Does the Constitution Require Congress to Pass Particular Statutes "By Negative Implication"?:
Today the Ninth Circuit amended its earlier habeas decision in Irons v. Carey, and I was intrigued by the following dicta that Judge Noonan added to his concurring opinion:
The great writ exists, by negative implication, in Article I of the Constitution of the United States. It was initially understood to extend only to prisoners in the custody of the United States. It was extended by statute in 1867 to embrace prisoners of a state in custody in violation of the Constitution of the United States. It may be that the right to federal review of a claim of unconstitutional incarceration by a state is now to be considered an essential of due process just as the existence of federal courts to hear cases in numbers that it would be impossible for the Supreme Court to handle alone may be viewed as essential to due process. In each case, Congress exercising a power originally designed for application to the national government may lie under a constitutional obligation to exercise it more broadly for the preservation of the Constitution. In each instance, Congress would be called to enact a statute which is necessary.
  Does anyone know what that is supposed to mean? It sounds like Judge Noonan is suggesting that the constitution requires Congress to pass particular kinds of statutes when necessary "for the preservation of the Constitution" -- with the catch, I suppose, that Congress only knows when a statute is necessary "for the preservation of the Constitution" when a judge like John Noonan says so. Of course, it's one thing to say that a federal constitutional right exists, and therefore that courts can entertain a claim absent legislation. That's common enough. But it sounds like Judge Noonan is speaking of an affirmative obligation to enact a statute. Am I interpreting this passage correctly, and if so, am I wrong in thinking that this is a pretty radical idea? Unfortunately, Judge Noonan does not provide any citations in this passage.
''The great writ exists, by negative implication, in Article I of the Constitution of the United States.''

Can someone please point out this 'great writ' [which implies that it is written]?

7.13.2007 6:09pm
Radical but not unprecedented...e.g. Prof. Louis Henkin suggests that Congress is Constitutionally obligated to provide funding for certain of the President's foreign affairs duties in his Foreign Affairs and the U.S. Constitution treatise.
7.13.2007 6:09pm
Appears to be merely suggesting as true what Scalia and Thomas often remind us is not. Noonan seems to imply that if Congress decided to repeal the statutes providing for federal habeas appeal, it would be unconstitutional (because such a grant would be necessary to "preserve the Constitution"), but we know that state prisoners are not entitled to federal habeas appeal and Congress could choose not to provide it, if they wanted.

At least that's what I think he's saying.
7.13.2007 6:28pm
robertemmet (mail):
Certainly not new or extraordinaty as applied to the States. IIRC, some of the federal judges who micromanaged schools for years before declaring them unitary required the states to enact statutes funding programs that the judges deemed necessary to desegregate the schools.
7.13.2007 6:29pm
robertemmet (mail):
extraordinaty extraordinary
7.13.2007 6:30pm
I don't think this is a novel or controversial claim with regard to habeas corpus. The Judiciary Act of 1789 implemented a number of measures, like the creation of the lower federal courts, that the Framers had obviously expected to happen but had left to Congress to actually implement.

The Constitution says only that habeas corpus shall not be suspended; technically, it doesn't confer an affirmative right to habeas, but that's only because the nuts and bolts were left to Congress. The Framers surely would have been shocked at the suggestion that Congress could have opted not to grant any right to habeas corpus at all, even though the document doesn't formally obligate them to. Thus, habeas is a constitutional right, not merely a statutory right. See INS v. St. Cyr, 533 U.S. 289, 301 (2001) ("at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.'").

Even if the first Congress was "affirmatively obligated" to enact rules concerning habeas, that doesn't mean the concept is open-ended. After all, if you want to argue that Congress is obligated today to pass some statute "by negative implication" from the Constitution, you have to explain why none of the prior Congresses, including the first one containing many of the Framers, never understood they have that obligation. I don't see much prospect for this argument succeeding.
7.13.2007 6:34pm
Dave N (mail):
I was just wondering how a right that exists "by negative implication" could allow a federal court to order Congress to pass anything. The last time I looked, Article I gives Congress the power to pass laws and there is nothing in Article III that gives judges the right to order Congress to pass laws the judiciary finds desirable.

Of course, Marbury v. Madison decided that courts could overturn unconstitutional laws, but I don't think that Marbury, by "negative implication" gives the judiciary the power to order Congress to do anything.
7.13.2007 6:35pm
Can someone please point out this 'great writ' [which implies that it is written]?

Præcipimus tibi quod corpus A B in cusodia veatra detentum, ut dicitur, una cum causa capionis et detentionis suæ, quocunque nominee idem A B censeatur in eadem, Habeas coram nobis apud Wesim. Dec. ad subjiciendum et recipiendum ea duæ curis nostra de eo ad tunc et ibidem ordinary constigerit in hac parte, etc.

