Valazquez

[susan bandes]

Marty Lederman's question helped crystalize my impression that what
concerned Justice Kennedy in Valasequez was not so much the limit on the
lawyer's ability to ply his trade (which would be most closely analogous to
the doctor's parallel ability in Rust), but on the court's ability to hear
the entire case and decide "what the law is," ala Marbury. Marty asks how
the offending limitation would differ from a Congressional restriction on
the courts' ability to hear certain types of claims. I think it's the
difference between, for example, Ex Parte McCardle, in which an entire
source of jurisdiction was removed from the court's purview, and US v Klein,
in which Congress expected the federal courts to decide the case and place
their imprimatur on the decision, yet sought to manipulate the result and
place certain outcomes off limits. The courts continued to hear welfare
suits, but couldn't consider constitutional arguments in those suits.

I'm not suggesting that this is a good way to distinguish Rust, only that it
seems to jibe with Justice Kennedy's language. I think a doctor could easily
find it equally objectionable to be expected to give medical advice, which
patients may assume is complete and satisfies his professional standards,
and yet to have certain types of advice or information declared off limits.
Perhaps the dissent (Justice Rehnquist, was it?) has a point when he
suggests (something to the effect that) the distinction is very much about
the majority's heightened ability to see the dangers to the integrity of the
court system.

Susan Bandes


At 03:14 PM 3/2/2001 -0400, Marty Lederman wrote:


"I think a very pronounced thread in Velazquez is that Congress's very
objective here (unlike in Rust?) is impermissible, or at least subject to
heightened scrutiny.  As Kennedy sees it, that objective is "to insulate the
Government's laws from judicial inquiry," slip op. at 11 -- indeed, even to
insulate state laws from suits brought to bring state law into conformity
with federal requirements (p.9)!  Again on page 13:  "Here, notwithstanding
Congress' purpose to confine and limit its program, the restriction operates
to insulate current welfare laws from constitutional scrutiny and certain
other legal challenges, a condition implicating central First Amendment
concerns."  See also p.14:  "The attempted restriction is designed to
insulate the Government's interpretation of the Constitution from judicial
challenge. . . . We must
>be vigilant when Congress imposes rules and conditions which in effect
insulate its own laws from legitimate judicial challenge.  Where private
speech is involved, even Congress' antecedent funding decision *cannot be
aimed at the suppression of ideas thought inimical to the Government's own
interests*."
>
>(Query:  If Kennedy really means that Congress may not "design[]" laws "to
insulate the Government's interpretation of the Constitution from judicial
challenge," would it follow that Congress cannot limit the federal courts'
jurisdiction to hear certain sorts of clams based on Congress's disagreement
with the courts' constitutional views?  I sense more than a hint of Boerne
here -- nothing offends Kennedy more than a legislative attempt to call into
question the courts' constitutional judgments.)"


>