Judge Molloy “Would Hold” Senator Tester’s Wolf Rider Unconstitutional, Maps Appeal to SCOTUS if Needed


(Note: starting after this article’s note, I will no longer be linking to Lee Enterprises online newspaper articles, as they have instituted a paywall that prevents readers here from accessing those articles unless they have paid the subscription fee. Beings as I have not, and will not pay the fee, I will be linking to information from alternative sources).

“… A tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law.”

“… A talisman that ipso facto sweeps aside Separation of Powers concerns.”

“Policy changes of questionable political viability, such as occurred here, can be forced using insider tactics without debate by attaching riders…”
— Federal District Court Judge Don Molloy

In a stunning decision with a scathing commentary, Federal District Court Judge Don Molloy declared that Senator Jon Tester’s wolf rider supporting delisting of wolves in Montana and Idaho, in his opinion, is unconstitutional. He also found that a 9th Circuit Court precedent prevented him from ruling against the rider, and was forced to let Tester’s controversial rider stand.

Kieran Suckling, executive director of the Center For Biological Diversity, one of the groups that challenged the rider, was quoted in the Lewiston Tribune article:

“I’ve never seen anything like it,” he said. “He is not only intimating the wolf rider is unconstitutional and the 9th Circuit is wrong but he is laying out a road map on how to appeal his own ruling and take it all the way to the Supreme Court. He does everything but buy us a bus ticket to Washington, D.C.”

Judge Molloy expounds on the role that the doctrine of Separation of Powers played in his decisions, and is must reading for any who would critique the power of Congress. And his analysis sets the framework for the inevitable appeal to the 9th Circuit.

I’ve had much to say here and elsewhere about Senator Tester’s use of riders to pass policy and this court case, so I needn’t go there again. You can read the Judge’s Final Order for yourself to get a sense of how upset he was that he was constrained from upholding the plaintiff’s case against the constitutionality of Tester’s rider process.

Here are some pertinent statements from the Judge about Senator Tester’s wolf rider:

“This case presents difficult questions for me. The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law. The principle behind the rule of law is to provide a mechanism and process to guide and constrain the government’s exercise of power. Political decisions derive their legitimacy from the proper function of the political process within the constraints of limited government, guided by a constitutional structure that acknowledges the importance of the doctrine of Separation of Powers. That legitimacy is enhanced by a meaningful, predictable, and transparent process.

In this case Defendants argue—unpersuasively—that Congress balanced the conflicting public interests and policies to resolve a difficult issue. I do not see what Congress did in the same light. Inserting environmental policy changes into appropriations bills may be politically expedient, but it transgresses the process envisioned by the Constitution by avoiding the very debate on issues of political importance said to provide legitimacy. Policy changes of questionable political viability, such as occurred here, can be forced using insider tactics without debate by attaching riders to legislation that must be passed.

You can read more excerpts from the Judge’s Order below the fold:

“The Separation of Powers requires us to discern the difference between arguments of policy and arguments of principle. It is the function of Congress to pursue arguments of policy and to adopt legislation or programs fostered by recognizable political determinations. It is the function of the courts to consider arguments of principle in order to enforce a statute, even if the statute itself stems from an altered policy. This distinction holds true even when the legislative process employed involves legislative prestidigitation…”

“Fairness is dethroned and confusion is crowned queen when the laws enacted pursuant to established public policy are rendered inapplicable on an ad hoc basis…”

“If I were not constrained by what I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits, I would hold Section 1713 [Tester’s rider] is unconstitutional because it violates the Separation of Powers doctrine articulated by the Supreme Court in U.S. v. Klein, 80 U.S. 128 (1871)…”

“Structurally the doctrine of Separation of Powers is still viable, but in my view it is violated when there is an effort [Tester’s wolf rider] to change a political policy by resolution that is not clear, does not identify what law is specifically being changed, does not state what rules apply in the future, and is inconsistent with the underlying political purposes of the law that is being changed…”

“The heart of the debate turns on whether Congress can insert into its directive a nonspecific phrase that by itself sweeps aside concerns that Congress is infringing upon the judicial power. When laws are amended by implication, questions can remain regarding how the law was changed. The political process requires Congress to take stances on issues. It is not the role of the judiciary to write the law. In my view, the Ninth Circuit’s deference to Congress threatens the Separation of Powers; nonspecific magic words [like those in Tester’s rider] should not sweep aside constitutional concerns… The language “without regard to any other provision of statute or regulation” operates as a talisman that ipso facto sweeps aside Separation of Powers concerns.”

