Sen.
Leahy voted later the same day (Dec. 21, 2005) with 92 other senators
to commit treason and pass the military funding and hurricane recovery
bill to which the PREP Act had been attached.
Leahy introduced Chemerinsky’s letter.
I
understand that the Congress is considering legislation that has been
denominated as the ‘‘Public Readiness and Emergency Preparedness Act.’’
This legislation would give the Secretary of Health and Human Services
extraordinary authority to designate a threat or potential threat to
health as constituting a public health emergency and authorizing the
design, development, and implementation of countermeasures, while
providing total immunity for liability to all those involved in its
development and administration.
In
addition to according unfettered discretion to the Secretary to grant
complete immunity from liability, the bill also deprives all courts of
jurisdiction to review those decisions. Sec. [(b)(7).] I write to alert
the Congress to the serious constitutional issues that the legislation
raises.
First,
the bill is of questionable constitutionality because of its broad,
unfettered delegation of legislative power by Congress to the executive
branch of government. Under the nondelegation doctrine,
Congress may provide another branch of government with authority over a
subject matter, but ‘‘cannot delegate any part of its legislative power
except under the limitation of a prescribed standard.’’ United States v. Chicago, M., St. P. & P.R. Co., 282 U.S. 311, 324 (1931).
Recently,
the Supreme Court endorsed Chief Justice Taft’s description of the
doctrine: ‘‘the Constitution permits only those delegations where
Congress ‘shall lay down by legislative act an intelligible principle to
which the person or body authorized to [act] is directed to conform.’’’
Clinton v. City of New York, 524 U.S. 417, 484 (1998)(emphasis in original), quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
The
breadth of authority granted the Secretary without workable guidelines
from Congress appears to be the type of ‘‘delegation running riot’’ that
grants the Secretary a ‘‘roving commission to inquire into evils and
upon discovery correct them’’ of the type condemned by Justice Cardozo
in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 (1935)(Cardozo, J., concurring).
Second, the bill raises
important federalism issues because it sets up an odd form of federal
preemption of state law. All relevant state laws are preempted.
Sec. [(b)(8)]. However, for the extremely narrow instance of willful
(knowing) misconduct by someone in the stream of commerce for a
countermeasure, the bill establishes that the substantive law is the law
of the state where the injury occurred, unless preempted. Sec. (e)(2).
The
sponsors appear to be trying to have it both ways, which may not be
constitutionally possible. The bill anticipates what is called express
preemption, because the scope of any permissible lawsuits is changed
from a state-based to a federally based cause of action. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).
Usually,
that type of ‘‘unusually ‘powerful’’’ preemptive statute provides a
remedy for any plaintiff’s claim to the exclusion of state remedies. Id. at
7 (citation omitted). Here, rather than displace state law in such
instances, the bill adopts the different individual laws of the various
states, but amends them to include a willful misconduct standard that
can only be invoked if the Secretary or Attorney General initiates an
enforcement action against those involved in the countermeasure and that
action is either pending at the time a claim is filed or concluded with
some form of punishment ordered.
Such a provision raises two important constitutional concerns. One problem is that this
hybrid form of preemption looks less like an attempt to create a
federal cause of action than an direct attempt by Congress to amend
state law in violation of Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938) and basic principles of federalism. Although
Congress may preempt state law under the Supremacy Clause by creating a
different and separate federal rule, see Crosby v. Nat’l Foreign Trade Counc.,
530 U.S. 363, 372 (2000), it may not directly alter, amend, or negate
the content of state law as state law. That power, the Erie Court
declared, ‘‘reserved by the Constitution to the several States.’’ 304
U.S. at 80.
It
becomes clear that the bill attempts to amend state law, rather than
preempt it with a federal alternative, when one realizes that States
will retain the power to enact new applicable laws or amend existing
ones with a federal overlay that such an action may only be commenced in
light of a federal enforcement action and can only succeed when willful
misconduct exists. The type of back and forth authority between the
federal and state governments authorized by the bill fails to constitute
a form of constitutionally authorized preemption.
The other problem with this provision is that the
unfettered and unreviewable discretion accorded the Secretary or
Attorney General to prosecute an enforcement action as a prerequisite
for any action for willful misconduct violates the constitutional
guarantee of access to justice, secured under both the First Amendment’s Petition Clause and the Fifth Amendment’s Due Process Clause. See Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002).
In
fact, the Court has repeatedly recognized that ‘‘the right of access to
the courts is an aspect of the First Amendment right to petition the
Government for redress of grievances.’’ Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 741 (1983), citing California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972).
First
Amendment rights, the Supreme Court has said in a long line of
precedent, cannot be dependent on the ‘‘unbridled discretion’’ of
government officials or agencies. See, e.g., City of Lakewood v. Plain Dealer Pub. Co.,
486 U.S. 750, 757 (1988). At the same time, the Due Process Clause
guarantees a claimant an opportunity to be heard ‘‘at a meaningful time
and in a meaningful manner.’’ Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
The
obstacles placed before a claimant, including the insuperable one of
inaction by the Secretary or Attorney General, raise significant due
process issues. The Supreme Court has recognized that official inaction
cannot prevent a claimant from being able to go forth with a legitimate
lawsuit. See Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). The proposed bill seems to reverse that constitutional imperative.
Third, the complete preclusion of judicial review raises serious constitutional issues.
The Act, through Sec. 319F–3(b)(7), expressly abolishes judicial review
of the Secretary’s actions, ordaining that ‘‘[n]o court of the United
States, or of any State, shall have subject matter jurisdiction,’’ i.e.,
the power, ‘‘to review . . . any action of the Secretary regarding’’
the declaration of emergencies, as well as the determination of which
diseases or threats to health are covered, which individual citizens are
protected, which geographic areas are covered, when an emergency
begins, how long it lasts, which state laws shall be preempted, and when
or if he shall report to Congress .
The
United States Supreme Court has repeatedly stressed that the preclusion
of all judicial review raises ‘‘serious questions’’ concerning
separation of powers and due process of law. See, e.g., Johnson v. Robison, 415 U.S. 361 (1974); see also, Oestereich v. Selective Service System Local Board No. 14, 393 U.S. 233 (1968); McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991); Reno v. Catholic Social Services, 509 U.S. 43 (1993).
Judicial
review of government actions has long regarded as ‘‘an important part
of our constitutional tradition’’ and an indispensable feature of that
system, Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365 (1973).
The
serious constitutional issues raised by this legislation deserve a full
airing and counsels against any rush to judgment by the Congress.
Whatever the merits of the bill’s purposes, they may only be
accomplished by consideration that assures its constitutionality.
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