Glad I could help.
7.13.2007 6:36pm
Dilan Esper (mail) (www):
I don't think you can really say that the Constitution requires particular legislation-- as you say, courts can recognize a right absent legislation, including a right to file a habeas action.

But what MJG suggests to be false is actually true-- the Constitution has certainly been interpreted, plausibly, to prohibit the repeal of legislation once duly enacted.

Some examples include Reitman v. Mulkey (California fair housing laws could not be suspended by referendum) and Romer v. Evans (Colorado gay rights laws could not be suspended by referendum).

And indeed, that's how the Suspension Clause must work in practical effect. Congress has recognized the availability of a writ of habeas corpus; at some point, if they cut it back enough, they will have "suspended" it. At what point that occurs is obviously an argument that reasonable people will disagree about, but the idea that there is a constitutional limitation on the repeal of statutes would seem noncontroversial.
7.13.2007 6:37pm
M. Lederman (mail):
Orin: Check out this passage from John Marshall's opinion in Ex parte Bollman:

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

For further explication about how this could be so, see Jack's post here.
7.13.2007 6:40pm
clerker (mail) (www):
From a purely historical and structural point of view I think only two conclusions can be drawn: either (1) Judge Noonan is right, or (2) no jurisdictional grant is necessary for an Article III judge (or at least a Supreme Court Justice) to entertain a writ.

It took a great deal of talking at the convention just to get the Suspension Clause in the Constitution. Many (if not most) wanted no way to suspend the writ. Judges had been hearing cases based on the writ for years without any jurisidictional grant at that time, even in the face of English legislation specifically limiting it in some colonies.

For my money, Congress doesn't have to do anything for a court to hear a writ.
7.13.2007 6:59pm
Anderson (mail) (www):
Article II, Clause 7, directs that the President shall receive compensation for his services. This is yet another instance of Congress's being implicitly required to pass a law appropriating money for same. Perhaps Prof. Kerr's astonishment is misplaced.

(No such promise for Cheney, however.)
7.13.2007 7:00pm

...Glad I could help.


De gustibus non est disputandum.
7.13.2007 7:03pm

Interesting example. But it's possible to compensate someone without legislation; presumably if the officer can be compensated without legislation, there is no independent constitutional requirement that Congress pass legislation anyway.


Interesting. I would have thought that the writ was a common law writ, and that is existed in its common law form without some kind of enabling legislation. So Congress could not suspend the preexisting common law writ, but that wouldn't mean it had a Constitutional obligation to take the comon law writ and make it statutory. The Bollman language is interesting, but I guess it's not clear to me that "obligation" means legal obligation as compared to moral obligation, obligation to serve the public, etc.
7.13.2007 7:33pm
Alex650 (mail):
There seems to me to be a difference between the constitutional right to habeas corpus in the Bollman dicta and as suggested in Judge Noonan's opinion. Specifically, I think the former constitutional habeas right is static while the latter is dynamic.

Under the static theory, Congress is required to provide for some minimum habeas review--and, if it doesn't, the courts could imply that such a right existed anyway (we could probably make the same argument about having a right of action against the United States or a state for a taking). Implying a right of action from the Constitution, as Prof. Kerr said, is not particularly novel (though still rare).

The dynamic theory seems to be to be more novel. As I understand it, the idea is that even if Congress hadn't originally been required to extend habeas to apply to state governments, now that it has it cannot be suspended. The most textually sound version of this theory would read "suspend" in the Suspension Clause to result in a one-way ratchet; a mushier (or, more charitably, a more flexible) version would require that the extension of the habeas right be incorporated into Due Process somehow by becoming really old, or respected, or venerable, or relied-upon, or something like that.

I'm not trying to argue for one over the other--as I said, I think the dynamic/ratchet theory has considerable textual merit. I'm just trying to suggest the best two interpretations of a fundamental habeas right that I can think of.
7.13.2007 7:37pm
Anderson (mail) (www):
But it's possible to compensate someone without legislation; presumably if the officer can be compensated without legislation, there is no independent constitutional requirement that Congress pass legislation anyway.

How can Congress appropriate money to pay someone without legislation? Revenue bills must originate in the House, etc.

I actually agree w/ Profs. Kerr &Lederman that the common-law availability of the Writ may mean that no statute is necessary; but Noonan's position would seem to be a bit more moderate than that, when you think about it. He's trying to reject the freewheeling Habeas-R-Us position in favor of asking Congress to provide a statute.
7.13.2007 7:38pm
Shelby (mail):
it sounds like Judge Noonan is speaking of an affirmative obligation to enact a statute

If a dispute arises over the courts' constitutional authority to order the legislative branch to act, is it nonjusticiable?

M. Lederman,

It's not clear to me that the "obligation" of which Marshall speaks is a legal, rather than moral, one. Given when he was writing, is there a basis to incline to one meaning or the other?
7.13.2007 7:44pm
Thales (mail) (www):
As another example, doesn't Akhil Amar make the plausible argument that there's an obligation for Congress to establish at least one federal trial court, though of course the Constitution itself does not explicitly create any?
7.13.2007 8:07pm
Mark Field (mail):

How can Congress appropriate money to pay someone without legislation? Revenue bills must originate in the House, etc.

Remember, too, that Art. I, Sec. 9, cl. 7 requires that "No money shall be drawn from the treasury but in consequence of appropriations made by law..."
7.13.2007 8:19pm
Dave Hardy (mail) (www):
1. Great writ = habeas corpus.

2. Negative implication = the Constitution says nothing that would create habeas, but says that it may be suspended under some conditions, thus recognizing its existance.

3. The Constitution also vests the judicial power in the Supreme Court, and in such inferior courts as Congress may create, so Congress need not create any lower courts. It also provides that the Supreme Court's appellate jurisdiction "with such exceptions, and under such regulations, as Congress shall make." I'd assume there is some other implicit power to limit jurisdiction (i.e., the requirement of jurisdictional amount in diversity cases, which is nowhere mentioned in the Constitution). Back in the 70s, as I recall, there were calls to react to the Warren Court's innovations in criminal procedure by limiting its appellate jurisdiction and maybe by limiting habeas. The judge seems to be suggesting that moves of this type might meet a due process objection.

4. As to why we have to sit here and translate ... well, this is the Ninth Circus writing. Ditto with why a judge appears to think the Courts could order Congress to enact jurisdictional statutes to suit what they think their jurisdiction should be.
7.13.2007 10:03pm
Suppose Congress had created some federal courts, but had never mentioned habeas corpus in any of its statutes. Would the federal courts have been entitled to issue such writs as a matter of common law?

Also, how does a suspension of habeas corpus work with state courts? (Assuming Tarble's Case was wrongly decided, which it was.)
7.14.2007 12:38am
Surprised no one has mentioned it, but if there exists "a constitutional obligation to exercise [federal legislative power] more broadly for the preservation of the Constitution" then the elephant in the room becomes slavery.

There was vigorous debate in antebellum constitutional thought about the origins of slavery in law, and whether the Federal constitution recognized it as legal, or whether slavery was incompatible with its legal foundations but it simply closed its eyes the peculiar institution.

If the antebellum constitution mandated Congress to create legislation excercising authority over any state practice that violated the federal constitution, that would seem to resolve the antebellum debate a bit too well.
7.14.2007 1:49am
The "Great Writ" applies to those being held by the government without charges and no prospect of trial, e.g. Jose Padilla until last year. Congress can't suspend this except for rebellion or insurrection.

The writ almost all state prisoners (and federal prisonsers) use is to complain that, although they were charged, tried, and convicted, the state courts messed up some issue(s) of federal law during the trial. Congress could get rid of this writ tomorrow and it is not a suspension of habeas corpus as that term is understood in the Constitution.
7.14.2007 2:15am
Kent Scheidegger (mail) (www):
Anon asks, "Suppose Congress had created some federal courts, but had never mentioned habeas corpus in any of its statutes. Would the federal courts have been entitled to issue such writs as a matter of common law?"


Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.

Ex parte Bollman, 8 U.S. 75, 93-94 (1807) (Marshall, C.J.).

If no federal court could issue the writ, it would have been necessary to go to the state courts. State judges issuing writs to federal officers is obviously a problem, although some tried during the fugitive slave controversy.
7.14.2007 3:09pm
Anderson (mail) (www):
Wow, great quote, Kent.
7.14.2007 11:52pm
It is a very radical idea.

Congress has no obligation to create a single inferior federal tribunal.
7.15.2007 3:00am
George Weiss (mail):

he may mean that past legislation should be interpreted as being essential for the preservation of the constitution after it is passed.

not that anyone can tell congress beforehand what congress should do to protect the constitution.
7.15.2007 5:57am
Tom R (mail):
> "No money shall be drawn from the treasury but in consequence of appropriations made by law..."

Constitution = supreme Law of the Land.

Optional (non-constitutionally-mandated) appropriations require a statute law (I can hear FA Hayek spinning in his grave to hear a budget bill called a "law", but anyway...) which must originate in the House.
7.15.2007 11:16pm