Covering the Front and Back Pages of the Newspaper
February 2, 2005
LAW: Indefensible Acts of Congress?
A decision last Friday by the D.C. Circuit, Taucher v. Brown-Hruska (No. 04-5026), raises an intruiging set of questions about the ethical obligations of government lawyers in defending the validity of laws and regulations before the courts. The underlying legal dispute in Taucher involved a lawsuit to declare a portion of the Commodity Exchange Act that required registration with the CFTC for anyone providing certain types of investment advice about commodity futures trading to be an unconstitutional infringement on free speech. The plaintiff publishers eventually won, convincing the court that the statute was unconstitutional as applied to them. (Slip op., at 4).
Taucher deals with the plaintiffs' request for legal fees under the Equal Access to Justice Act, 28 U.S.C. 2412, which allows parties who prevail in actions against the government to recover fees if the government's legal position was not "substantially justified," although the statute provides an exception under which a court can deny fees if "special circumstances would make an award unjust." The district court awarded fees to the plaintiffs, but the D.C. Circuit, in a 2-1 decision, reversed the award.
The court nonetheless refused to accept the CFTC's argument that it could not be penalized for arguing that an Act of Congress was constitutional, given that an executive agency is charged with the constitutional duty of carrying out Acts of Congress, not deciding whether to follow them. (Slip op. at 10-11). "Theirs not to reason why," in a sense. The court refused to accept the principle "that the government is forever and always 'substantially justified' in defending in court the constitutionality of an Act of Congress, whatever the statute may say, and on any ground a legal mind may conceive . . . The question under EAJA remains whether that position was substantially justified." (Slip op. at 11-12; quotation omitted).
Ultimately, however, the court determined that the unconstitutionality of the provisions in question had not been clear enough from controlling Supreme Court or D.C. Circuit precedents, and had been a sufficiently close case on the particular facts presented, that the government's position could not be said to be without "substantially justification" - a fairly common result, actually, given federal courts' frequent hesitancy to shift the costs of litigation to losing parties.
Of course, you can argue that EAJA is a remedial statute - i.e., designed to benefit plaintiffs with valid claims - rather than a penalty (after all, an EAJA award is paid by the taxpayers, and the lawyers themselves aren't disciplined). Thus, one could look at a failed CFTC defense and an award of fees and say, "the system worked." But the court's analysis of the duty to defend definitely stands as a warning to executive agencies that there can be adverse consequences to defending Acts of Congress, even if the agency may be duty-bound to do so.