Evan Caminker (University of Michigan Law School) has posted Norm-Based Remedies for Statutory Inequalities on SSRN. Here is the abstract:
Upon finding that a statute creates an unconstitutional inequality, courts face an intriguing remedial question: how to enjoin executive officials henceforth to implement the statute in a nondiscriminatory manner. There are almost always two options: “leveling up” to extend a statutory benefit or burden to the initially excluded group, and “leveling down” to withdraw the benefit or burden from the initially included group.
For decades, the Supreme Court has approached this remedial enterprise as if no substantive constitutional values guide the choice between leveling up and leveling down; so long as the remedy establishes prospectively equal treatment at any level, constitutional input is considered fully exhausted. Given this assumption, courts have long embraced a remedial model—one I will call legislature-channeling—according to which courts implement whichever injunctive remedy they believe would reflect the enacting legislature’s preference had it known that its actual statutory design was invalid. The model’s goal is to forestall judicial policymaking by insisting that courts act as short-term legislative surrogates. A Court plurality recently acknowledged that this model raises both theoretical and practical concerns, among them that “courts are not well equipped to imaginatively reconstruct a prior Congress’s hypothetical intent.” Barr v. American Ass’n of Political Consultants, Inc., 591 U.S. 610, 625 (2020). But the plurality’s proposed fix—to shift the judicial inquiry from legislative preference to statutory meaning by deploying severability principles—runs into similar conceptual and pragmatic quagmires.
This Symposium Article challenges the current remedial model’s premise and proposes a new approach. Although the Court correctly observes that a mandate of equal treatment does not by itself dictate a preference for leveling up or down, the Court oversimplifies when it further claims that the Constitution says nothing about the remedial choice. Rather, the Constitution embodies many background norms that are not directly captured in enforceable judicial doctrine but that nonetheless sometimes favor one remedy over the other.
Where such “extra-doctrinal” norms exist, whether they underlie the equal treatment mandate itself or arise from separate constitutional provisions, they—rather than counterfactual legislative intent—should presumptively guide a court’s remedial choice. Of course, precisely because these norms are not directly judicially enforceable, the legislature remains free to establish anew any preferred equal level of benefits or burdens. But my proposed remedial model would provoke a more norm-focused judicial-legislative colloquy while still maintaining proper respect for ultimate legislative authority.
Highly Recommended!
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