Argument recap: What is “appropriate”?
on Nov 2, 2010 at 6:39 pm
Analysis
“Appropriate” is one of those words, perhaps, with a meaning in the eye of the beholder. But when it is immersed in constitutional controversy, its actual meaning may be harder to nail down.  The Supreme Court struggled with that on Tuesday, but left behind the impression that Congress was too imprecise about what it meant when it used that word in an important law ten years ago — with the Eleventh Amendment in the background.
The argument in Sossamon v. Texas (08-1438) necessarily focused on that word as it appears in the Religious Land Use and Institutionalized Persons Act — a federal civil rights law designed to protect the religious practices of people held in state-run prisons, mental hospitals, or other institutions, and the religious freedom of those owning property.  But the Court had larger issues in mind, too, as to explored the ways that Congress must show respect for the “dignity” of the sovereign states. And that is where the Constitution came in.
The RLUIPA law requires states, in return for federal funds, to give up their immunity to private lawsuits that seek “appropriate relief” for violations of religious rights. The case could turn on the narrow issue of what “appropriate” means and, in particular, whether it means that state officials can be assessed money damages for violations. But the Justices made clear Tuesday that, since states normally are constitutionally immune to damage claims without their consent, it had to be clear that Congress clearly had taken steps to get that consent when it offered them funds for prison or other state activity.
The Court was offered two clearly contrasting views on that point. Kevin K. Russell, a Maryland lawyer arguing for a Texas inmate who claims prison officials denied him a chance to leave a disciplinary cell to go to religious services, said states consented when they took the money, and knew that violations could lead to money damage claims. “Appropriate relief” includes damages, he argued. But Texas’s solicitor general, James C. Ho, said that phrase is a clear example of ambiguity, so the states did not read it as extracting their consent to be sued for damages.
The difference — and it was one that the Justices seemed to treat as the key issue — was where each lawyer found support for his reading.
Russell found it in the way the Court has interpreted the kinds of relief available for other kinds of violations by governments, but especially for violations of civil rights. Ho, however, looked at the language of the law through the lens of the Constitution, and pronounced it as so vague that it would not do the work of apprising states that with the money came potential liability for damages.
The going turned out to be tough for Russell, and for a Justice Department lawyer, Sarah E. Harrington, supporting the availability of money damages against states under this particular law. Justice Antonin Scalia dwelled on the view that “appropriate” had to mean what was appropriate for the states as the sued parties, and what would be appropriate for them was to have Congress speak with complete clarity so they know what they were letting themselves in for in taking money with strings attached.
It did not help Russell and Harrington that the two of them took conflicting positions on whether the federal government is less liable for damage claims than state governments are. That seemed like a side issue in the case, but it appeared to be quite troubling to Justice Anthony M. Kennedy, and, perhaps, to Justice Ruth Bader Ginsburg. Kennedy noted that, if a federal law subjects the federal government to damages, Congress can simply change that to protect national sovereignty, but states need “special protection” because they just don’t have that option, and the difference could upset “the federal balance.”
Kennedy, like Scalia, thus made clear that the mode of interpreting the statutory phrase “appropriate relief” had to be done with the states’ “dignity” in mind. “We are talking about general principles of interpretation,” the Justice said, “and the proposition that we are suggesting is that the state surely should be entitled to the same dignity, the same protection against suits as the federal government.”
Justice Ginsburg suggested to Harrington that, when states are told that they face “appropriate relief” if they violate a condition of funds they get from the federal government, they expect they will have to face an order to enforce those conditions. But, she went on, imitating what the state would add, ” ‘we’re the state and it’s our treasury, and it is not appropriate relief….It doesn’t say in the….legislation that we open up our treasury.'” At another point, Ginsburg said the dispute really came down to a question of whether Congress, if it wanted “to reach the state treasury,” had said so with sufficient specificity. Only that, she suggested, would remove the doubt and put the state on constitutional notice.
Speaking for Texas, Ho made his strongest thrust early on, in answering questions from Justice Sonia Sotomayor. If the language of the law at issue was so unclear as to remedies, why would the state agree that there could even be a court order (an injunction) to enforce that law? Such orders might themselves impose considerable costs on the state, so, she asked, “why do we draw the line between saying one is more intrusive than the other?”
Ho said that, if a state is faced with an injunction that is tied to its receipt of federal funds, “we can walk away” from such an order” by simply stopping the receipt of the funds “and the injunction evaporates, but we can’t walk away from a damage remedy.
The state’s lawyer also sensibly picked up on the concerns of the Justices about whether states were being treated equally, in their sovereignty, with the federal government. The Constitution, he said, does make them equal. Both, he said, “enjoy sovereign immunity and included in that” is a need for a very specific choice to waive that immunity — “not just a clear waiver, but specific as to the scope of the waiver, and specific as to the remedies.”
