Among public officials nowadays, principled decisions to shoulder responsibilities, to define lines of government accountability and to defend the public interest against the habitual spread of arbitrary power are rare enough to be newsworthy — and refreshing enough to be praiseworthy.
Two recent court decisions — one state, one federal — fit this description. Each declares a limit on a trend toward what might be called government by abdication, through which elected lawmakers transfer ever more power to decisionmakers who are far less accountable to the public — to bureaucrats, judges, arbitrators, prosecutors, etc.
The unhealthy growth of this so-called “administrative state” is fueled by the simple reality that governing is easier when the people making the tough calls don’t have to answer so directly to the people and need not debate their choices in highly public forums.
But as U.S. Supreme Court Justice Neil Gorsuch put it in his wise concurrence in Sessions vs. Dimaya on April 17, in a free society, government “is supposed to be a hard business.”
No doubt it’s faint praise to say this decision confirms Justice Gorsuch as the best thing the Trump presidency has produced. But Gorsuch took a bit of a tongue-lashing from liberal senators like Minnesota’s Al Franken at his confirmation hearings last year, mainly for being a Trump puppet and lacking sufficient sympathy for the “little guy.”
Well, James Dimaya, a permanent legal resident from the Philippines convicted of two burglaries in California — in short, a criminal alien — isn’t exactly a corporate fat cat or darling of Trumpish nationalism. Yet Gorsuch parted company with his fellow conservatives and joined the high court’s four liberals to give Dimaya a 5-4 reprieve from deportation.
Gorsuch wrote a separate opinion to explain. Justice Elena Kagan’s opinion for the court emphasized the “special gravity” of deportation as a penalty to justify finding this portion of immigration law unconstitutionally vague. But Gorsuch’s concerns go deeper.
“The Constitution,” he writes, “looks unkindly on any law so vague that reasonable people cannot understand its terms.”
The portion of law in question imposed deportation on any legal alien who committed not actual violence but a crime that typically poses a “substantial risk” of violence. Such a hazy, flabby statute “leaves the people to guess about what the law demands,” Gorsuch complains, “and leaves judges to make it up.”
“The Constitution,” he says, “demands more.”
The Constitution demands the “separation of powers,” Gorsuch writes, because “restricting liberty” should only happen as the difficult result “of an open … debate among … diverse … elected representatives.” Today’s increasing volumes of vague laws “hand off the job of lawmaking” and make it “easy, with a mere handful of … judges and prosecutors free to ‘condemn all that they personally disapprove…’ ”
The legislative branch, Gorsuch insists, must “establish minimal guidelines to govern law enforcement.”
The need for law enforcement standards is also pretty much the bottom line of what may prove a momentous ruling from the Minnesota Court of Appeals. On April 9, in what the Star Tribune’s news report called “a stunning loss for the state’s largest police union,” the appeals court overturned a labor arbitrator’s reinstatement of fired Richfield police officer Nathan Kinsey.
Even more than the powerful police unions, what suffered defeat in the court’s ruling was a long-standing complacency about “handing off” the job of enforcing standards of police conduct to a dispute-resolution process imported from the private sector and given unchecked power to resolve disputes that powerfully affect public safety.
State law requires local governments to allow public employees to appeal disciplinary decisions to arbitrators, who not infrequently overturn firings and lengthy suspensions, even of police officers found by their departments to have mistreated citizens. As has been discussed here a few times before, arbitrators’ judgments in such cases are often at least debatable.
And yet Minnesota courts have long treated arbitrators’ rulings as virtually inviolate, with “every reasonable presumption … exercised in favor of [their] finality and validity,” as the appeals court put it.
With concerns mounting in recent years about police use of force, and efforts underway on numerous fronts to more effectively manage and discipline cops, frustrations with the arbitration system boiled over in the Kinsey case. Richfield, the state police chiefs association and the League of Minnesota Cities all joined in appealing his reinstatement by an arbitrator. Unions linked arms to defend binding arbitration.
Kinsey was fired in 2016 over his failure to report striking a Somali teenager, the last in a series of failures to properly report use of force, for which he had been counseled and disciplined. The city argued that an arbitrator’s “second-guessing” of the Police Department and city officials interfered with their duty to decide when an officer has demonstrated a lack of the “self-regulation” essential among cops, who are sent into the community necessarily armed with weapons, authority and discretion.
To the surprise of most observers, the Appeals Court agreed. A union leader called the ruling “an unprecedented blow to a basic pillar of collective bargaining.” A leader of the police chiefs said it could give police supervisors “more latitude” to enforce standards.
It took some fancy legal footwork. Because of the holy writ status of arbitration in state Supreme Court precedent, the Appeals Court judges had to overcome a through-the-looking-glass argument: “that just because a police officer’s conduct violates public policy does not mean that an arbitration award reinstating that police officer automatically violates public policy.”
In this case the court chose not to hand off the tough call. State law, the judges noted, mandates arbitration but also “expressly subordinates the [right to] arbitration … to the rights of Minnesota citizens” — their “paramount right” to have government protect their “safety and welfare.”
Like Gorsuch, these judges are taking action, but can’t be faulted for overreaching “activism.” Like Gorsuch, they are merely insisting that vital decisions affecting the people should be made by officials accountable to the people — in this case by mayors and city councils and the police chiefs they appoint.
“We are aware,” Judges Jill Halbrooks, Francis Connolly and Denise Reilly wrote, “that this is only the second time this court has vacated an arbitration award [of this kind]. We do not take this action lightly, but rather thoughtfully and unanimously.”
Here’s hoping both these rulings inspire more actions like that.