The Northwestern Undergraduate Law Journal I S S U E 1 V O L U ME 1 Spring 2021
Northwestern Undergraduate Law Journal Volume I | Issue I | Spring 2021
The Northwestern Undergraduate Law Journal aims to promote intellectual discourse on a variety of subjects pertaining to the legal field. We publish undergraduate works that demonstrate the critical application of legal concepts to a diverse set of multifaceted issues. We encourage the submission of interdisciplinary research that explores both contemporary and historical phenomena within the context of the law, particularly research that incorporates elements of philosophical, scientific, economic and sociopolitical thought. The views expressed by the contributors are not necessarily those of the Editorial or Faculty Advisory Board of the Northwestern Undergraduate Law Journal. While every effort has been made to ensure the accuracy and completeness of information contained in this journal, the Editors cannot accept responsibility for any errors, inaccuracies, omissions, or inconsistencies contained herein. Issue no.1 Volume no.1, 2021 www.thenulj.org
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Northwestern Undergraduate Law Journal Volume I | Issue I | Spring 2021 Editor in Chief Jamie Miller
Senior Editor
Managing Editors
Grace Gay
Kirsten Huh Gabrielle Rancifer
Creative Team
Director of Pre Law
Haley Lawson Daniel Rodriguez
Allison Rhee
Director of Communications Flora Tian
Staff Writers Aidan Ocampo Andrew Kwa Ash Ravid Assem Belhadj Claire Lu Hannah Cheves Iris Lin Max Flinchum Neha Ramani Patrick Ales Reese Rosental Saporito
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Associate Journal Editors Alexandra Sirota Audrey Park Isabelle Sarraf Kaitlyn Seese Katherine Janda Kelly Miller Sally Hong
Treasurer Michelle Pak
Associate Forum Editors Arianna Staton Danielle Spitz Dheven Unni John Perales Jr. Joni Rosenberg Maayan Abouzaglo Michelle Pak Olivia Cohen Tess Ballis Maddy Bennett
Table of Contents Letter from the Editor
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A Legal Pandemic? COVID-19 and False Acts
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Should Environmental Protection....
Page 59
Power, Party, and Post-Apartheid
Page 88
War Crimes, the International Criminal Court Page 125
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Letter from the Editor Dear Reader, On behalf of the editorial staff of the Northwestern Undergraduate Law Journal, I am pleased to present the first issue of our journal. The Northwestern Undergraduate Law Journal was created to give undergraduate students across the country the opportunity to explore and broaden their interest in law. Since its inception, the NULJ has grown significantly. In our first year, we started a successful podcast, initiated a legal blog, hosted a high school essay contest, and put on a symposium that highlighted our journal and forum authors’ work. The inaugural edition of the journal contains four articles that offer unique legal perspectives on both domestic and international issues. The first half of this volume focuses on domestic issues, covering false claims liability surrounding COVID-19 in nursing homes and the future of environmental protection in the Constitution. The latter half of the volume focuses on international issues, examining political parties in South African law and the value of the ICC in addressing war crimes. This spring, we feature authors from Northwestern University itself in addition to Brown University, Yale University, and Tufts University. I would like to convey my gratitude to all that helped make the first year of NULJ a success. This publication is a result of the hard work of our Creative, Business, and Editorial Teams, as well as faculty reviewers, friends, and family. I am especially thankful for our Managing Editors, Kirsten Huh and Gabrielle Rancifer, and Senior Editor, Grace Gay, whose leadership and passion for the Northwestern Undergraduate Law Journal allowed us to have such an outstanding first year. I am also incredibly grateful to our Faculty Advisor, Galya Ben-Arieh, whose support and advice made our publication possible. It is my distinct honor to present to you the first issue of the Northwestern Undergraduate Law Journal. We hope to make Northwestern proud with this edition and with the many more to come. Thank you,
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Jamie Miller Editor in Chief
A Legal Pandemic? COVID-19 and False Claims Act Liability for Nursing Homes
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A Legal Pandemic? COVID-19 and False Claims Act Liability for Nursing Homes
Xiaoyu Huang Brown University Spring 2021
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1. Introduction The novel coronavirus (“COVID-19”) has caused one of the most disastrous pandemics in recorded history. As of late April 2021, there have been over 145 million recorded cases worldwide, with nearly 32 million cases in the United States alongside 570,000 deaths.1 The pandemic has been especially destructive for America’s nursing homes: nearly 40% of deaths occurred in skilled nursing facilities (“SNFs”) and long-term care facilities (“LTCFs”). 2 This astounding percentage, comprising approximately 110,000 related deaths, has urged some commentators to declare an impending “legal pandemic” for SNFs in the days and months to come as courts gradually reopen. 3 Since the highly criticized outbreak at Life Care Center of Kirkland in Washington State in February 2020, scrutiny of nursing homes has been intense. 4 Nursing homes are in a uniquely difficult position. Care providers have to tread a fine line between precaution and compassion as they scale back physical therapy, exercise, and community visits while simultaneously disallowing outside visitors, including family members, from accessing their premises. 5 These precautions are necessary because elderly people are at the highest risk due to advanced age and existing immunological deficiencies; even routine contact
1
“Covid World Map: Tracking the Global Outbreak,” New York Times (interactive) (accessed April 23, 2020), https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html. 2 “About 37% of U.S. Coronavirus Deaths are Linked to Nursing Homes,” New York Times (interactive) (accessed Nov. 20, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-nursing-homes.html. For the purpose of this Article, I use the term “nursing homes” to refer to any facility in which seniors live under supervised care, including SNFs, LTCFs, and other assisted-living facilities with a lesser degree of nursing intervention. 3 See William Harrington, Anne Railton, and Tucker DeVoe, “Next for America’s Nursing Homes: A Legal Pandemic,” New York Law Journal (Jun. 29, 2020), https://www.law.com/newyorklawjournal/2020/06/29/next-foramericas-nursing-homes-a-legal-pandemic/. 4 Mike Baker, “Nursing Home Linked to 37 Coronavirus Deaths Faces Fine of $600,000,” New York Times, Apr. 2, 2020 (updated Apr. 17, 2020), https://www.nytimes.com/2020/04/02/us/virus-kirkland-life-care-nursing-home.html. 5 Jack Healy, Danielle Ivory, and Serge F. Kovaleski, “‘A Slow Killer’: Nursing Home Residents Wither in Isolation Forced by the Virus,” New York Times (Oct. 30, 2020, updated Oct. 31, 2020), https://www.nytimes.com/2020/10/30/us/nursing-homes-isolation-virus.html. Page 8
with SNF employees, who undergo regular screening, heightens the risk of infection. 6 Operators are keenly aware of the risk of liability that may arise if residents contract the virus. Therefore, nursing homes have resorted to extremely restrictive protective measures, even over residents’ reasonable complaints of loneliness and anxiety that pose similar health challenges. 7 Recognizing that current public health conditions may result in practically limitless legal liability for nursing homes, many states have granted them immunity from civil liability. These appear sometimes via governors’ executive orders, usually predicated on prior announcements of states of emergency. 8 In some cases, immunity is granted via legislation, either through a new bill or through codification of previous executive orders. 9 These partial or complete immunitygrants do not foreclose the possibility of administrative fines in cases where investigative agencies have found gross negligence or intentional disregard of state health directives.10 Nevertheless, some legal actions have started in response to nursing home deaths caused by or related to the pandemic. At Holyoke Soldiers’ Home, a state-run facility in central
