The Constitution? Not In This Court

Subject matter is the sort of thing that doesn’t make it onto the plate of non-lawyers, who properly assume that if they have an argument in support of their own defense, a court will hear and consider it.  This makes perfect sense, so naturally the government has come up with a way to screw with it.

Via Eugene Volokh at WaPo Conspiracy, the 9th Circuit’s opinion in United States v. Szabo:

William J. Szabo was prosecuted for violating a Veterans Administration regulation banning “disturbances” at VA facilities. The panel unanimously found that the regulation was constitutional as applied to Szabo’s speech, “because his conduct involved a ‘true threat’ of violence.” But Szabo also claimed that the speech restriction was unconstitutionally overbroad — something that is generally allowed in First Amendment cases.

Yet the majority held that Szabo couldn’t bring this challenge, because a federal statute expressly provided that such regulations could only be challenged in the U.S. Court of Appeals for the Federal Circuit. Szabo was arguing that the regulation was unconstitutionally overbroad before the federal district court that tried him, and then before the Ninth Circuit; that, the court held, was impermissible. “‘[So long as] Congress provides for a ‘special statutory review proceeding’ in one specific court, challenges to the administrative action must take place in the designated forum.’”

In other words, Szabo’s appeal of his conviction included an overbreadth challenge to the statute, and his appeal went to the 9th Circuit, the court refused to consider this prong of his argument because there was a VA regulation providing that any challenges had a “special statutory review proceeding” before the Federal Circuit.  The 9th Circuit lacked jurisdiction to consider.

What’s the big deal?  This regulatory obstacle course would force a Szabo to appeal his conviction to the 9th Circuit, and the Federal Circuit as well, splitting his appeal before separate appellate courts.  Even lower on the nuts and bolts food chain, Szabo would not have a criminal appeal before the Federal Circuit, but would be required to bring a separate civil suit to have the issue heard.  Guess who doesn’t get counsel appointed for that one?

This would potentially have quite broad implications. It would let Congress shunt all overbreadth objections to federal regulations to a specialized court, and thus bar First Amendment overbreadth defenses in federal prosecutions for violating particular regulations, far outside the specific area of VA regulations or even regulations dealing with conduct on federal property.

To call the implications broad is an understatement.  What if venue challenges could only be heard in the 11th Circuit, while Brady challenges were reserved for the 5th Circuit, and challenges to the CFAA were limited to the 2d?  If Congress can screw with the ability to present argument on appeal, not by depriving a defendant of the right (because that would be unconstitutional in itself), but by creating procedural roadblocks that would effectively render it monumentally burdensome to mount a meaningful challenge, the implications are overwhelming.

In dissent, Judge Dorothy Nelson calls it out:

[Moreover,] even if it were legally possible for Szabo to obtain pre-enforcement review in the Federal Circuit, the majority cannot dispute the evident impracticality and unrealistic nature of this scenario. Szabo is an indigent criminal defendant who had neither the means nor the motive to pursue a pre-emptive lawsuit in a court on the other side of the country. By concluding that Szabo nonetheless had a prior “opportunity” to obtain judicial review, the majority has ventured to the boundaries of that word’s meaning.

While the fact that Szabo was indigent certainly adds a problematic twist to the holding, the burden would still be outrageous if he was flush.  The burden and cost of challenging the government is no small matter, even if you’ve got cash to burn.  Judges, with the myopia that comes of sitting in a courtroom day after day, often take it for granted that the people sitting at the far table should just have to suffer.  After all, this is our system and, well, suck it up.

While there is a certain unfortunate truth to this, consider how “this is our system” plays out to those who are, or believe themselves to be, wrongly before a court.  Assuming, arguendo, they have done nothing to warrant being subject to being nabbed in the wee hours of the morning in front of their children, hauled to jail, and told to sit in that seat until it’s time for trial.

It’s quite Kafkaesque.  While judges can take it all for granted, as being the ordinary course of affairs in a courtroom, normal people don’t see it that way at all.  Ordinary folk compelled to stand before a court find it incomprehensible that they can’t just explain why they shouldn’t be there and the judge, fair and Solomonic, will listen carefully and then apologize for the horrible mistake, wish them well and send them on their way.

Ordinary people can’t quite wrap their head around the fact that it doesn’t work that way, and nobody but them thinks this is outrageous.

The Szabo decision reduces absurdity to new level. Should the government be permitted to craft an obstacle course that’s theoretically possible to navigate, if you have the wherewithal in money, tolerance and years and years of your life, but essentially impossible to overcome in the real world, it reduces due process to a farce.

Sure, you can always bring your VA overbreadth claim to the Federal Circuit.  You can. And Congress says you must, because the court before which your appeal must otherwise be heard can’t consider that piece of the puzzle.  But you really can’t, because as good as that process may work perfectly for the purpose of the VA’s convenience, it is a nightmare for the defendant and practical impossibility.

3 thoughts on “The Constitution? Not In This Court

  1. Anon

    makes one wonder-if Szabo asked for certiorari from the Supremes what would their choice of tunes be?
    automatically Sunshine
    stop! in the name of love
    tears if sorrow
    the way you do the things you do
    you keep me hanging on
    forever came today
    come see about me
    hit the road jack

    1. SHG Post author

      You’ve raised a fascinating sub-issue: If he wanted to cert of his criminal conviction in its entirety, and had decisions from two circuits, one crim and one civil, what would the procedural posture be to petition?

      1. adam kadmon

        best answer without giving anything for nothing to quote Lord Chancellor Lolanthe
        i did nothing in particular and i did it very well

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