While there are those who will cheer this decision as upholding Senator Tester’s wolf rider, this story is far from over, and most likely will be appealed to the 9th Circuit Court. I’m sure I’ll have much more to write about this issue in the future.

Quick update: The Alliance for the Wild Rockies announced on KXLH News that they and two other plaintiffs (Friends of the Clearwater and WildEarth Guardians) were going to appeal Molloy’s ruling:

Alliance for the Wild Rockies Executive Director Mike Garrity says his organization is taking the suit to the 9th Circuit Court of Appeals.

“This is about protecting wildlife but also standing up for citizens rights to make Congress follow the Constitution. So we think if Congress can do it to the environment, they can do it to any issue. If Congress doesn’t like a particular issue they can just step on the Constitution and tell the courts that what they did was wrong,” Garrity says.

In the groups’ press release about the appeal, WildEarth Guardian’s rep Nicole Rosemarino had this to say:

“The rider goes against a bedrock principle of our democracy: checks and balances between branches of government,” stated Nicole Rosmarino of WildEarth Guardians. “Legislators can’t pick off specific court decisions they don’t like. That’s not fair for the wolf, and it’s certainly not good for our democracy.”

  1. ladybug

    It may be worth noting that it was CBD and nine more of the original 14 wolf relisting plaintiffs who did a 180 settlement of a winning case to accommodate Tester’s political whining. Is CBD back on track, or simply trying to salvage what it can of its reputation, membership and funding? Perception is realilty, right? If I was a wolf, I’d be wary of groups with big budgets and “insider” status. The three home-grown groups that never waivered will read all about it in Lee outlets quoting representatives who sold out wolves for politics and money. No suprise, it’s par for the course.

    • JC

      Good questions. We’ll let the dust settle for a while, then tackle them and some others. Fortunately, there’s some “little groups” riding herd here, too. ;-)

  2. There is a way around the pay-wall, handily provided by Le”s own employees.

    Reddit to the rescue.

  3. jack ruby

    Judge Molloy did not ‘find’ it to be unconstitutional. It is pretty clear he thinks it should be but he is bound to obey the 9th Cir precedent which clearly finds that it is Constitutional. Getting past the legal hair splitting it seems the Judge is probably mostly just annoyed about the fact Congress pulled the rug out from under him…but as he says in his decision higher courts have ruled that they can do what they did. Not to say that it was the right thing for Congress to do by any means but I think this seperation of powers argument is not going anywhere.

  4. ladybug

    jr (resident clairvoyant),

    Amusing speculation. “Hair splitting?” If this were not a legal debate of substance would it not have been dismissed at the get-go? And I seriously doubt Molloy ruled one way or the other because he was “…probably mostly just annoyed…” If that were true isn’t it more likely he’d make ’em pay, and just let the 9th Circuit have its say?

    • jack ruby

      1) It pretty much was dismissed at the get-go…you could even say it was ‘summarily’ dismissed. This lawsuit was only filed a couple months ago thats actually pretty fast work by the court.

      2) I think its splitting hairs to claim its unconstitutional because the underlying legislation was not ‘amended’ when the rider states ‘notwithstanding’ other legislation. At the end of the day Congress has the authority to do what they are doing its a question of language in the rider. So even if Molloy ruled in their favor they could still pass a rider and just insert different language. The substance of the real issue at play…to me..is the wisdom of what Congress did not the Constitutionality of it.

      3) I don’t think Molloy ruled one way or the other because he was annoyed. I think the lengths he went to in explaining the faults which he personally found with the rider (much of which were not cited to any legal authority which pretty much shows its his own personal opinion) showed he was pretty annoyed. Especially in light of the entire background here and the fact the 9th Cir was already concerning an appeal of a case which I think this rider was intended to moot. Judge Molloy has a reputation as being a pretty hard nosed guy…if I was him I would have been annoyed at what Congress did too. I think he made a sound decision and really the only one he could make. The legal precedent was pretty clear.

  5. Escapee

    This Tester feller – turns out to be a cloaked right winger. Either that, or he sold out once elected. Either way, you’d have to agree that he’s third rate at best.

  6. Montanans deserve better than to be undermined by our own Senator. Native Americans have been returned to second class citizenship with his total disregard for our spiritual traditions; and are deprived of our constitutional right, violating our right to equal protection guaranteed by the 14th Amendment.

    If Tester wants to operate in secrecy, let him join a crime family; he seems to have forgotten he works in the people’s house.

    • Melinda Gopher, I mean absolutely no offense, but it would help a great deal if you could be more specific in your allegations.

      • stumpy

        Why don’t you just go read her site and find out for yourself?


