Friday, October 11, 2002

Supreme Court I've already discussed next Tuesday's cases here and here. (Monday's a holiday; no court that day). Wednesday brings a great case – great at least for those of us who are law nerds, and interested in the interplay between the Rehnquist Court and the U.S. Congress. It's U.S. v. Bean. And it will be argued for the Respondent by blogger/Supreme Court practitioner extraordinaire Tom Goldstein. Although I'm finding this a very hard one to call, I'm sure that Tom will sleep better this weekend by virtue of my prediction that the Court will AFFIRM.

It's about guns, except that it's not really about guns but about the workings of Congress. As you probably know, if you've been convicted of a felony then (in general) you're not allowed to have a gun. Under 18 U.S.C. § 925(c), though, the Congress said some years ago that you could petition the ATF to restore your gun privileges – and if ATF denied your application, you could file a lawsuit to have a judge review the ATF's decision. But subsequently, for about a decade now, the Congress has – in each year's budget statute(s) – prohibited ATF from spending any money (i.e., from doing anything) on processing those applications. So they sit. The question in this case is whether this means that Mr. Bean and every other applicant is hosed, or whether they can call this a constructive denial by ATF and file suit to have that "denial" reviewed by a judge. The Fifth Circuit said that judicial review is available – that the appropriations statutes haven't repealed the statutorily-granted right to judicial review. So the Fifth Circuit, affirming the trial court, gives Mr. Bean his guns back because he's a good fellow and not one of them real bad sort of ex-cons.

If you think that you know how the case should come out, stop for a second. Pretend that it's not about getting the right to own a gun, but the right to get marijuana for medicinal purposes. Imagine that there's a statute that says you can apply for a permit for medical pot, and can get judicial review of that denial; but then the Republican-dominated Congress prohibits the agency from processing applications. Does this mean that everybody's hosed, or that judges can grant the applications? Do you feel the same way as you did when it was about guns? If so, good for you – you're "thinking like a lawyer," as they say. (Unless you really love both guns and marijuana, or really hate both of them, and are just doing result-oriented thinking. If so, go to law school, but leave your pot and pistol behind.)

My own impulse – coming from the perspective of a guy whose livelihood is based on the model of judges being able to review things to make sure that they're done fairly – is that judicial review is so important to a well-functioning non-arbitrary government, that avowedly not doing anything on an application, for the foreseeable future and maybe forever, is tantamount to a denial and therefore Mr. Bean can go on to court (as the statute says he can, when his application is denied). I have something of an impulse to say to the Congress, "If you want to repeal the darn statute, then do it. But until you do, judicial review remains available because that's what the statute says."

But I talked about this case with a close friend who is high-up on the staff of a Congressional Appropriations Sub-Committee, and it seemed quite obvious to him – based on what he does for a living, and how he understands the world of laws – that the "no-appropriations-for-THAT" statutes were just as good as a repeal of the whole statute. The way he sees it, there's no "denial" and therefore no place for judicial review unless the ATF actually reviews the application, and that's what Congress told them not to do. When I asked him why the Congress doesn't just repeal it if they want to, he said (more or less) "Our work here is messy, just as yours is. That's just the way it works."

My prediction of affirmance is largely based on two things: (1) the Supreme Court is made up of lawyers, and lawyers tend to think that – other things being equal – the availability of judicial review of administrative action and inaction is important to keeping government rational; and (2) some of our Justices seem to take a bit of joy in poking Congress in the eye from time to time, and so it's quite easy to see some of these Justices saying "we don't care, really, how messy your system of committees and subcommittees and budget riders and whatnot is; if you want to repeal a law, you've got to really repeal it."

posted by sam 2:22 PM 0 comments

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