, if a federal court misses the 3626(e)(2) deadline, Congress forces the court to overturn its previous judgment in favor of the prison inmates, at least until the court issues its own decision, which, given the complexity of many prisoners’ rights suits, could take several months.
Congress cannot do this. It in fact tried to do something quite similar recently and was rebuffed by the Supreme Court. The situation was this: In 1991 the Supreme Court decided that, in most cases, an individual must bring suit within a year of having discovered possible stock fraud. Pursuant to this decision, federal courts dismissed numerous pending stock fraud cases on the ground that they had been filed too late. In response, Congress passed a law mandating that these dismissed cases be reinstated. That is, Congress did not alter the substantive law of securities fraud cases. Rather, it passed a law ordering that particular case dismissals be overturned.
In 1995, the Supreme Court declared this law unconstitutional. The Court held that the law overturned final judgments in the cases that had been dismissed, and therefore clearly violated the separation of powers. When a judicial decision is issued, said the Court, it “becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than the court said it was.”
The same situation exists with respect to section 3626(e)(2). There is no question that an injunction of a federal court is considered to be a final judgment of that court unless the court itself alters the injunction. And, as stated above, Congress has not changed the substantive law which governs prisoner rights cases. What it has done is pass a law overturning a final judgment, unless courts meet a certain deadline. The court is told to reverse a decision in favor of prison inmates and decide in favor of prison officials. Until the court renders its own decision on the termination motion, it is powerless to enforce the previous judgment it has issued. In sum, in passing section 3626(e)(2) Congress has clearly exceeded the scope of its powers and invaded the unique powers of the judicial branch.
Indeed, by enacting section 3626(e)(2), Congress has overstepped its powers even more egregiously than in the case of the securities fraud statute. As already mentioned, the district court’s injunction was issued to correct violations of constitutional rights, which, again, cannot be altered by Congress save for the role that it plays in the amendment process. But section 3626(e)(2) in fact effects such an alteration, at least in the case where a court fails to meet its deadlines. Allowing section 3626(e)(2) to stand would effectively allow Congress to issue a decision in a constitutional case in the guise of setting procedural rules.
What Is at Stake in Miller v. French?
It should be emphasized that Miller v. French is not specifically about the rights of prison inmates. It is about something much more fundamental because the principle of separation of powers is the very core of our constitutional system. In The Federalist, James Madison declared “the political maxim that the legislative, executive, and judiciary departments ought to be separate and distinct” to be an “essential precaution in favor of liberty.” As shown above, section 3626(e)(2) violates this principle because it is an attempt to use legislation to impose certain outcomes in particular court cases, which are supposed to be decided by judges. That it does so in a case involving constitutional rights is particularly disturbing.
If the Supreme Court does not declare the statute unconstitutional, the ramifications could be great. Many cases involving violations of constitutional rights are brought by parties who cannot get relief through legislative action because they are members of minority groups or are politically unpopular. The injunctive orders that courts issue to ensure respect for those rights are often no less unpopular. Congress may therefore be tempted to thwart controversial decisions by imposing deadlines (or other procedural requirements) that courts cannot realistically be expected to meet. But the Constitution gives judges the power to decide cases, not the Congress. For the sake of our constitutional rights, and the independent judiciary that we rely on to protect them, Congress should not be allowed to undermine the separation of powers.
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW
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