In the previous section of this report, I highlighted how multiple political and budgetary factors are limiting the number of judges needed to address the growing case overload in federal courts. 43 positions remained vacant by the end of 2014 due to confirmation politics, and the Judicial Conference of the United States has asked Congress for 68 additional judgeships to help address the backlog. It is dubious if all of these needs will be met considering Senate Judiciary Committee Chairman, Chuck Grassley’s (R-IA) budgetary reluctance and a deeply divided legislature. In this section, however, I will show how Congress’s inability to create effective legislation helps to pack federal courtrooms as well. Using 2 recent topics from this week as case-studies, it becomes apparent that Congress does more to undermine the judicial system than simply leave it short-staffed.
The first example is the largely toothless Toxic Substances Control Act (TSCA). This 1976 law gives the Environmental Protection Agency (EPA) the authority to regulate the chemical industry; except that it doesn’t. The length of EPA safety-testing process, up to 7 years, mixed with weak restrictive powers in the law’s language, has rendered it virtually useless. Only 9 out of a possible 84,000 chemicals under the TSCA’s scope have ever been banned or restricted, and only 250 of those have ever completed the testing process. Most notably absent from the banned chemicals is asbestos. The EPA attempted to ban the substance in 1989, but was swiftly rebuked in Federal Appeals court shortly thereafter.
Asbestos, a known carcinogen, continues to be legal in the U.S, despite its exposure killing an estimated 107,000 people per year worldwide. The TSCA has yet to be revised to include asbestos as a banned substance, although two different bills have recently been introduced in Congress to finally address the issue. One bill, however, is almost entirely written by the chemical lobby, and the other, penned by Democratic Senators Barbara Boxer and Ed Markey, and has very little likelihood of passage in a Republican-held Senate. The lack of effective legislation has turned asbestos lawsuits into a cottage industry, tying up federal courtrooms with hundreds of complaints annually. The deaths and legal cases have been preventable since 1976 simply by writing effective legislation to solve the problem as opposed to playing politics with safety.
The second example illustrates another way Congress needlessly ties up the federal court system. Despite over 80 convictions for insider trading, Congress has yet to draft specific statutory guidelines that define what insider trading actually is. Instead, they have largely relied on the judicial opinions of the 2nd Circuit Appeals Court or other rulings from the Southern New York District for their interpretation. Two recent opinions from Judges Sullivan and Rakoff appear to be a mandate from the district to Congress to define the law. For years of complaints in some circles about “activist judges,” it is curious to find a pair of judges actively urging Congress to draft legislation so they don’t have to do its job. As a response to the rulings, Congressional Democrats have introduced three bills defining the law, but it is unlikely that any will gain traction due to lack of bipartisan support. At best, Congress will wait until appeals to overturn existing insider trading convictions are heard, and then amend the proposed legislation based on the additional judicial interpretation.
This, of course, is the opposite of how the U.S. legal system is supposed to work, and the resources and man-hours spent addressing these cases illustrate another manner in which Congress is helping to overwhelm the federal court system. For its part, some in Congress have taken steps to address these examples, but the divisive nature of the current session will likely leave the measures stuck in committee. The status quo must not continue, however, unless the system becomes a complete mockery of delayed and denied justice. Either Congress must work to shore up existing legislation, and/or more resources must be put into federal courts in order to fulfill its Constitutional duties.
Legal Reader – Jay W. Belle Isle
Reuters – Nate Raymond
Wall Street Journal – Joe Palazzolo