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Elaine Godfrey, “We’re Literally Killing Elders Now,” The Atlantic (Apr. 29, 2020), https://www.theatlantic.com/politics/archive/2020/04/coronavirus-especially-deadly-nursing-homes/610855/ (arguing that that the prevalence of low-age, overworked, and underinvested employees in long term care systems exacerbates the frailty of already high-risk residents). 7 See, Emily Paulin, “Is Extended Isolation Killing Older Adults in Long-Term Care?” AARP (Sept. 3, 2020), https://www.nytimes.com/2020/04/02/us/virus-kirkland-life-care-nursing-home.html. 8 See, inter alia, “Executive Order No. 7U: Protection of Public Health and Safety During COVID-19 Pandemic and Response – Protections from Civil Liability for Healthcare Providers and Billing Protections for Patients,” State of Connecticut (April 5, 2020), https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/LamontExecutive-Orders/Executive-Order-No-7U.pdf; and Matthew Santoni, “Pa. Gives Civil Immunity to COVID-19 Health Care Providers,” Law360 (May 6, 2020), https://www.law360.com/articles/1271198/pa-gives-civilimmunity-to-covid-19-health-care-providers. 9 See, inter alia, New York Public Health Law, Article 30-D, §§ 3080-3082 (partially redacted in August); An Act to Provide Liability Protections for Health Care Workers and Facilities During the COVID-19 Pandemic, State of Massachusetts (Apr. 17, 2020), https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter64; and Senate No. 2333 (An Act Providing Immunity from Liability for Certain Claims Alleging Injury or Death during Public Health Emergency and State of Emergency and Facilitating Issuance of Temporary Licenses and Certifications), State of New Jersey (Apr. 13, 2020), https://www.njleg.state.nj.us/2020/Bills/S2500/2333_R1.HTM. 10 Marina Villeneuve, “Inspections Found Nursing Homes Lapses as COVID-19 Raged in NY,” NBC New York (Sept. 25, 2020), https://www.nbcnewyork.com/news/local/inspections-found-nursing-home-lapses-as-covid-19raged/2635050/ (stating that nursing home in Buffalo, NY were fined by the NY Department of Health for failure to remove residents who have tested positive for COVID-19 from floors housing uninfected residents). Page 9
Massachusetts, an outbreak killed 76 veterans and sickened 84 more between March 1 and June 23, 2020.11 The chain of infections started when “Veteran 1,” who tested positive on March 21, 2020, was allowed to continue living with other veterans because in the opinion of one physician, isolation was a “moot point” since “everyone [had] been exposed to [COVID-19] already.” 12 Paul Sniadach, leading a class of residents and representatives of the deceased, alleged that five employees of the Home acted with “deliberate indifference” that “resulted in the spread of COVID-19.”13 Since the Home “[failed] to protect [residents] from harm… and/or provide them with minimally adequate medical and nursing care,” Sniadach alleged, the state-run facility violated the Due Process Clause of the 14 th Amendment by depriving the deceased of life without due process of law. 14 The plaintiffs are seeking damages north of $176 million. 15 This potential remedy, however, is potentially available to only residents of publicly funded facilities; non-state facilities must be held to account using other means. Privately run nursing homes face liabilities such as wrongful death and gross negligence. These theories, if pushed forward, will likely straightforwardly allege that nursing homes should have, but failed to, control the spread of the virus, directly causing injury or death. It appears that these theories are also broadly transplantable across plaintiffs. One small New York law firm is apparently preparing over 100 cases against various nursing homes in the wake of partial repeal of a state law “immunizing” nursing homes of civil liability, although the remaining immunity still shields operators from the pleading standard up to gross negligence with regard to incidents
11
Chris Villani, “Mass. Soldiers’ Home Sued Over Deadly COVID-19 Outbreak,” Law360 (Jul. 17, 2020) https://www.law360.com/articles/1293124?scroll=1&related=1. 12 Id. 13 Sniadach v. Walsh, No. 20-cv-30115 (D. Mass.), Complaint and Jury Trial Demand at 2. At the time of writing, at least two of the five of named defendants have pled not guilty. 14 Id. at 28. 15 Id. Page 10
in which residents contracted the virus. 16 Nevertheless, these theories will also likely face an uphill battle in court: where plaintiffs allege non-COVID-19 related injury or death, defendants will still raise some degree of prior state immunity as an affirmative defense. The remaining allegations over COVID-19 related injuries or deaths will have to overcome an extraordinary bar. Aside from Constitutional and negligence arguments, plaintiffs seeking to recover for nursing home COVID-19 related injuries or deaths have a third route: the federal and state False Claims Acts.17 This paper will examine the landscape of the False Claims Act (FCA) as it applies to nursing home liability in the wake of COVID-19. Specifically, it responds to concerns raised by a number of highly regarded practitioners that a 2016 Supreme Court decision, Universal Health Sers., Inc. v. United States ex rel. Escobar, will severely heighten the risk of FCA liability for nursing homes. 18 19 As will be explained herein, that case confirms the implied false certification theory of FCA prosecution as a valid basis for FCA liability, widening the scope of government inquiry into these facilities. At the very minimum, Escobar allows for more cases to
16
Frank G. Runyeon, “NY Nursing Home Virus Immunity Shrinks as First Suits Filed,” Law360 (Aug. 4, 2020), https://www.law360.com/articles/1298194/ny-nursing-home-virus-immunity-shrinks-as-first-suits-filed. The partial repeal of the New York state immunity law, called 30-D, strikes immunity for non-COVID-19 patients, even if the facilities’ ability to respond to non-COVID-19 exigencies is hampered by their COVID-19 response. 17 Many of states has adopted an identical or substantially similar version of the federal False Claims Act, 37 U.S.C. § 3729. See Office of the Inspector General, “State False Claims Act Reviews,” HHS (accessed Nov. 27, 2020), https://oig.hhs.gov/fraud/state-false-claims-act-reviews/ (stating that 21 states already have false claims acts that qualify for an incentive under § 1909 of the Social Security Act, meaning that they are identical or substantially similar to the federal version). For a brief overview of the FCA, infra, sec. 2.1-2.2. Federal jurisprudence on the FCA largely guide state jurisprudence on state FCAs. This Article only concerns the federal FCA. 18 195 L. Ed. 2d 348, 136 S. Ct. 1989 (2016). See, infra, sec. 3.2. 19 See, inter alia, W. Warren Hamel, Thora A. Johnson, Celia E. Van Lenten, Gerald S. Sachs, Evan T. Shea, Courtney A. Sullivan, Nicholas A. Mongelluzzo, and Joanna P. Breslow Boyd, “Department of Justice Launches National Nursing Home Initiative,” Venable LLP (Apr. 21, 2020), https://www.venable.com/insights/publications/2020/04/department-of-justice-launches-national-nursing; Chris Demeo, “Assisted Living Facilities Can Apply for CARES Provider Relief Funds… But Be Careful What You Ask For,” Seyfarth Shaw LLP (Sep. 8, 2020), https://www.seyfarth.com/news-insights/assisted-living-facilities-canapply-for-cares-provider-relief-funds-but-be-careful-what-you-ask-for.html; and Brian P. Dunphy, Geoffrey A. Friedman, Caitlin A. Hill, Jane T. Haviland, and Karen S. Lovitch, “COVID-19 Relief Programs: The Anticipated Wave of False Claims Act Cases and Oversight Agency Enforcement Activities,” Mintz, Levin, Cohn, Ferris, Glovsky & Popeo (Jul. 2, 2020), https://www.mintz.com/insights-center/viewpoints/2146/2020-07-02-covid-19relief-programs-anticipated-wave-false-claims. Page 11
move past the discovery phase, imposing large expenditures and professional anxiety for operators and nursing practitioners alike. This paper, however, argues that such concerns are overblown. Neither Escobar nor its district and appellate progeny require such a widened degree of contractor liability. In fact, the general absence of FCA cases against nursing homes from federal and state dockets since the start of the pandemic is itself evidence of the FCA’s lackluster appeal. The reasons for this ambivalence will unfold in the following sections. 2. Short History of the FCA 2.1 The First 150 Years The FCA was made at another time of national crisis – the Civil War. Congressional testimony from 1863 “painted a sordid picture of how the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed in the purchasing of necessities of war.” 20 In response, Congress intended to prevent contractors from submitting fraudulent or false claims for payment at a time when the State coffer was already strained. 21 Furthermore, Congress realized that it had limited resources to investigate potential fraud, and that private citizens, if enlisted, could help the government recover a larger percentage of fraud than it was otherwise able to. 22 Therefore, the FCA allows not only the government to unilaterally pursue contractors who fraudulently bill the government, but also private citizens to bring suit on behalf of the government. These litigations are called qui tam cases and individuals who thus intervene are called relators, commonly referred to as “whistleblowers.” The government may elect to intervene in a qui tam action by involving the Department of Justice and its investigative branches; or it may choose to decline, at which time
