Defying the Supreme Court Through Faux Fidelity to Precedent
by Daniel B. Rice and Joshua A. Geltzer
The Supreme Court routinely rebukes lower courts for forecasting the demise of binding precedents. If a Supreme Court decision “has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions,” lower courts must, the Supreme Court has explained, “follow the case which directly controls, leaving to th[e] Court the prerogative of overruling its own decisions.” “Our decisions,” the Court has further instructed, “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing validity.”
Despite this crystal-clear directive from the nation’s highest Court, a federal district court recently refused to apply a pertinent Supreme Court precedent that has never been overruled. Scholars have long debated the merits of the opinion at issue. But, whatever one’s view of that underlying debate, we should all reject the lower court’s bizarre and brazen attempt to dismantle the Supreme Court’s handiwork.
The case arose from a constitutional challenge to the decades-old federal ban on female genital mutilation (FGM). The U.S. District Court for the Eastern District of Michigan held that the FGM statute could not be sustained as a regulation of interstate commerce. Nor, that court believed, could the law be justified as a measure “necessary and proper,” in the key constitutional phrase, for carrying into execution the government’s treatymaking power. Assuming for purposes of its opinion that the FGM statute advances guarantees contained in the International Covenant on Civil and Political Rights, the court nonetheless deemed Congress powerless to implement a legal norm that binds the United States as a matter of international law.
This holding blatantly ignores an applicable Supreme Court decision. In the 1920 case of Missouri v. Holland, the Court rejected an argument that a treaty-implementing statute (specifically, the Migratory Bird Treaty Act) usurped a power reserved to the states. Because the underlying “treaty [wa]s valid,” the Court reasoned, “there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.” Under Holland, then, there are certain matters “that an act of Congress could not deal with but that a treaty followed by such an act could.” A valid treaty “may override” the default allocation of federal and state regulatory authority.
The district court in the FGM case cited Holland — as it had to — and fairly characterized its holding. But, in a strange twist, the court understood Holland to have been implicitly overruled by later Supreme Court decisions emphasizing the states’ primary role in prosecuting “local” crimes. The court’s ostensible fealty to precedent is ironic, given its insistence on doing precisely what the Supreme Court has sternly warned lower courts not to do. The district court even professed to have reviewed the FGM statute “with the greatest possible deference.” To this, we can only invoke what the legendary legal scholar Charles Black called “the sovereign prerogative[] . . . of laughter.”
Here’s where the district court fundamentally went astray: the relevant question before it was not how to resolve any tension between Holland and more recent federalism cases; it was whether the Supreme Court had ever confronted that issue and jettisoned Holland’s approach. And the answer to that question is plainly no. The Court affirmed Holland’s continuing validity in both 1999 and 2004. In the 2014 case of Bond v. United States, the Court conspicuously declined to overrule Holland, despite an invitation by one party to do so. Justice Scalia’s separate opinion in Bond — which the district court cited as evidence of Holland’s passing — explicitly recognized that Holland had been “preserve[d]” and “le[ft] in place.” And just this year, the Ninth and Eleventh Circuits applied the principle of Holland in upholding treaty-implementing legislation under the Necessary and Proper Clause. According to Ninth Circuit Judge Jay Bybee, writing for a unanimous panel, “the Supreme Court has never undertaken” to reexamine that century-old decision.
Even if the Supreme Court had left lower courts some freedom to reconsider Holland’s vitality — and, to be clear, it has not — a challenge to the law criminalizing FGM would be an unfit occasion for doing so. A core concern of Holland’s critics is that Congress might pass a treaty-fulfilling statute that Congress would be powerless to enact but for the treaty, thus enabling the federal government to expand congressional authority through opportunistic international agreements. And one can imagine hypotheticals that would fluster even Holland’s defenders: imagine if the United States made a treaty with, say, Palau that called on both nations to eradicate firearms from their schools; and then Congress, purporting to implement that treaty, passed the same version of the Gun-Free School Zones Act that the Supreme Court deemed beyond congressional authority in a major 1995 decision.
Holland appears to anticipate and address such scenarios by limiting its recognition of Congress’s treaty-implementation authority to issues for which “the treaty is valid” in the first place — presumably meaning not just procedurally valid but also covering valid subject matter for a treaty. But, even for those concerned about Holland’s conceivable applications, implementing a growing international consensus against FGM is hardly a pretextual power grab. To the contrary, the effort to solidify an emergent anti-FGM norm is a major transnational project. Whatever one thinks of Holland, this simply isn’t the scenario of congressional scheming that energizes some of Holland’s critics and at least gives pause to Holland’s defenders.
Observers will continue to debate the FGM statute’s constitutionality, but no one should condone the district court’s audacious act of defying a Supreme Court decision. Lower courts have no authority to invalidate binding precedents, even ones they expect the Supreme Court to abandon in due course. Holland is the law — and must be treated as such — unless and until the Supreme Court says otherwise.
