UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 16, No. 2WINTER 1993
NOTE
Rust v. Sullivan: Redirecting the Katzenbach v. Morgan Power
Paul Chuey(fn*)
In Rust v. Sullivan,(fn1) the United States Supreme Court upheld a Department of Health and Human Services regulation,(fn2) which forbids employees of federally funded family planning clinics from discussing abortion with their clients.(fn3) Rust's holding, however, conflicts with previous First Amendment doctrine involving content-based conditions on government subsidy and employment.(fn4) The Rust Court could have reached this decision in one of two ways: the Court could have considered the constitutionality of the regulation, or the Court could have found that the decision on constitutionality was not its to make. The former approach is often labeled "theoretical," while the latter is labeled "metatheoretical."(fn5)
On the surface, the Rust Court appears to rule on the constitutionality of the regulation, applying theoretical First Amendment doctrine. This Note, however, proposes that the Rust Court decided that the constitutional decision was not its to make. This decision has critical metatheoretical implications because it does not merely involve speech protection in the federally funded workplace; rather, it allows the federal courts to defer to an administrative agency's constitutional interpretation.(fn6) Such deference, in turn, shifts power from the judiciary to the executive branch.
By deferring to the discretion of another branch of the federal government on a question of constitutional interpretation, the Rust Court implicitly resurrects and reshapes the long ignored doctrine of Katzenbach v. Morgan.(fn7) Despite their different substantive issues, these two cases have a similar effect on the federal judiciary's role in constitutional interpretation. Section I of this Note describes the facts and history surrounding Rust and Morgan. Section II examines the Rust doctrine of judicial deference in the context of Morgan. Section III examines the Rust Court's approach to the First Amendment issues raised by the regulation in question. Finally, Section IV explores Rust's possible implications.
I. A Comparison of Morgan and Rust
The facts and history of Morgan and Rust must be examined before comparing the Court's metatheoretical approaches in those cases. In Morgan, the Court addressed the constitutionality of a state law requiring citizens to pass a literacy test before being allowed to vote.(fn8) Previously, Lassiter v. Northampton County Board of Ejections(fn9) controlled this issue. In upholding literacy tests, the Lassiter Court found that "[t]he ability to read and write . . . has some relation to standards designed to promote intelligent use of the ballot."(fn10)
Consistent with Lassiter, the state of New York required its citizens to pass an English literacy test before voting.(fn11) After the Lassiter decision and the passage of the New York law, however, the United States Congress passed Section 4(e) of the Voting Rights Act of 1965,(fn12) prohibiting "the States from conditioning the right to vote of [U.S. citizens educated in Spanish in Puerto Rico] on ability to read, write, understand, or interpret any matter in the English language."(fn13)
The plaintiffs in Morgan, registered New York voters, challenged the constitutionality of Section 4(e) to the extent that it prohibited the enforcement of the election laws of New York.(fn14) The issue was whether Congress could invalidate the New York law under its Fourteenth Amendment, Section 5 power if, under Lassiter,(fn15) the New York law did not violate the Fourteenth Amendment Equal Protection Clause.(fn16) The Morgan Court distinguished Lassiter, neither criticizing it nor overruling it.(fn17)
Justice Brennan's majority opinion in Morgan set out two rationales for upholding Section 4(e).(fn18) First, Congress may select means to remedy discrimination under the McCulloch v. Maryland(fn19) Section 5 standard.(fn20) Second, Congress may apply its superior legislative fact-finding competence to invalidate a state law that invidiously discriminates, even if, apparently, that law has been held constitutional by the Court.(fn21) The second rationale allows Congress to define for itself the constitutional provisions that it may enforce under Section 5.(fn22) Thus, Morgan placed in the hands of Congress the power to interpret the Constitution and the power to make legislation according to that interpretation.
Rust arose from a controversy very different from that in Morgan. In 1970, Congress enacted Title X of the Public Health Service Act.(fn23) The Act authorized the Secretary of the Department of Health and Human Services to make grants to healthcare organizations "to assist in the establishment and operation of voluntary family planning projects. . . .(fn24) Section 1008 of the Act specifies that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning."(fn25) Until 1988, the Department interpreted Section 1008 as allowing unrestricted counseling and referral for abortion to encourage coordination with existing local and state family planning services.(fn26)
In 1988, the Secretary promulgated 53 Fed. Reg. 2923-2924,(fn27) which required that a "Title X project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning. . . ,"(fn28) The regulations forbid a clinic employee from referring a client to an abortion provider, even upon request, but allow the employee to respond, "the project does not consider abortion an appropriate method of family planning. . . ."(fn29)
A group of Title X grantees and doctors sued the Secretary on behalf of themselves and their patients, challenging the facial validity of the regulation and seeking injunctive relief.(fn30) The district court granted summary judgment in favor of the Secretary,(fn31) and the Second Circuit affirmed.(fn32) Chief Justice Rehnquist, writing for a five-to-four majority, relied on the agency's rule-making competence(fn33) and affirmed the Second Circuit's decision.(fn34)
The Supreme Court's analysis employed two steps. First, the Court held that the regulation is a permissible interpretation of Section 1008.(fn35) Second, the Court determined that the regulation is consistent with the First and Fifth Amendments of the Constitution.(fn36) The first step required the application of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,(fn37) which states that when a statute is ambiguous and does not speak to the issue at hand, "the question for the court is whether the agency's answer is based on a permissible construction of the statute."(fn38) The second step required an analysis of the First Amendment doctrines set out in several cases, including Rankin v. McPherson(fn39) and Arkansas Writers' Project, Inc. v. Ragland.(fn40)
Although Morgan and Rust dealt with different substantive constitutional doctrines, certain procedural similarities between the two cases are immediately apparent. Both cases focused on a fundamental right and started with an apparently settled constitutional doctrine: Morgan raised the voting rights doctrine from Lassiter, while Rust implicated the First Amendment doctrines set out in Rankin and Arkansas Writers'. In both, a rule or policy existed in harmony with the apparently settled doctrine: a New York voting statute allowing literacy tests was consistent with Lassiter; a Health and Human Services policy that interpreted Section 1008 and allowed for abortion referrals was consistent with Rankin and Arkansas Writers'. In both, a federal action reversed the rule and conflicted with the settled doctrine: Section 4(e) of the Voting Rights Act disallowed the literacy test, reversed the New York statute and conflicted with Lassiter; the regulation in Rust disallowed abortion referrals, reversed the agency's policy and conflicted with Arkansas Writers' and Rankin. Finally, both cases relied on explanations of relative institutional competence to uphold the rule in question.
II. Doctrines of Judicial Deference
While perhaps not significant in themselves, the procedural similarities between Rust and Morgan point to the Court's underlying conception of its own function. Both decisions refined the federal judiciary's role in reviewing the constitutionality of rules made by another branch of the national government based on the institutional competence of that branch. These decisions, however, provided only a vague description of the limits of the legislative branch's power. Similarly, both cases appeared to invite a non-judicial institution to enforce the constitutional provision that the Court declined to enforce.
A. Chevron and Institutional Competence
In Morgan, the Court allowed Congress to use its "specially informed legislative competence"(fn41) to define for itself the Equal Protection Clause provisions that it is permitted to enforce under Section 5 of the Fourteenth Amendment.(fn42) This part of the opinion, which occupies a single paragraph with accompanying footnotes,(fn43) inspired considerable controversy among constitutional scholars.(fn44) The question at the heart of the controversy is whether Congress can enforce...