20
United States v. McNinch, 356 U.S. 595, 599 (1958). United States v. Bornstein, 423 U.S. 303, 309 (1976). 22 H. Rept. 111-97 (to accompany H.R. 1788), False Claims Act Correction Act of 2009 (May 5, 2009) at 28. 21
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the relator may continue or withdraw the action. 23 For his travails, the relator is entitled to an award totaling between 15% and 25% of the government’s total recovery, plus expenses; the award is increased to between 25% and 30% if the government did not proceed and the relator continued his action. 24 A qui tam action allows a relator to raise the government’s rights before the Court; otherwise, they would lack standing. Conversely, if a relator individually had standing on other grounds, then there is a strong inference against an actionable claim under the FCA. 25 Since the Civil War, the FCA has undergone several iterations. The most significant occurred in 1986 when Congress clarified and strengthened the FCA. 26 Since then, recoveries have increased to nearly $60 billion in total, adjusted for inflation. 27 There is often a spike in recoveries after crises such as Hurricane Katrina in 2005 and the financial crisis in 2008, a phenomenon corresponding with large and irregular government expenditures and a concurrent spike in both legitimate claims and unscrupulous fraudulent behavior.28 29 Unsurprisingly, commentators are predicting an increase in the FCA’s use during and following COVID-19.30 The FCA imposes liability on anyone who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” or “knowingly makes, uses, or
23
In practice, most declined FCA actions are subsequently withdrawn by the relator. 31 U.S.C. § 3730 (d)(1)-(2). 25 Additionally, generally, a relator may not personally benefit from a FCA action except through relator recovery. Granted, other benefits may exist for relators, such as exemption from “excessive” punishment from crimes uncovered in the course of the government’s intervention. See United States v. Halper, 490 U.S. 435 (1989). 26 “Justice Department Recovers Over $2.8 Billion from False Claims Act Cases in Fiscal Year 2018,” Department of Justice (Dec. 21, 2018), https://www.justice.gov/opa/pr/justice-department-recovers-over-28-billion-false-claimsact-cases-fiscal-year-2018. 27 Id. 28 Scott F. Roybal and Matthew T. Lin, “Guard Against False Claims as Massive Government Spending Rolls Out to Combat COVID-19,” National Law Review, Mar. 19, 2020, https://www.natlawreview.com/article/guard-againstfalse-claims-massive-government-spending-rolls-out-to-combat-covid-19. 29 In United States ex rel. Kraus v. Wells Fargo & Co., 943 F.3d 588 (2 nd Cir. 2019), the Court found that loan applications to reserve banks submitted during the 2008 crisis were “claims” within the meaning of the FCA. But even before this decision, there have been successful FCA prosecutions for fraudulent 2008 bailout loans. 30 See supra note 19. 24
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causes to be made or used, a false record or statement material to a false or fraudulent claim.” 31 Actions under these two clauses make up the bulk of FCA actions. In the 1986 amendment, Congress added 31 U.S.C. § 3729(b) to clarify the meaning of the words “knowing” and knowingly” and to lower the government’s burden of proof. 32 The defendant’s knowledge requirement, with regard to the truth or falsity of information in connection with a claim for payment, can be satisfied by one of: (1) actual knowledge; (2) deliberate indifference; or (3) reckless disregard. 33 These standards parallel requirements for other categories of fraud at common law. As is the case with other types of fraud, the FCA knowledge standard guards against the defense that honest error might absolve the defendant of liability. 34 But unlike the other types, “specific intent to defraud” is not a requirement under the FCA. 35 The language of the statute has not stopped certain courts from heaving a scienter requirement onto it anyway. 36 The FCA is meant to be punitive, not remedial. It “reveals [Congress’] intent to punish past, and to deter future, unlawful conduct, not ameliorate the liability of wrongdoers.” 37 The statute carries treble damages (three times the amount defrauded), plus up to $10,000 per false claim.38 The practical consequence of a successful FCA prosecution
31
for most corporations
31 U.S.C. § 3729(a)(1)-(2). S. Rep. No. 99-345 (False Claims Reform Act of 1985) (Jun. 28, 1986) at 200. 33 31 U.S.C. § 3729(b)(1)(A). 34 See United States v. Krizek, 111 F.3d 934 (D.C. Cir. 1997) (defendant dentist, who allowed his wife to submit claims for Medicare payment without reviewing them, was acting with reckless disregard and liable under the FCA). 35 31 U.S.C. § 3829(b)(1)(B). 36 For example, the 6th Circuit has held that in order to sustain a FCA claim, a plaintiff “must allege that (1) the defendant made a false statement or created a false record; (2) with scienter; (3) that was ‘material to the Government’s decision to make the payment sought in the defendant’s claim’; and (4) that the defendant submitted to the U.S. government causing it to pay the claim.” United States ex rel. SNAPP, Inc. v. Ford Motor Co., 618 F.3d 505, 509 (6th Cir. 2016) (emphasis added). 37 Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 784-85 (2000). 38 31 U.S.C. § 3729(1). It is already less punitive than it used to be. The FCA carried a penalty of $2,000 per false claim in 1863, which translates to more than $41,000 today. 32
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is bankruptcy. Less financially crippling yet quite substantial settlements, frequently heralded by the Department of Justice (DOJ), are often reached with the very threat of litigation. The most straightforward application of the FCA is for “a claim for goods or services not provided,” or “classic” fraud. 39 This theory simply requires a showing that the defendant made a factually false statement to the government in the course of obtaining a payment, either by submitting a claim for a good or service not rendered (including by overstating the quantity rendered or beneficiaries served), or by mischaracterizing the good or serve rendered as a more expensive type than was the case. However, the 1985 amendment also acknowledged that FCA liability may attach for claims “provided in violation of contract terms, specification, statute, or regulation.” 40 This theory, which has steadily become more commonly litigated, is known as implied false certification. Under this theory, the relator and government claim that the defendant violated a condition of government disbursement, thereby defrauding the government by causing it to pay for a good or service for which it did not agree to pay. Key to the viability of this theory is the question of whether the violation is “material” to the government’s decision to pay. A related, though somewhat rarer, query is whether the violated condition concerns an agreed-upon or baseline quality for the good or service. In certain cases, courts have recognized that these “worthless services” actions, as they have come to be called, are cognizable under the FCA. Both implied false certification and worthless services have been tested in the healthcare context. 41 The implied false certification theory was first recognized in 1994 in the Federal Court of Claims. In Ab-Tech Constr., Inc. v. United States, the Court found Ab-Tech’s claims for Small
39
S. Rep. No. 99-345, at 9. Id. 41 See, infra, sec. 2.2. 40
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Business Administration (SBA) disbursement to be fraudulent.42 Ab-Tech had engaged in a contractual arrangement with a third-party firm in violation of terms it agreed upon with the SBA, namely that Ab-Tech may not enter into such contracts without the SBA’s permission. 43 The Court found that Ab-Tech not only “dishonored the terms of its agreement with that agency but also, more importantly, caused the government to pay out funds in the mistaken belief that it was furthering the aims of the [incentive] program.” 44 Although the defendant was not expressly prohibited from such contractual agreements as a condition of participation, the court found that the acceptance of SBA funds “represented an implied certification by Ab-Tech of its continuing adherence to the requirements for participation.” 45 The Court essentially introduced, without relying on the term itself, a materiality standard: the contractual term to not engage in outside contracts without government permission, the Court asserted, was material to the decision to pay. Conversely, had the government known of the outside contract, it may have reversed its payment decision. After Ab-Tech, its brethren cases in the healthcare context have met varying levels of success when relying upon the implied false certification theory, usually depending on the Court’s view on how material the violation is to the government’s payment decision. 2.2 The FCA in the Elder Care Context Healthcare in the United States is funded by a mixture of public and private insurance. Elder care is covered federally by the Medicare program, enrolling nearly 60 million Americans in 2018.46 The expenditures are significant: that year, as a 15% share of the $4.1 trillion federal
42
31 Fed. Cl. 429, 434 (1994). Id. at 430-433. 44 Id. at 434. 45 Id. 46 Office of Enterprise Data and Analytics, “Total Medicare Enrollment: Total, Original Medicare, and Medicare Advantages and Other Health Plan Enrollment, Calendar Years 2013-2018,” CMS, https://www.cms.gov/files/document/2018-mdcr-enroll-ab-1.pdf. 43
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budget, Medicare spending amounted to $605 billion. 47 As the largest purchaser of healthcare in the world, the U.S. federal government, like any contractor, has an interest in the quality and efficacy of the goods and services it buys on behalf of insured Americans. However, the government is not able to do so directly. Once Medicare funds reach individual states, the states individually monitor, regulate, and enforce the disbursement of federal funds. These tasks fall upon state regulatory bodies and licensing boards, which “routinely summon their police power to establish quality standards, and to monitor and enforce quality case expectations.” 48 Accordingly, the federal government suffers from a lack of direct information about the use of its funds. The FCA, which is designed to repair information asymmetries in the revelation of fraud, is an oft-used tool to pursue fraudulent players in the healthcare market. At the outset of service provision, the federal government imposes certain requirements of its contractors. The Centers for Medicare and Medicaid Services (CMS) imposes Conditions of Participation (CoPs), which require providers to undergo CMS scrutiny to determine whether it meets the requirements for environment and care. 49 Each type of healthcare entity is subject to a different set of Quality, Safety, & Oversight standards and is required to make certain certifications regarding its compliance with quality-of-care laws and regulations. 50 Such certifications often include broad requirements stated in general terms in regulatory texts. For example, nursing homes must agree to “ensure quality of care and quality of life for all
47
Juliette Cubanski, Tricia Neuman, and Meredith Freed, “The Facts on Medicare Spending and Financing,” KFF (Aug. 20, 2019), https://www.kff.org/medicare/issue-brief/the-facts-on-medicare-spending-and-financing/. 48 John T. Brennan, Jr., and Michael W. Paddock, Limitations on the Use of the False Claims Act to Enforce Quality of Care Standards in 2 J. Health & Life Scis. L. 1 (Oct. 2008) at 41. 49 “Conditions for Coverage (CfCs) & Conditions of Participation (CoPs),” CMS (accessed Nov. 27, 2020), https://www.cms.gov/Regulations-and-Guidance/Legislation/CFCsAndCoPs/index. 50 See, in the context of nursing homes, “Quality Safety & Oversight – Guidance to Laws & Regulations,” CMS (accessed Nov. 27, 2020), https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/GuidanceforLawsAndRegulations. Page 17
residents” and “provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being…” 51 There are also individually negotiated Conditions of Payment that are separate CoPs that, once agreed upon, providers must agree to in order to receive payment. For example, according to the relevant statute, Medicare will reimburse a provider “only if” specialists certify the necessity of the services rendered. 52 To the extent that CoPs and Conditions of Payment provide a means of protecting against nursing home fraud, they are inherently vague and provide
little definition about what
constitutes concepts such as “quality of life.” For example, where the statute provides a list of specific physical ailments that complying SNFs must address, it cannot possibly be comprehensive. 53 In these cases, “judges have to interpret the law as written” and courts will “interpret the plain meaning and logical interpretation” of federal regulations. 54 CMS also depends on the Office of the Inspector General (OIG), housed within the Department of Health and Human Services (HHS), to audit and inspect its vendors. Aside from its own administrative penalties, the OIG makes referrals to the DOJ in cases of suspected illegality. The FCA is frequently the DOJ’s legal tool of choice in fraud suits against nursing homes. In 1987, HHS was named the plaintiff in 4 of 34 of FCA litigations; by 2005, it was named the plaintiff in 270 of 551 such litigations, and in 54% of all FCA cases between 1987 and 2005, overcoming a slow start. 55 Overall, healthcare recoveries carry the balance of total FCA recoveries. In FY 2018, for example, more than 85% of the government’s $2.8 billion FCA
51
42 U.S.C.F.R. § 483.24. 42 U.S.C.F.R. § 1395f(a). 53 See, inter alia, 42 U.S.C.F.R.§ 483.25 (detailing certain quality of care standards in nursing homes (such as vision, foot care, and bedsores), but making clear that that liability attachment is “not limited” to these standards). 54 United States v. NHC Healthcare Corp., 115 F. Supp. 2d 1149, 1152 (W.D. Mo., S.D. Aug. 30, 2000). 55 The Hon. Charles E. Grassley, “Information on False Claims Act Litigation,” letter to the Hon. F. James Sensenbrenner, Jr. and to the Hon. Chris Cannon (Jan. 31, 2006) at 26. 52
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recovery involved healthcare corporations. 56 That number includes both amounts awarded from the bench and settlements. The latter are clearly large enough to placate the DOJ from further litigation and are frequently preferred by investigated facilities as well, since the treble damages of the FCA may be even greater, and settlement obviates recognition of civil liability. The earliest example of nursing home settlement in a FCA litigation came in 1999, in a case filed in the Eastern District of Pennsylvania, where the DOJ settled for $25,000 with a manager of a nursing home for “grossly inadequate” nutritional and wound care services. 57 Subsequently, in 1998, in the same district, the DOJ settled for $500,000 under the FCA for claims for reimbursement for a graver set of allegations, including injuries suffered as a result of inadequate care. 58 Over time, settlements have become larger. In 2014, Extendicare Health Services paid $38 million to settle FCA allegations regarding substandard care, amounting to the largest skilled nursing settlement in the DOJ’s history and then-high point of decades of successful FCA-related settlements against nursing homes. 59 Importantly, the government does not only rely on qui tam relators, but also initiates its own investigative activities. For example, in 2019, Vanguard Healthcare agreed to pay $18 million to settle a DOJ lawsuit, the largest worthless services resolution in Tennessee’s history. The alleged offenses are graphic and shocking: failure to provide standard infection control, failure to provide wounded care, use of unnecessary physical restraints, forged physician signatures, among others. 60 There is little
56
“Justice Department Recovers Over $2.8 Billion from False Claims Act Cases in Fiscal Year 2018,” DOJ (Dec. 21, 2018), https://www.justice.gov/opa/pr/justice-department-recovers-over-28-billion-false-claims-act-cases-fiscalyear-2018. 57 See United States v. GMS Mgmt.-Tucker, Inc., No. 96-1271 (E.D. Pa. Mar. 6, 1996). 58 See United States v. Chester Care Center, No. 98-CV-139 (E.D. Pa. Feb. 2, 1998). 59 “Extendicare Health Services Inc. Agrees to Pay $38 Million to Settle False Claims Act Allegations Relating to the Provision of Substandard Nursing Care and Medically Unnecessary Rehabilitation Therapy,” DOJ (Oct. 10, 2014), https://www.justice.gov/opa/pr/extendicare-health-services-inc-agrees-pay-38-million-settle-false-claims-actallegations. However, settlement amounts in other industries, like pharmaceuticals, are often much higher. 60 Id. Page 19
