What Happens When The Federal Rules of Civil Procedure Violate Federal Law?

The Federal Judiciary's Rules Committee will find out if it adopts the "Random Case Assignment" Policy

Life-tenured judges play the long game. Last spring, the Judicial Conference adopted, without any debate, a "binding" policy that would force reassignment of cases seeking nationwide relief. After some controversy, the mandatory policy suddenly became "optional guidance." And over the past few months, a handful of districts have adopted this policy. The overwhelming majority have done nothing. And other districts, including the U.S. District Court for the Northern District of Texas, rejected the policy. This process played out exactly as Congress intended: 28 U.S.C. 137 expressly delegated rules concerning case assignment to "the rules and orders of the court." Each District Court can decide these matters for itself.

But if at first you don't succeed, try, try again. Or in the world of the federal judicial bureaucracy, send it to a committee! Tomorrow, the Rules Committee will consider the issue of case assignment. And they will consider whether to adopt the Judicial Conference's reassignment policy by virtue of modifying the Federal Rules of Civil Procedure. If you read Page 415 of the agenda (and who hasn't!), you will find that the committee expressly recognizes that this might be contrary to federal law!

There is also a strong argument that assignment of cases among the judges in a district is within the Congress's jurisdiction. Since the Judiciary Act of, Congress has statutorily provided for case assignment to be left to the districts in the first instance, and this remains the case today. 28 U.S.C. § 137(a) provides that, "[t]he business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.

In the wake of the Judicial Conference guidance, Senators McConnell, Cornyn, and Tills stated their views in a letter to the Chief Judge for the Eastern District of Kentucky: It is Congress that decides how cases should be assigned in the inferior courts and Congress has already spoken on this issue in an enacted statute: Congress gave that power to the individual district courts. Whatever the Judicial Conference thinks you ought to do, what you actually choose to do is left to your court's discretion under the law.7

A Federal Rule of Civil Procedure could potentially supersede this statute if it complies with the strictures of the Rules Enabling Act and is approved by Congress. It would require consideration of whether a rule regarding case assignment is within the Enabling Act's delegation of authority to "prescribe general rules of practice and procedure," 28 U.S.C. § 2072(a). One could assert that a rule governing the assignment of cases is one of practice and procedure, as it does not implicate the merits of any claim. Such a judgment must be considered in the context of the history of the Congressional delegation of power to divide judicial business to the districts themselves. This issue will remain on the Advisory Committee's agenda as the districts continue to react to the Judicial Conference guidance. The Reporters will continue to monitor the situation as it develops.

Let's be very clear here what is going on. Senator Schumer and some law professors complained about a handful of federal judges. The judges and private members of this committee seem poised to accede to that criticism, even if it means adopting a potentially unlawful rule of Civil Procedure. And who would adjudge whether that reassignment policy is lawful? The same judges who authorized the rule.

Senator McConnell harpoons this proposal in National Review:

Simple statutory interpretation shows why the judicial bureaucrats have it wrong. The case-assignment statute has its roots in the Judicial Code of 1911. Two decades later, in 1934, Congress enacted the Rules Enabling Act, which governs the civil rules. Against that backdrop, Congress then enacted the case-assignment statute in 1948, directing that cases "shall be divided" among the judges in a district as the court sees fit.

Knowing full well that the Rules Enabling Act was out there, Congress gave a directive — not a suggestion — to the district courts, over which it has constitutive authority, as to how they must administer their dockets.

The Justice Department is skeptical. It says if this were the case, surely Congress "would have left some evidence in the statute's text or legislative history." Legislative history — the last refuge of a textual scoundrel.

The statute's text is the evidence: Congress mandated how the courts must manage their dockets. We should all take that at face value and not look for some broad, amorphous grant of legislative power to the judicial bureaucracy.

Indeed, the Supreme Court has warned against assuming that Congress has delegated broad legislative authority to other branches of government. Usually that's in the context of the executive branch, but it ought to apply to the judiciary, too. We can't assume that Congress gave the judicial bureaucracy a roving commission to rewrite the case-assignment statute through the Rules Enabling Act.

Why? Why do this? Remember, under the Rules Enabling Act, unless Congress passes a statute, through bicameralism and presentment, to disapprove of a rule, it goes into effect. And that process is subject to a filibuster. It cannot be that a handful of federal judges can override a federal statute unless Congress enacts a new statute.

And while we're at it, I've long thought that the Rules Enabling Act violates the Non-Delegation Doctrine. Relatedly, Ethan Leib recently wrote that the Federal Rules of Evidence are unconstitutional.  If the Rules Enabling Act actually gives the federal judiciary the power to override a federal statute, unless Congress disapproves, then the Non-Delegation Doctrine may have another very good year. Tread carefully. Or better yet, let five members of the Supreme Court give some clear guidance on nationwide injunctions and universal vacatur, so we can settle this madness in a way that is fair to all sides–not unilateral disarmament.