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

August 4, 2011 in Congress, Environment, Jon Tester, SCOTUS

By JC

(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.”