question that these atrocities violate a constellation of federal healthcare regulations and CoPs. Importantly, these detailed allegations arose out of the DOJ’s unilateral investigations, signaling that the government is invested, at least in the short run, in aggressive investigative actions and using the FCA to recover for fraud. 61 Ultimately, Vanguard entered into bankruptcy proceedings and ultimately surrendered just $6 million, but the case leaves little doubt as to the government’s zeal in fully deploying the FCA. 62 Vanguard’s willingness to settle under these circumstances also signals its lack of confidence in the viability of a defense against the government’s allegations of worthless services. The case, therefore, is not only significant for its showing of the government’s enforcement intensity but also the perceived strength of a little-known theory. 2.3 Government Scrutiny on Nursing Homes in Response to COVID-19 In late February, at the Federal Bar Association’s Qui Tam Conference, Assistant Attorney General Jody Hunt said that improper care and billing at nursing homes were one of the DOJ’s top 2020 healthcare enforcement priorities. 63 This comment was made before nationwide shutdowns went into effect and the first nursing home COVID-19 outbreaks were reported. Both before and after national awareness of the pandemic, the DOJ signaled its intention to focus its resources on nursing homes. On March 3, Attorney General William Barr announced the National Nursing Home Initiative, with which he intended the DOJ to “coordinate and enhance civil and criminal efforts to protect homes that provide grossly substandard care to their residents.” 64 This announcement came at a time
when, already, 39 homes in nine states were
being investigated. Days later, on March 16, Barr directed all U.S. Attorneys to “remain vigilant
61
“Vanguard Health Agrees to Resolve Federal and State False Claims Act Liability,” DOJ (February 27, 2019), https://www.justice.gov/opa/pr/vanguard-healthcare-agrees-resolve-federal-and-state-false-claims-act-liability. 62 Id. 63 Harrington et al., “Next for America’s Nursing Homes: A Legal Pandemic.” 64 “Department of Justice Launches a National Nursing Home Initiative,” DOJ (Mar. 3, 2020), https://www.justice.gov/opa/pr/department-justice-launches-national-nursing-home-initiative. Page 20
in detecting, investigating, and prosecuting wrongdoing related to the [COVID-19] crisis… [and] ensure that… all appropriate enforcement tools are available to punish it.” 65 Swiftly thereafter, Deputy Attorney General Jeffrey Rosen directed each U.S. Attorney to appoint a Coronavirus Fraud Coordinator to serve as counsel for each federal judicial district on COVID-19 related matters.66 Taken together, these steps leave little doubt as to the DOJ’s persistent focus on pursuing nursing homes both before and after the pandemic captured public attention. As the DOJ trained its attention on nursing homes, other departments were in lockstep. For example, in March 2020, the HHS Office of Inspector General started to conduct a “Nursing Home Life Safety and Emergency Preparedness Review” to “determine whether LTC facilities that received Medicare or Medicaid funds complied with new Federal requirements for life safety and emergency and infectious disease control preparedness.” 67 The tone of the announcement is noncommittal, and the expected issue date is not until FY 2021, but the phrase therein that “new Federal requirements for… infectious disease control preparedness” leaves little doubt that HHS will closely scrutinize COVID-19 response measures at nursing homes. On March 10, 2020, HHS further issued a “Guidance for Infection Control and Prevention” document.68 The CMS, whose parent agency is the HHS, followed closely behind. In April, it announced new regulatory requirements, stylized as a “Transparency Effort,” requiring nursing
65
Office of the Attorney General, “COVID-19 – Department of Justice Priorities” (Memorandum for all United States Attorneys) (Mar. 16, 2020), https://www.justice.gov/ag/page/file/1258676/download. 66 “U.S. Attorney Appoints Coronavirus Fraud Coordinator for Region,” United States Attorney’s Office for the Middle District of Georgia (Mar. 27, 2020), https://www.justice.gov/usao-mdga/pr/us-attorney-appointscoronavirus-fraud-coordinator-region. 67 Office of the Inspector General, “Medicaid Nursing Home Life Safety and Emergency Preparedness Reviews,” HHS (accessed Nov. 27, 2020), https://oig.hhs.gov/reports-and-publications/workplan/summary/wp-summary0000453.asp. 68 Center for Clinical Standards and Quality, “Guidance for Infection Control and Prevention Concerning Coronavirus Disease 2019 (COVID-19) in Home health Agencies (HHAs) and Religious Nonmedical Healthcare Institutions (RNHCIs),” CMS (Mar. 10, 2020, rev. Apr. 23, 2020), https://www.cms.gov/files/document/qso-20-18hha-revised.pdf. Page 21
homes to disclose COVID-19 cases directly to the Centers for Disease Control (CDC). 69 By May 18, the Director of the Quality, Safety & Oversight Group, CMS had also issued a “Nursing Home Reopening Recommendations for State and Local Officials,” elucidating stringent “nonbinding guidelines” in a series of “aggressive efforts to limit COVID exposure.” 70 Simultaneously, states scaled up enforcement efforts. In New Jersey, Governor Phil Murphy announced recommendations from a “rapid review” of New Jersey’s long-term care facilities, conducted by an outside law and consulting firm. 71 Recommendations include “facilitating ability to enhance regulatory oversight” and “[requiring] LTC facilities to publicly post (i.e., on websites) policies otherwise required to be compliant with state law.” 72 These requirements do not necessarily incentivize further DOJ scrutiny, nor do they impose strenuous additional efforts on the part of the homes themselves, but they drastically increase the amount of publicly available pandemic-related information that homes have hitherto exposed. In the meantime, the review leaves plenty of room elsewhere in its text to leave open the possibility of additional government enforcement actions, if not implicitly endorsing such action. 2.4 The CARES Act and its Provisions to Nursing Homes On March 26, the Senate passed a $2 trillion COVID-19 aid package, stylized as the CARES Act, which provided $150 billion to public health. 73 The bipartisan legislation is
69
“Trump Administration Announces New Nursing Homes COVID-19 Transparency Effort,” CMS (Apr. 19, 2020), https://www.cms.gov/newsroom/press-releases/trump-administration-announces-new-nursing-homes-covid19-transparency-effort. 70 Center for Clinical Standards and Quality, “Nursing Home Reopening Recommendations for State and Local Officials,” CMS (May 18, 2020, rev. Sept. 28, 2020), https://www.cms.gov/files/document/qso-20-30-nh.pdf. 71 “Governor Murphy Announces Recommendations from Review of New Jersey’s Long-Term Care Facilities,” State of New Jersey (Jun. 3, 2020), https://nj.gov/governor/news/news/562020/approved/20200603a.shtml. 72 Recommendations to Strengthen the Resilience of New Jersey’s Nursing Homes in the Wake of COVID-19, Manatt, Phelps & Phillips, LLP (Jun. 2, 2020) at 42, https://nj.gov/governor/news/news/562020/docs/6-2-2020NJ%20LTCResilience.pdf. 73 Kelsey Snell, “What’s Inside The Senate’s $2 Trillion Coronavirus Aid Package,” NPR (Mar. 26, 2020), https://www.npr.org/2020/03/26/821457551/whats-inside-the-senate-s-2-trillion-coronavirus-aid-package. Page 22
intended to provide “fast and direct” economic assistance to individuals and key industries. 74 A Congressional Pandemic Response Accountability Committee was established, comprising Inspectors Generals from multiple federal agencies, whose charge it was to prevent misuse of CARES Act funds. 75 This body could make referrals to the DOJ in instances in which it finds potential fraud, amplifying existing nexuses between agencies and the DOJ in preventing fraud. The Trump Administration’s focus on oversight makes fiscal sense, as the dollar amounts involved are massive. More than $2 billion have been paid to the COVID-19 Claims Reimbursement program for the testing and treatment of the uninsured. 76 With regard to nursing homes, nearly $2.5 billion dollars have been directly allocated, as part of a $5 billion overall Provider Relief Fund. 77 Secretary of Health and Human Services Alex Azar III stated that the funds would be used to “[protect] the most vulnerable, including older Americans,” but that the $2.5 billion direct funding was intended as a “pay for performance” program to “ensure [that] the Federal Government is paying for better outcomes.” 78 The Administration’s outcome-focused dispensing of CARES funds is therefore not only harmonious with its anti-fraud commitment, but also supported by its requirements of upfront certification of specific application. 3. Implied False Certification and Nursing Home Liability Under the FCA As discussed in Section 2, the federal government is invested in pursuing nursing homes for potential misuse of preexisting and pandemic relief funds. This section details how the FCA
