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Textualism

This week the U.S. Supreme Court heard a case involving Indian Tribes and the U.S. Bankruptcy Code. The outcome of the case, Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, will turn on textualist interpretation.

In July 2019, Brian Coughlin took out a $1,100 payday loan from Leadgreen, a wholly owned subsidiary of the Lake Superior Chippewa Tribe. Coughlin defaulted on the loan, then filed for bankruptcy. The Tribe continued collection efforts despite the automatic stay on collections imposed when bankruptcy is filed. When Coughlin attempted to enforce the automatic stay, the Tribe argued that U.S. Bankruptcy law does not apply to Indian Tribes.  

As a general rule, governments enjoy sovereign immunity from civil suits. One exception to this is the U.S. Bankruptcy code, in which Congress abrogated sovereign immunity, or attempted to, for all governments so they would be included in proceedings with all other creditors. The statute in the U.S. Bankruptcy Code in question states, “notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit…” The statute goes on to define “governmental unit” to mean, “United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States, a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.”   

Coughlin argues that the long list in the statute is intended to cover every possible governmental entity, especially with the catchall phrase at the end, “other foreign or domestic government.”

The Tribe argues that the U.S. Bankruptcy Code does not include Indian Tribes because the statute could have easily listed “Indian Tribe,” but did not. Indian Tribes have a long history of being imprecisely defined in American law. They are neither completely foreign nations nor are they completely domestic governmental units. The Tribe points to this uncertain treatment in prior cases to argue that even the catchall phrase does not apply.  

Given the current makeup of the Court, we can likely look forward to a good example of textualist analysis when this opinion is released.

Separation of powers

This week the U.S. Supreme Court agreed to take up a case involving separation of powers issues. The case, Carnahan v. Malony, arises from a federal law known as the “Seven Member Rule.”

The “Seven Member Rule,” by federal statute, says that any seven members of the House Committee on Oversight and Accountability can request and receive information by subpoena from executive branch agencies. This is significant because it means that even the minority party, or a minority of the minority, on a committee can initiate investigations through the use of the rule.

The Seven Member Rule was enacted in 1928, but has been largely ignored by Presidential Administrations ever since. Executives have traditionally only responded, if at all, to subpoenas issued by the majority party in Congress.

This case arises from a 2017 records request sent by seven members of the House Oversight Committee to the executive branch’s General Services Administration seeking information about the lease of the Government’s Old Post Office building to former President Donald Trump’s real estate company. The Trump administration refused to turn over the records. Since that time, the Biden Administration has refused to comply with similar requests, putting Trump and Biden in agreement on this issue, perhaps the first and only time they have ever agreed on anything.

In the lower court cases, the Administrations have argued that “disputes involving Congressional efforts to seek official Executive Branch information occur on a regular basis. Inserting courts into those disputes would transform that longstanding process and allow a ‘fringe’ minority of Congress to compel court compliance.” Further, the administrations have argued that seven members of Congress do not have standing to enforce the institutional interests of Congress.

The problem for the Executive Branch is that the Seven Member Rule is not just a tradition or a Congressional Rule, but it has been codified. The U.S. Supreme Court certainly has jurisdiction to review acts of Congress. The lower federal courts have issued split opinions on this issue. The U.S. Supreme Court opinion is expected next term.