When you're an Article III Hammer, Everything is an Article III Nail

So I reviewed the oral argument transcript in Spokeo v. Robins, and I noted an unfortunate thread in some of the questioning.  Much of the questioning was of the "slippery slope" variety, in that there was a concern that if courts allowed claims to be green-lit by an unscrupulous Congress, which would cause fundamental unfairness to future potential defendants.  These questions often proceeded by hypothetical.

Here are some examples  (I've made minor edits to the transcript for readability only):

First, on page 30 of the transcript:

CHIEF JUSTICE ROBERTS:  What about a law that says you get­­ $10,000 statutory damages if a company publishes inaccurate information about you?  You have an unlisted phone number.  You don't want people calling you.  The company publishes your phone number, but it's wrong.  That is inaccurate information about you, but you have no injury whatever.  Can that person bring an action for that statutory damage?

The key to Chief Justice's hypothetical here is the $10,000 statutory damages.  The damages seem untethered to the conduct.  This not an entirely non-existent problem already. 

Here's another (pp. 42-43).

CHIEF JUSTICE ROBERTS:  But I want to ­­ as I understand, I take the falsity out of the ­­ the hypotheticals to get exactly what your position is on the breadth of Congress' power.  So let's say the  statute says anybody who's publishing information about you has to pay the individual $10 a year.  They think that's a good way to regulate it.  It's information about you, good, bad, or indifferent, pay them $10 a year, no more, no less.  Spokeo or whatever that business is pays you $20 one year.  Now you've been ­­ the statute has been violated with respect to you, a particular individual.  Can that ­­ and there's statutory damages of $10,000.  Can that individual sue? 

Here, the keys underlying the question is whether (a) the right to $10 a year is legal in the first instance, (b) whether the "no more" rule is arbitrary and capricious, and (c) whether the $10,000 is a fair penalty.

And here's a third (p. 50):

 CHIEF JUSTICE ROBERTS:  Mr. Stewart, let's kind of say your ­­ your ­­ Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, anyone in a border State ­­ so it's particularized ­­ who is unemployed may bring an action against an illegal immigrant who has a job.  And they get damages, maybe they get an injunction.  Can Congress do that?

Here, the keys involve whether Congress can bypass executive authority to enforce the law, and whether an individual can be awarded for damage an individual does to society.

Underlying these concerns there are three issues.

The first is the incorrect assumption that Article III provides a substantive limitation on the power of Congress. I mean, it's right there in hypotheticals 2 and 3.  But Article III does not provide power to Congress, but instead power to the Judiciary.  The  Chief Justice ignores that a ruling for Spokeo would not eliminate these potential slippery slopes, but merely require them to be brought in state court (and, of course, allow state law to decline to hear them as well).  They would not change the statutory right; they would just eliminate a federal forum for resolving that right.  Indeed, the Act at issue in Spokeo here preempts state defamation law (p. 41).  So instead of bringing a state-law claim for defamation, they would have to bring a federal claim under the Act in state court.  And the defendant could not remove the case to federal court because there's no jurisdiction!

The second is a distrust of Congress. In each hypothetical (except perhaps the 3rd), the Supreme Court assumes that Congress will do something bad for no good reason whatsoever.  Likewise, tt assumed that in the ACA cases, threatening to strike down the Act because of a fear that Congress might enact a broccoli mandate.  But part of the Constitutional process involves Congress itself.  And while the Constitution provides additional protections to minorities whose rights are likely to get trampled on by the majority, the majority's biggest protection of rights is the democratic process itself.

The third is that conservatives do not like substantive due process.  Their concerns about it include a variety of good reasons and bad reasons that I do not want to get into here.  But while they don't like substantive due process, their feelings often change when the result is striking down anti-libertarian laws.  Yet, hampered by their dislike of due process, they often try to accomplish due process rights by looking at other parts of the Constitution.  In the ACA, it was the Commerce Clause.  In Spokeo, it is Article III.  In both circumstances, however, the protection at issue is clearly only a protection from federal regulation, inapplicable to the states, even though the state accomplishing the same thing would be just as offensive as the federal government doing it, from their prospective.

In fact, these hypotheticals do touch on constitutional rights.  But they aren't Article III constitutional rights.  And the rights that they do touch on would protect individuals from the state government and the federal government alike.  Thus, these unlikely hypothetical issues can and should be resolved without creating new rights. 

Let's start by looking at hypothetical 1.  The person has had improper information published about him.  Sure, he might not actually mind - he doesn't want to be called anyway.  But that requires a subjective reading into his brain, and most people might actually mind.  They just might not mind to the tune of $10,000.  

Now, Congress would almost certainly never pass such a statute.  But let's assume they do.  If the $10,000 damages is disproportionate, it may raise due process issues.  As explained in a 1919 case titled  St. Louis, IM & SR Co. v. Williams, the Court noted that of course a government can impose a penalty.  "Nor does giving the penalty to the aggrieved passenger require that it be confined or proportioned to his loss or damages; for, as it is imposed as a punishment for the violation of a public law, the legislature may adjust its amount to the public wrong rather than the private injury, just as if it were going to the State."  But the Court went on to explain that a penalty might still violate the Due Process Clause of the Constitution when it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable."  So, if this hypothetical violates the Contitution, it does so because of that substantive due process rule.

Hypothetical 2 is actually quite similar, except by eliminating the requirement of falsity, it throws in some additional First Amendment issues that are not worth going through here.  

Hypothetical 3 involves other concerns, including thorny issues about the primacy of the executive in enforcing immigration law, whether the Constitution gives the federal government certain police powers, and, in doing so, whether it allows for private prosecutions.  Let's just say whether an individual can ask for injunctive relief to enforce immigration laws generally would be a very interesting question - one in which Article III would play almost no role at all.  As far as whether the plaintiff could bring statutory damages in this case, the answer would probably be no, not only because of St. Louis above, but because, under a case called State Farm v. Campbell, the due process clause holds that a "defendant should be punished for the conduct that harmed the plaintiff."   Punishment based on harm to damage to the society at large "creates the possibility of multiple punitive damages awards for the same conduct; for in the usual case nonparties are not bound by the judgment some other plaintiff obtains."  I say probably, because it is possible that, if the injunction is allowed, the Court may allow damages so long as those damages are merely adequate to compensate the plaintiff for its work.

But again, these are substantive due process issues, not Article III issues.  If they were Article III issues only, then the most that could be said about them is that the claims must be brought in state court.  And, to the extent that they are a restriction on Congress's power generally, they are not a restraint on the powers of the 50 state legislatures.  An Article III solution would not fully prevent the harm implied by the hypotheticals.

Conservatives do not like substantive due process in part because it allows the judiciary to read its preferred policies as a super-veto on legislatures.  This point is often valid.  But doing so based on the Commerce Clause or Article III poses the same problems.  And, unlike the Due Process clause, the singular focus on the federal government creates gaps allowing the concerned harm in any event.

This case involves the Fair Credit Reporting Act.  The Court's conservatives have pointed out some significant unfairness with the Act, including the fact that it is possible to read the statute to allow a plaintiff to sue a credit reporting agency with bad practices even if the bad practices do not lead to any error at all.  (Plaintiffs and the Government have conceded such a claim should not be allowed, and while I suspect that is right, I would prefer this be due to an extension of State Farm instead of through Article III).

But first, let that unfairness be tested among rules that apply broadly to favored and disfavored defendants alike.  What is good for a corporate defendant should be equally good for the guy using Limewire.  And second, if the concern is proportionality, use a part of the Constitutionality that allows proportionality to be considered.  Article III, on Spokeo's own terms, is an all or nothing proposition.