Within the Scope

Blogging on Administrative Law and the Public Sector

Saturday, May 16, 2009

Take Homes from The Big Easy

As noted in an earlier post, I had spent much of the last few months preparing for a presentation that I was scheduled to give at the American Bar Association Public Contract Law Section’s 4th Annual State and Local Procurement Symposium. (That post, and a copy of the paper I presented, are accessible here).

The focus of this year’s conference was the regulatory and compliance struggles that are associated with public contracting before, during and after a disaster strikes.

It was a joy to be a part of the faculty for this event and to be in New Orleans – a city that is still working on its recovery from recent Hurricanes – for the very fast-paced and jammed-packed set of panels.

Without a doubt, a key theme that ran throughout the sessions was the value of advance planning – and better still, to have mature contracting and documentation systems in place that anticipate the very type of disasters that are likely to strike. This is because the federal regulatory structures on relief, recovery and reimbursement are so complex – and in many respects, inappropriate to the exigencies – that human suffering will be magnified greatly, and enormous financial losses for localities will follow, if the needed systems are not developed in advance.

Several of the speakers, with more than a little pathos, noted that even following the specific purchasing directions of federal officials will not prevent other or more superior officials of the Department of Homeland Security from later disallowing reimbursement applications from local governments.

The take-home advice from the experts was clear: Every state should have employees that speak “FEMA-ese;” the special dialect of the Federal Emergency Management Agency. Not having several folks who are fluent in this special tongue can be enormously costly, and increase the time and local resources that are needed to recover after a disaster has struck.

Federalism and the Predatory Offender

In a remarkably interesting opinion issued on Wednesday of this week, the U.S. Court of Appeals for the Eighth Circuit reversed a lower court’s decision that had declared the civil commitment portions of the Adam Walsh Act unconstitutional. Last May, then-Chief Judge of the U.S. District Court for the District of Minnesota, Paul Magnuson, concluded that the civil commitment provisions of the Act exceeded Congress’ powers under the Commerce Clause.

Disagreeing, the appellate panel concluded that it was appropriate for federal authorities in Minnesota to indefinitely detain Roger Dean Tom for treatment, at a time that Tom was otherwise eligible for supervised release from prison. The panel concluded that:

[I]t is not unreasonable to assume that upon completion of any prison term convicted sex offenders will travel outside of the state of incarceration, and may well have the intent to commit a federally prescribed sexual offense. As we have already explained, Congress is empowered to regulate the channels of interstate commerce and people or things in interstate commerce to prevent their use for immoral and illegal purposes. [The civil commitment provision of the Adam Walsh Act] appears to be "aimed at preventing the specific harm to the community proscribed by the [federal sex crime] statutes.”
To my mind, the panel decision raises three interesting and noteworthy questions.

First, will either an en banc panel of the Eighth Circuit or the U.S. Supreme Court take an interest in this topic? In upholding the civil commitment provisions, the deciding panel sets up a potential circuit conflict with the U.S. Court of Appeals for the Fourth Circuit. In February of last year, in a case denominated as United States v. Comstock, a panel of the Fourth Circuit ruled that the civil commitment portions of the Adam Walsh Act do “indeed lie beyond the scope of Congress’s authority. The Constitution does not empower the federal government to confine a person solely because of asserted ‘sexual dangerousness’ when the Government need not allege (let alone prove) that this ‘dangerousness’ violates any federal law.”

Second, if the Eighth Circuit panel is correct, and involuntary sequestering an offender for treatment is permissible so as to guard against the danger that he or she may use interstate mail, highways, or telephone service as part of the commission of a future crime; what would be the outer reaches of Congressional power in this area? Would it be the Third Amendment – namely, that Congress could not oblige federal agents to be housed with convicted sex offenders who are under supervised release – but everything else would be permissible?

Lastly, a large – even a helpful – federal role in the treatment and detention of violent offenders begs the question of whether the approaches developed by agencies in Washington, D.C. are the best and the most effective. In my view, perhaps in a Lake Wobegon sort-of way, Minnesota’s sex offender treatment and supervision practices seem “above average;” and Congress' prescriptions in this area seem more like lowest-common-denominators amongst the states than “best practices.” I doubt whether Congress is likely to improve upon Minnesota's methods and results.

The appellate panel’s complete analysis in United States v. Tom is accessible here.

Note: In a parallel decision, also issued on Wednesday, the Eighth Circuit turned away the commerce clause, APA and non-delegation doctrine challenges of a Nebraska offender to the registration requirements Adam Walsh Act. While the challenges to the registration provisions were less in doubt than the challenges to civil commitment provisions, the panel's decision in United States v. Hacker, is accessible here.

Thursday, May 07, 2009

Looking for Law in All the Wrong Places

I was vacationing in Israel when the U.S. Supreme Court handed down its decision in Federal Communications Commission v. Fox Television Stations, Inc. And while details as to the holding and rationale announced by the High Court were a bit sketchy in news accounts at that time – even from the plaintiff Fox Television – since my return to the U.S., I have a chance to spend some time with the opinion.

The Court's opinion is a worthwhile read for administrative lawyers of all stripes – and not merely for those attorneys who advise broadcasters (or use “fleeting expletives”) as part of their day jobs.

Yet, there is a catch. The administrative law question presented to the Court was fairly straight-forward: Namely, had the Federal Communication Commission adequately explained and justified its pronouncement of a stricter, and less-forgiving policy, on the airing of “fleeting expletives” during network television broadcasts? Five justices of the Court concluded that the FCC had done so. In the view of the Court majority, when jettisoning the older, more flexible policy on the use of objectionable language during telecasts, the FCC reasonably concluded that “a safe harbor for single words would ‘likely lead to more widespread use of the offensive language ….’”

For me, the far-more interesting set of readings were the opinions as to which no other Justice subscribed. In Part III-E of Justice Scalia’s majority opinion, from which the other justices in the majority retreated (most likely because of its sharp and brusque treatment of the dissenting Justices), Scalia holds forth on the “increased subservience” of independent agencies to Congressional direction, the level of scrutiny to be rendered by the federal courts as to brand new regulatory approaches, and the differences between notice-and-comment rulemaking and a review of agency adjudicatory decisions. As a former Chairman of the Administrative Conference of the United States, and a former editor of Regulation Magazine, Justice Scalia is simply without a match at the Court on matters of administrative law.

Likewise interesting were the lone concurrences of Justices Thomas and Kennedy. Justice Thomas, noting the changes that have occurred in media, broadcasting and information technology during the past 40 years, expressed doubt over the FCC's assertion of authority to regulate broadcast programming in ways that are different from transmission of the very same content on cable systems, the internet or in print. Concludes Thomas: “I am open to reconsideration of Red Lion and Pacifica in the proper case.”

For his part, Justice Kennedy urges a continued program of very “searching and careful review by the courts” of federal agency actions under the Administrative Procedures Act – seemingly, because of the dangers that are invited by Congressional delegations of decision-making authority to these agencies. Writes Justice Kennedy: “The dynamics of the three branches of Government are well understood as a general matter. But the role and position of the agency, and the exact locus of its powers, present questions that are delicate, subtle, and complex. The Federal Government could not perform its duties in a responsible and effective way without administrative agencies. Yet the amorphous character of the administrative agency in the constitutional system escapes simple explanation.”

So, if an opinion that explores both the fault lines at the High Court on separation of powers issues and some important contemporary debates in administrative law, is of interest to you, the opinion in Fox Television Stations is a very worthwhile read.

Just remember that the really good stuff is in all of the wrong places.

The Court’s complete analysis is accessible here.