Judges Sound Prone to Uphold DTV Law against Public Citizen Challenge
Wireless carriers, broadcasters and others seem to face little risk that the U.S. Appeals Court, D.C. will overturn the Deficit Reduction Act (DRA) and with it the Feb. 2009 deadline for the DTV transition and 700 MHz auction, judging by the judges questions in oral arguments Fri. Public Citizen contends the law is unconstitutional because the House and Senate bills weren’t reconciled.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Public Citizen said in a brief that the secretary of the Senate committed an error in preparing the budget bill that was sent to the House and became the DRA. “One constitutional requirement that is not ambiguous… is the requirement that every bill pass both houses of Congress before it can be presented to the President and become law,” Public Citizen said: “The Senate passed one version of a bill, the House another, and then the Senate’s version was presented to the President, who signed it.”
Judges’ questions suggested that the biggest challenge Public Citizen faced was overcoming Marshall Field v. Clark, an 1892 Supreme Court case, involving a tariff on wool clothes. The plaintiffs argued that the version of a bill signed by the president omitted a section that had been included in the version approved by the House and the Senate.
The plaintiffs said congressional journals required by the Constitution should be the conclusive evidence of what passed the House and Senate. But the Supreme Court refused to examine the journals, holding that the signature of the speaker of the House and president pro tem of the Senate are enough to certify that a bill has passed both chambers, and the courts have no say in the matter.
“I just don’t know how you get around Marshall Field,” Judge Harry Edwards said. “Marshall Field looks pretty straightforward.” He observed that his court is “at the intermediate level” and “the Supreme Court has admonished us a few times” for not paying adequate attention to precedent.
Judges David Tatel and Merrick Garland also wanted to know how the case differed significantly from Marshall Field. Garland asked where the court should draw the line if it starts to look more closely at congressional procedure. “What if the clerk again made a mistake and placed the wrong bill before the Senate?” he asked. “How do we know the clerk didn’t make the same mistake or a different mistake in sending the wrong bill to the floor? The presumption has to be that they [Congress] followed the law.”
“Two of the three judges took the challenger’s arguments quite seriously, and peppered both sides in an effort to understand when the judiciary may evaluate whether legislation has been passed following Constitutional requirements,” Stifel Nicolaus said in a research note: “However, based on today’s oral argument, our reading of the briefs, and various other factors, including that the case involves core issues of separation of powers which courts only rarely undertake, we do not believe the D.C. Circuit will invalidate the legislation.”
The judges were appointed to the court by Democratic presidents. Democratic members of Congress had filed in support of Public Citizen. CTIA had taken the case seriously enough to file as a friend of the court against the public interest group (CD Jan 24 p1). Sources said the case was being watched closely at the FCC.