Separation of powers
A new term of the U.S. Supreme Court opened this week. Given the cases the Court has announced it will take up, this term’s major theme will be wrangling the administrative state. The Court will decide whether the Consumer Financial Protection Bureau’s funding mechanism is constitutional, whether the National Marine Fisheries Service can create fines for fishing boats without specific Congressional authorization, and whether the SEC can bypass the federal courts by exclusively using administrative law judges to adjudicate claims. The decisions in these cases may roll back the holding in Chevron v. Natural Resources Defense Council, the case that created the Chevron deference doctrine. Chevron deference is the practice of federal courts deferring to administrative agencies in their rulings. Critics of Chevron deference argue that it violates separation of powers. It does. Hopefully, the Supreme Court will agree.
Crime
It is frequently argued that poverty causes crime. I have always felt that the opposite is true, that criminal behavior causes poverty. A recent study, which you can read here, seems to support my position. In this longitudinal study, researchers followed participants from birth to age twenty-three. They found that living in a low-income environment from birth to age five did not predict risky behavior at age twenty-three. However, living in an unstable environment prior to age five did. Neither environment mattered after age five. If a child is poor but his parents are around and behave properly, he’ll probably be okay. If his parents are criminals or otherwise unstable people, whether poor or not, he may be in for trouble.
Textualism
I recently wrote a piece titled Originalism and Indiana’s Abortion Law, highlighting the different interpretive approaches taken by Justices Molter and Goff of the Indiana Supreme Court. You can read it here. An opinion out this week, Indiana Right to Life Victory Fund v. Morales, is another example of the divergent philosophies of these two Justices.
At issue is an Indiana statute governing political contributions by corporations. The statute bans corporate contributions, except in a manner specifically authorized by the statute. The statute was drafted prior to the U.S. Supreme Court case, Citizens United, which found that corporations have a First Amendment right to make political contributions. The Indiana statute has not been updated since the Citizens United decision. Justice Molter writes the majority opinion in Indiana Right to Life Victory Fund, and finds that although the statute may be unconstitutional, it is unambiguous. He writes, “so it is no doubt time for the General Assembly to again update its statutes to account for this change in constitutional law. But we cannot provide a shortcut through judicial interpretation of unambiguous statutes.”
In contrast, Justice Goff writes, “our Court has, thus, adopted a predominantly textualist approach. This method of statutory interpretation will, in most cases, promote consistency and predictability in the law. In rare cases, however, too great a focus on the text can undermine our objective to ‘determine and give effect to the legislature’s intent.’”
Justice Molter is a strict originalist and textualist. Justice Goff favors what he refers to as a more “dynamic statutory interpretation.” It is interesting to witness this undoubtedly friendly debate between these two in recent opinions.