74
“The CARES Act Works for All Americans,” Dept. of the Treasury (accessed Nov. 27, 2020), https://home.treasury.gov/policy-issues/cares. 75 “The Pandemic Response Accountability Committee: Organization and Duties,” Congressional Research Service (Apr. 28, 2020), https://crsreports.congress.gov/product/pdf/IN/IN11343. 76 “COVID-19 Claims Reimbursement,” HRSA (accessed Nov. 27, 2020), https://coviduninsuredclaim.linkhealth.com/. 77 “HHS Announces Allocations of CARES Act Provider Relief Fund for Nursing Homes,” HHS (Aug. 7, 2020), https://www.hhs.gov/about/news/2020/08/07/hhs-announces-allocations-of-cares-act-provider-relief-fund-fornursing-homes.html. 78 Id. (internal quotation marks omitted). Page 23
has been and may be used to prosecute nursing homes for alleged fraud. As mentioned in section 1, nothing in the text of the federal FCA requires that the government show that the defendant acted with intent to defraud. 79 Furthermore, the government is not required to show that it knew about the alleged fraud before a qui tam relator brought it to the government’s attention. Nevertheless, government knowledge and its subsequent response have been said to be “highly relevant… [because it can show] that the defendant did not submit its claim in deliberate ignorance or reckless disregard for the truth.” 80 Specifically, whether the government continued to disburse following its becoming aware of the alleged implied false certification can help determine whether the government considers that false certification to be “material” for the purpose of determining FCA liability. This test arose out of the emergence of the implied false certification theory from the more robust case law involving fraud and express false certification. At least before 1986, FCA suits brought against healthcare providers were almost solely composed of express false certification cases. This theory will still continue to be relevant in nursing home enforcement in the post-pandemic era. For example, there will likely be an increase in litigation to do with false or misleading statements that misrepresent the price, efficacy, and quantity of vaccines, experimental treatments, medical devices, treatments, and prophylactic measures for which nursing homes request reimbursement. However, practitioners and commentators are predicting an even more drastic uptick in enforcement action that relies on the theory of implied false certification. 81 This theory requires the defendant to have “[submitted] a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant’s noncompliance
79
See supra sec. 1 and accompanying notes. United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991). 81 See supra note 19. 80
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with a statutory, regulatory, or contractual requirement.” 82 Furthermore, the case law has identified both “explicit” false representations (for example, where the defendant affirmatively certifies that she is in compliance with a statute when she in fact is not, and compliance is material) and “implicit'' false representations (for example, where the defendant claims that he is qualified to perform a service when he is not, and requests reimbursement for that service using the fraudulent qualifications) under the implied false certification theory. In the wake of Escobar, in which the Supreme Court recognized the applicability of the implied false certification theory to the FCA with a convincing 7-2 majority, implied false certification has been prophesized to drastically widen the FCA liability faced by SNFs and other care providers. In a leading article on healthcare and the FCA, John Brennan and Michael Paddock articulated three categories of implied false certification: (1) cases where a defendant certifies compliance with statutes of regulations where conformance is a condition of payment; (2) cases where a defendant certifies compliance with “all applicable laws and regulations” and other analogously broad formulations; and (3) cases where care is so extremely substandard that claims are practically factually false (“worthless services”). 83 A fourth type may well be added: “implicit” implied false certification cases where a defendant fails to comply with a statute or regulation, the conformance with which is not an explicit condition of payment. All four types of certification require the finding of whether the implied falsity is material to the decision to pay. 3.1 FCA Materiality in the Appellate Courts In United States v. Wells, the Supreme Court established what is now a well-known threestep test of statutory interpretation to determine that the federal crime of making a false
82 83
Escobar at 1995. Brennan and Paddock, Limitations on the False Claims Act at 48.
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statement to a federal bank does not carry a materiality standard. 84 The Court’s pronouncement on “materiality” therein is pertinent to this Article because it enables the parallel question of whether a materiality standard existed at all for the purpose of the FCA. Simply stated, an implied false certification is material if it is important to or has a weighty influence on the government’s payment decision. If the government gained knowledge of fraud and subsequently withheld payment or issued a warning to the vendor, there would be a strong inference that the implied false certification is material to the payment decision. If the government continued to pay, on the other hand, there would be a strong inference that the falsity is not material. Importantly, if there was no materiality standard, then virtually any false certification, if proven, can be found to carry FCA liability. To that end, many appellate courts have weighed the “importance” and “influence” of these false certifications in the FCA context (in other words, they have applied a materiality test). 85 These include almost every numbered circuit as well as the District of Columbia and Federal circuits. 86 Possibly only one circuit, the Second Circuit, had registered its ambivalence on the issue. 87 Courts appear to be split on whether the implied false certification must be “express” (i.e. whether the defendant must have made an affirmative false statement). Furthermore, before Escobar, some circuits evidently had a lower materiality bar than others. The remainder of this subsection briefly traces these broad prior trends.
84
519 U.S. 482, 490-92 (1997). Black’s Law Dictionary defines material as “[important]; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form.” 86 See United States. ex rel. A+ Homecare v. Medshares Mgmt., 400 F.3d 428, 442 (6th Cir. 2005) (naming, without claiming to do so dispositively, the Fourth, Fifth, Seventh, Eighth, and District of Columbia circuits as courts that recognize materiality in the FCA). This section reveals that other circuits have applied materiality in some form. 87 See infra, sec. 3.3. 85
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Generally, the First, Sixth, Ninth, Eleventh, District of Columbia, and Federal circuits are considered to have a relaxed materiality bar. 88 In U.S. ex rel. Prather v. Brookdale Senior Living Cmtys., Inc., the Sixth Circuit considered the government’s reaction to knowledge of fraud to have “no bearing on the materiality analysis.” 89 Somewhat more restrictively, the Ninth Circuit had determined that an FCA action under the implied false certification theory is adequately pled if there was “more than the mere possibility that the government would be entitled to refuse payment if it were aware of the violations.” 90 These zero or non-zero formulations of FCA liability are generally construed to be amenable to relators and the government. On the other hand, other circuits have found materiality to be more restrictive in implied false certification cases, sometimes for different reasons. In United States ex rel. Petratos v. Genentech Inc., the Third Circuit ruled that the relator’s failure to show proof of payment denials by the government “militates against a finding of materiality” where the government had a priori knowledge of statutory noncompliance. 91 In the Eighth Circuit, in a case where a student-loan contractor was alleged to have used false certification to defraud the Department of Education of interest subsidies, the Court recognized the implied false certification but faulted the original complaint for failing to show “why these alleged regulatory violations were material to the government.”92 Additionally, the Eleventh Circuit had asked the FCA plaintiff to show why the government was misled by these omissions. 93 This patchwork of “who, what, where, when, why, how” materiality standards imposes upon plaintiffs different challenges in each federal district.
88
See Latoya C. Dawkins, Not So Fast: Proving Implied False Certification Theory Post-Escobar, 42 Seton Hall Leg. J. 1 (2017) at 174 (arguing that the First, Eleventh, District of Columbia, and Federal circuits have relaxed materiality standards). 89 802 F.3d 822, 834 (6th Cir. 2018). 90 United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890, 907 (9th Cir. 2017). 91 855 F.3d 481, 490 (3rd Cir. 2017). 92 See United States ex rel. Vigil v. Nelnet, Inc., 639 F.3d 791, 799-800 (8th Cir. 2011) (emphasis added). 93 Hopper v. Solvay Pharms., Inc., 588 F. 3d 1318, 1330 (11th Cir. 2009). Page 27
In conclusion, where some circuit courts have created a low bar for FCA materiality, others are wary of taking the FCA’s provisions to their logical extremity and have articulated different safeguards against making the FCA a catch-all net for plaintiffs to wield against any defendant who has knowingly violated a statute, regulation, or contractual clause. Where compliance is explicitly a requirement of payment, courts are similarly wary of taking the implied false certification “too far.” 94 However, materiality is the rule, not an exception. 3.2 The Escobar Case and its Implications After a few years during which the Supreme Court docket was relatively barren of FCA cases, it reached a landmark ruling in the 2016 case Universal Healthcare Service v. United States ex rel. Escobar. The Court granted certiorari at least in part for the case’s emotionally compelling narrative, which involved the death of a mentally ill juvenile, although the stated reason for granting certiorari is to resolve circuit splits over the “validity and scope” of the implied false certification theory of liability. 95 Justice Thomas delivered the majority opinion. Massachusetts resident Yarushka Rivera was a patient at Arbour Counseling Services, a subsidiary of petitioner Universal Healthcare. 96 Arbour allegedly submitted reimbursement claims for counseling but failed to disclose violations governing professional qualifications and licensing requirements. 97 Yarushka died after she had a reaction to medication prescribed by an unlicensed staff member. 98 Apparently, Arbour employees had attached National Provider
94
See, inter alia, United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 378 (4 th Cir. 2008). The Court wrote therein, “The [FCA]… cannot be construed to include a run-of-the-mill breach of contract action that is devoid of any objective falsehood. The FCA relator cannot base a fraud claim on nothing more than his own interpretation of an imprecise contractual provision. To hold otherwise would render meaningless the fundamental difference between actions for fraud and breach of contract.” Granted, whether there was a breach at all in Wilson was disputed, but the Court’s point holds and has been quoted in a wide range of subsequent decisions. 95 Universal Health Care Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1998 (2016). 96 Id. at 1993. 97 Id. at 1997. 98 Id. Page 28
Identification numbers to its unlicensed staff members as part of their claim for payment. 99 Yarushka’s parents filed a qui tam suit under the implied false certification theory of FCA liability, alleging that Arbour’s noncompliance violated Massachusetts Medicaid regulations. The district court dismissed without prejudice and the First Circuit reversed, holding that every submission of a claim amounted to a certification of compliance with relevant regulations, and any undisclosed violation renders a claim “false or fraudulent.” 100 The First Circuit further held that the regulations themselves “provided conclusive evidence that compliance was a material condition of payment because the regulations expressly required facilities to supervise staff as a condition of payment.” 101 The Court did not discuss government knowledge or action. The Supreme Court vacated and remanded. 102 It made the following pronouncements: 1. “[At] least in certain circumstances, the implied false certification theory can be a basis for liability. Specifically, liability can attach when the defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant’s noncompliance with a statutory, regulatory, or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading.” 103 2. Liability “for failing to disclose a violation of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment… What matters is not the label the Government attaches to a requirement, but whether the
99
Id. at 1994. Id. at 1993, 101 Id. (emphasis added). 102 Id. at 2004. 103 Id. at 1995. Note, however, that not every regulation to which payment recipients profess compliance in the healthcare context is a CoP, much less a condition of payment. 100
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defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision.”104 The first holding can be construed as a net win for FCA plaintiffs. The decision overruled a number of circuits that had previously held that violation of a statute or regulation cannot form a viable FCA cause of action unless payment is predicated upon compliance. 105 In circuits where the implied false certification theory is not explicitly recognized or severely restrained by prior dicta on pleading requirements, Escobar opened
the door to a wider ambit of such actions.
However, the second holding arguably tightened
the materiality requirement. Regardless of
whether compliance is expressly required in order to be reimbursed, the standard after Escobar requires not only “government knowledge” but also “defendant knowledge.” As the moving party, the relator or government shoulders the burden of meeting Escobar’s second standard. Escobar also offered some clarity to the meaning of materiality itself. Expanding on the FCA’s built-in definition of materiality as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property,” the Court added that the standard also must be “demanding.” 106 107 It looks to the effect of the “likely or actual behavior of the recipient” of the implied false certification – the government. 108 Non-dispositive considerations include (1) “the Government’s decision to expressly identify a provision as a condition of payment”; (2) whether “the Government consistently refuses to pay claims in the mine run of
104
Id. (emphasis added). See, e.g., United States ex rel. Gross v. AIDS Research Alliance-Chi., 415 F.3d 601, 604 (7th Cir. 2005). 106 False Claims Act, 31 U.S.C. § 3729(b)(4) 107 Escobar, 136 S. Ct. at 1989, 2003. 108 Id. at 2002. 105
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cases based on noncompliance with the particular… requirement”; (3) whether the “noncompliance is minor or insubstantial” or if it goes to “the very essence of the bargain.” 109 Ultimately, the Court’s decision hinged on the extremeness of the First Circuit’s prior ruling, and the materiality analysis was informed by the specific facts of the case. The plaintiffs represented that specific types of counseling were performed by providers with specific titles, yet the claims did not disclose that Arbour had not met basic licensing needs for mental health facilities under state regulations.110 In other words, Arbour falsely implied its certification with Massachusetts requirements. That these violations, resulting in the death of a young girl, are “material” to the government’s payment decision is emotionally and factually intuitive in a way that
might not be in other cases. The use of the FCA in these circumstances is also intuitive:
the administrative state is not large enough for the government to check every single representation, and the relator’s role in exposing misrepresentation is indispensable to recovery. However, the Court strongly rebuked the First Circuit’s holding that almost any regulatory violation would suffice to state a claim: “[If] the Government required contractors to aver their compliance with the entire U.S. Code and Code of Federal Regulations, then under [the First Circuit’s] view, failing to mention noncompliance with any of those requirements would always be material. The False Claims Act does not adopt such an extraordinarily expansive view of liability.” 111 The First Circuit’s eagerness to lower the materiality bar in its prior ruling turns out to be its Achilles’ heel. It seems that appellate courts had not previously imposed the “defendant knowledge” standard before Escobar, and its inclusion seemed to be pointed against overzealous circuits that have reduced the materiality bar to zero or near-zero.
109
Id. at 2005. Id. at 1997. 111 Id. at 2004. 110
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But in imposing a materiality standard, stated by Justice Thomas as requiring the defendant to know about materiality to the government, the Supreme Court created a novel scienter-like requirement in what cannot be read as less than a reactionary move to the First Circuit. Ironically, by remanding the case back down to the district court, the Supreme Court also continued to deny Yarushka’s family any emotional or pecuniary relief. 112 If anything, Escobar poignantly shows the inability of the FCA to offer timely redress to victims of medical malpractice. It also harkens into the future, exhorting COVID-19’s victims not to do the same. 3.3 Mikes v. Straus: A Key Case Abrogated While Escobar foisted upon plaintiffs a novel “defendant knowledge of materiality-tothe-government” requirement, it also lowered the materiality threshold by removing the need for an express statement that compliance is a precondition of payment in order for FCA liability to attach. Namely, Escobar explicitly abrogated United States ex rel. Mikes v. Straus, the most important circuit-level case barring “implicit” false certification, in relevant part, upending years of hefty FCA jurisprudence based on the holdings of the Mikes court.113
fifteen
Mikes had permitted the implied false certification theory to attach only where there is an express agreement between government and vendor that compliance with relevant statutes or regulations is a precondition of payment. Relator Dr. Patricia Mikes claimed that a group of her colleagues had violated American Thoracic Society guidelines by performing spirometry tests on improperly calibrated equipment, due to and in spite of their insufficient training. 114 Therefore, she argued, the defendant’s claims for payment for these services are false claims. 115 The relator
112
The victim died in October 2009. United States ex rel. Mikes v Straus 274 F.3d 687 (2nd Cir. 2001), abrogated by Universal Health Sers., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 195 L. Ed. 2d 348 (2016). 114 Id. at 687-692. 115 Id. at 692. 113
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also alleged technical violation of Medicare CoP by the physicians employed by the defendant, who she claimed skirted their responsibility “to assure… [that the services] will be of a quality which meets professionally-recognized standards of care.” 116 The Second Circuit disagreed. On its face, Mikes seem factually parallel to those in Escobar, but the relator did not allege anything near the deadly result in the latter case. While the Mikes Court’s opinion is silent on the matter of actual harm, the fact the relator failed to allege any harm to the recipients of these tests evidently factored into the Court’s reasoning. Perfunctorily acknowledging the possibility of a “legally false” theory, the Court went on to deal it a crushing blow. 117 Dispensing completely with its merits, the Court stated that “a claim for reimbursement… is not legally false simply because the particular service furnished failed to comply with [conditions]… that [are] only tangential to the service for which reimbursements are sought.” 118 It acknowledge Ab-Tech but did not agree with its application, saying that the case “does not fit comfortably into the health care context because the False Claims Act was not designed for use as a blunt instrument to enforce compliance with all medical regulations.” 119 The Court found that proper licensing “establishes conditions of participation, rather than [acts as] prerequisites to receiving reimbursement.” 120 HHS has other remedies beside the FCA, including sanction, wrote the Court; peer review organizations should make these reviews, not the courts. 121 Besides, the opinion states, as a policy consideration “courts are not the best forum to resolve medical issues concerning standards of care”; otherwise “qui tam plaintiffs would… promote federalization of
116
Requirements for Long Term Care Facilities, 42 U.S.C.F.R. § 1320c-5(a)(2). Id. at 700 (citing S. Rep. No. 99-349 at 9, reprinted in 1986 U.S.C.C.A.N. 5264, 5266). 118 Id. at 697. 119 Id. at 699-700 (citing Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985)). The comment is somewhat perplexing because it is not clear that in the case of Ab-Tech, the FCA was designed as a “blunt instrument” to enforce compliance with SBA contract rules, but the Court’s point may still be taken. 120 Id. at 701-02. 121 Mikes, 274 F.3d at 701-02. 117
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medical malpractice” by taking state regulatory activities into the federal judicial arena.