        Plenty of specificity there if you care to go and look.

        No offense…

        • ‘Cause she couldn’t seem to link it? That still doesn’t explain her claims here.

        • ~sigh~

          Look. Not to put too fine a point on it, but as regards Melinda Gopher’s complaint, isn’t this nation supposed to recognize a separation of policy and religion? Or are some spiritual traditions supposed to be better than others?

          The people of Montana have spoken very clearly that they want local control of wolf populations. Right or wrong, Tester served that. I would like to read, sincerely, justifications for how “Montanans have been undermined”, how Native Americans have been returned to second class citizens and how they’ve been denied their Constitutional rights. These are not untoward or out of line requests for information.

    • wolves are not my issue but i happen to agree with the wolf hunt this fall. MTF&W are supposed to control species and those in favor of the continuation of the wolf as a good part of our ecosystem should allow them to do so using wildlife biology instead of angry political gatherings and emotional outcries, because obviously, if we just keep protecting wolves until they become too numerous to control with regular hunts, we will doom them. the wolf haters will win.

      that being said, i agree with ms gopher that senator tester does seem to prefer closed door meetings with cronies and political allies rather than risk open format dialogue with anyone he senses may disagree with him. i am sure ms gopher feels that native american issues do not really register with him and may feel just as much an outsider as do wilderness proponents when it comes to gaining the ear of the senator.

      and i realize that controlling the dialogue (shutting people who disagree with you out of the discussion) is standard M.O. for a politician in washington dc these days………..

      i just thought jon was better than that.

    • Escapee

      Melinda – a mutual friend was trying to contact you, did s/he get in touch?

  7. Ingemar Johansson

    Mt electorate being played.

    1. Tester does the wolf rider to appease the majority.

    2. Malloy holds rider unconstitutional

    3. Tester will come out saying “I tried to solve this Molloy’s a radical”.

    4. Later at a private dinner Molloy and Tester toast their success.

  8. ladybug


    I’m surprised a bear would say such things about wolves. MTFWP is not guided by principles of wildlife biology, or any other biology for that matter. Like any other bureaucracy, it is primarily interested in its own perpetuation and growth, which in this case is dictated by perverse insentives linked to license fees. Since price is limited to what markets will bear, the only way to boost budgets is by adding more tags to the menu. Wolves are nothing more than the bureaucracy’s new cash cow — a commodity. Think of this as any other Montana industry, or GSE (government sponsored enterprise). The hunting industry, not biology, or public trust principles, write and defend the policy. The propaganda you seem to have accepted protects the outrageous neoliberal policy from biology and legitimate criticism from anyone who questions the structural problems this system perpetuates. This is a classic case of “regulatory capture.” I wouldn’t waste my breath if I didn’t think you cared.

    • I do understand jc’s legal argument that tester skirted the law here. I just see even worse future for wolves if we anger the majority further.

      Also my focus is on wholistic habitat integrity rather than protecting individual animals.

  9. ladybug

    insentives = incentives, need coffee.

  10. ladybug


    Worthy goals indeed. However, no animal is perhaps more dependent on ecosystem function in our region than the wolf. Habitat security remains our greatest challenge, especially when the bullets are flying.

    This hunt is in no way habitat-centric. Ideally, hunting could be a useful tool, especially in selected areas where wildlife mismanagement panders to the same special-interests at war with wolves seemingly forever. Wolves often resort to taking domestic livestock when there is a shortage of natural prey, when packs are young and inexperienced, or when indiscriminately disrupted by random hunter success. Bottom line: Hunting is a blunt instrument the way it’s being conducted.

  1. 1 “You Can’t Have Compromise Without Intransigence”; A Shout Out to the Left « 4&20 blackbirds

    […] Senator Tester’s reliance on unconstitutional riders in unrelated legislation to delist wolves is a great example of this philosophy, that challenges where the Separations of Powers truly lays. […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

  • Pages

  • Recent Comments

    Miles on A New Shelter for Vets or an E…
    success rate for In… on Thirty years ago ARCO killed A…
    Warrior for the Lord on The Dark Side of Colorado
    Linda Kelley-Miller on The Dark Side of Colorado
    Dan on A New Shelter for Vets or an E…
    Former Prosecutor Se… on Former Chief Deputy County Att…
    JediPeaceFrog on Montana AG Tim Fox and US Rep.…
  • Recent Posts

  • Blog Stats

    • 1,689,426 hits
  • Enter your email address to subscribe to this blog and receive notifications of new posts by email.

    Join 2,734 other followers

  • August 2011
    S M T W T F S
  • Categories

%d bloggers like this: