Conglomerate Blog: Business, Law, Economics & Society

December 11, 2007

The Latest on Appeal

Posted by David Zaring

It's quite difficult for a non-criminal law person to understand what's going on with the Blakeley and Apprendi line of cases. Those are the ones that threw out the federal sentencing guidelines. Finding something to be unconstitutional decades after it was promulgated always raises the suspicion that the constitutional excuse is nothing more than an excuse, for one thing, and though district court judges hated the guidelines, the Miranda-like advantages of them (clarity, predictability, transparency, and so on) are not hard to grasp. Plus, summarily throwing out the guidelines sounded like it would create chaos. So in addition to commending Doug Berman's sentencing blog posts to you on the latest sentencing cases, Gall and Kimbrough (reaffirming the Supreme Court's "guidelines are advisory" approach), I'll point you to Michael O'Hear's helpful reminder that it is the courts of appeals who have provided the "oh no they aren't advisory" counter-approach.

The D.C. Circuit verrrrry strangely just held that an FCC 2-2 deadlock on a request for regulatory forbearance - that the agency deemed granted, rather than denied, and that accordingly changed the regulatory requirements on the forbearance requester - "cannot be considered an order of the Commission nor can it constitute agency action." So the court couldn't review it. The path for the FCC in light of this precedent is clear - deadlock on all similar requests that you'd like to grant, and avoid judicial review altogether. Admittedly, the statutory scheme did give the court a basis for its decision. Under the statute, a forbearance is deemed granted if the agency "does not deny" it. And if it didn't deny it, the agency didn't create a record for review.

We'll be watching the litigation over the president's removal of the American member of the International Boundary Commission very closely. The commissioner was summarily fired, the commission was created by a treaty, does that limit the ability of the president to appoint the official of his choice? The district court has said no - stay tuned for the Ninth Circuit's view.

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It's quite difficult for a non-criminal law person to understand what's going on with the Blakeley and Apprendi line of cases. Those are the ones that threw out the federal sentencing guidelines. Finding something to be unconstitutional decades after it was promulgated always raises the suspicion that the constitutional excuse is nothing more than an excuse, for one thing, and though district court judges hated the guidelines, the Miranda-like advantages of them (clarity, predictability, transparency, and so on) are not hard to grasp. Plus, summarily throwing out the guidelines sounded like it would create chaos. So in addition to commending Doug Berman's sentencing blog posts to you on the latest sentencing cases, Gall and Kimbrough (reaffirming the Supreme Court's "guidelines are advisory" approach), I'll point you to Michael O'Hear's helpful reminder that it is the courts of appeals who have provided the "oh no they aren't advisory" counter-approach.

The D.C. Circuit verrrrry strangely just held that an FCC 2-2 deadlock on a request for regulatory forbearance - that the agency deemed granted, rather than denied, and that accordingly changed the regulatory requirements on the forbearance requester - "cannot be considered an order of the Commission nor can it constitute agency action." So the court couldn't review it. The path for the FCC in light of this precedent is clear - deadlock on all similar requests that you'd like to grant, and avoid judicial review altogether. Admittedly, the statutory scheme did give the court a basis for its decision. Under the statute, a forbearance is deemed granted if the agency "does not deny" it. And if it didn't deny it, the agency didn't create a record for review.

We'll be watching the litigation over the president's removal of the American member of the International Boundary Commission very closely. The commissioner was summarily fired, the commission was created by a treaty, does that limit the ability of the president to appoint the official of his choice? The district court has said no - stay tuned for the Ninth Circuit's view.

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