122
Finally, the existence of administrative penalties in the regulations that the defendants breached (which the government did not levy, even upon knowledge of the defendant’s noncompliance) convinced the Court “that the [penalties] section is directed at the provider’s continued eligibility… rather than any individual incident of noncompliance.”123 Based on these considerations, the Court affirmed the district court’s dismissal of Mikes’s claims. Mikes made a reasoned case for limiting the scope of the FCA which, since Escobar, has no longer been good law. The Supreme Court did not elaborate on its rejection of Mikes. This may have been an oversight. In Escobar, the misrepresentations were not “tangential” as they were in Mikes. Weighing the outcomes alone, wrongful death is not in the same ballpark as poorly calibrated spirometry tests. The throwing-out of Mikes opened the door to meritoriously weaker implied false certification cases that do not rely on an express condition of payment to get past the pleading stage. Such an advancement, with its implications of high litigation expenses, represents a net loss to the defendant no matter which side ultimately prevails. At a minimum, the Supreme Court perhaps could have written with more nuance in this regard. The other effect of the abrogation of Mikes is that in the Second Circuit and elsewhere, there was and will continue to be an increased reliance on government action. Mikes was noncommittal on materiality: the Court pointedly said that it “need not and do not address whether the [False Claims] Act contains a materiality requirement.” 124 Where the government has any knowledge, its reaction can now be seen almost as a dispositive factor in the inquiry into whether or not the payment decision was material to it. Cessation of payment seems to be the
122
Id. at 700. Id. at 702 (citing Robert Fabrikant and Glenn E. Solomon, Application of the Federal False Claims Act to Regulatory Compliance Issues in the Health Care Industry, 51 Ala. L. Rev. 105, 111-12 (1999)). 124 Id. 123
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only way in which the government can show materiality, short of administrative penalties for which they cannot recover even a fraction of that allegedly defrauded. The net effect of Mikes’s abrogation, all in all, seems to be practically nil. If anything, Mikes and Escobar both articulate defense-favorable materiality standards, one based on an exclusive “express precondition” standard and the other based on the novel requirement that the defendant knew that the misrepresentation was material. In practical terms, Escobar changed one challenge for the plaintiff for another. True, the Second Circuit had to recalibrate following Escobar, but the change was not extreme. Indeed, the adjustments seemed to be at the empirical margins. 3.4 Appellate-Level Decisions After Escobar Escobar did not single-handedly resolve circuit splits, though it claims to have lowered the materiality standard – a claim most circuits retain uncritically. The Fifth Circuit is one in which the materiality bar was heightened in its wake, rather than lowered. One such case is U.S. ex rel. Harman v. Trinity Indus.125 The named relator claimed that the defendant produced and sold technically defective highway guardrails to various states, causing them to submit fraudulent claims for reimbursement to the federal government.126 The Federal Highway Agency was aware of the alleged defects but continued to pay Trinity in full, despite their actual knowledge.127 Based on these rather unconvincing facts, underpinned by the government’s continuation-of-payment decision, the Court was comfortable reversing the district court and finding in favor of Trinity. 128 Besides, wrote the Court, “Congress enacted the FCA to vindicate fraud on the federal government, not second-guess decisions made by those empowered… to
125
United States ex rel. Harman v. Trinity Indus., 872 F.3d 645 (5th Cir. 2016), cert. denied 2019. Id. at 647-652. The Court declined to rule on whether they were actually defective, as the question is irrelevant. 127 Id. at 653, fn. 23. 128 Id. at 670. 126
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shape public policy.” 129 That policy includes negative policy – the policy to not pursue immaterial statutory violations. On the other hand, some circuits lowered their materiality bar following Escobar, pushing against the Supreme Court’s requirement that the materiality test be “vigorous.” In Prather, for example, the Sixth Circuit overturned the district court’s dismissal and ruled in favor of the relator. 130 The case hinged on a regulatory “submission timing” requirement that the defendant allegedly forewent. The relator found that contrary to Medicare requirements, claims were submitted without required certifications from physicians attesting to their need at the time the plan of care was established or as soon thereafter as possible. 131 Whether this is material to the government’s decision, found the Court, is enough of a query to survive a motion to dismiss. The Fifth Circuit similarly found, in U.S. ex rel. Lemon v. Nurses to Go, Inc., that a lowered materiality bar is appropriate to apply at least at the motion-to-dismiss stage.132 Here, the relator alleged that the defendant failed to adhere to standards of care and billed for and provided services to deceased patients, plainly against state regulations. 133 The district court granted a motion to dismiss all counts. The Fifth Circuit reversed, holding that the relators had sufficiently alleged that the regulations were material, relying chiefly on Escobar. While it explicitly recognized that Medicare had not expressly made the regulations as conditions of payment, the defendant “could be liable under the FCA for violating statutory or regulatory requirements, whether or not those requirements are designated as conditions of payment.”134
129
Id. at 668-69. United States ex rel. Prather v. Brookdale Senior Living Cmtys., Inc., 802 F.3d 822, 838 (6th Cir. 2018). 131 Id. at 827, fn. 1. 132 United States ex rel. Lemon v Nurses to Go, Inc., 924 F.3d 155 (5 th Cir. 2019). 133 Specifically, 42 U.S.C.F.R. § 1395(f)(a)(7). 134 Lemon, 924 F.3d at 160 (emphasis added). 130
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This latter remark seems patently unnecessary, particularly because the plaintiffs had alleged that the government had pursued both civil and criminal remedies, completely satisfying the second Escobar materiality requirement (government materiality) without requiring reference to the issue of express condition of payment. 135 But otherwise, the opinion returned to the principled speculation that “the Government would deny payment if it knew about Defendants’ alleged violations.” 136 Here and thereafter, the opinion proceeded in lockstep with Escobar. Importantly, in both Prather and Lemon, the Circuit Courts were overturning dismissal and remanding. Both procedurally and meritoriously, these cases in support of a lowered materiality bar are not as convincing as those affirming a heightened materiality requirement. Even though Escobar did away with the Mikes standard of an express condition of payment, the most important takeaway remains the “rigorous and demanding” nature of a materiality test, in spite of the aforementioned limited cases of a relaxed materiality standard. If the scale had tipped at all, it tipped in favor of a higher materiality bar for future plaintiffs to clear. 4. Worthless Services The worthless services theory is a variant of the implied false certification theory. 137 It requires that the nursing home falsely bills for services that are so deficient that it is as though no service was performed at all. The concept arose out of the 1986 amendment and strengthening of the FCA, in which Congress adopted the “concept that individuals and contractors receiving public funds have some duty to make a limited inquiry so as to be reasonably certain they are entitled to the money they seek.” 138 That instruction has been subsumed into litigation – some
135
Id. at 162. Id. 137 See supra sec. 2.1. 138 S. Rep. No. 99-345, at 20 (1986). 136
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successful – alleging that there is no entitlement when standards have largely collapsed. These worthless services claims are usually accompanied by allegations of graphic misconduct. One of the first cases alleging worthless services is United States v. NHC Healthcare Corp.139 The government alleged that a Missouri nursing home had “such woefully low staff numbers at its facility that it could not possibly have rendered all the care that it billed the Medicare and Medicaid programs,” resulting in patient suffering. 140 On its face, these relatively straightforward facts seem to be a step away from straightforward fraud: had the
government
alleged that NHC did not perform the services it claimed to have rendered, then the plain text of 31 U.S.C. §3729(a) would apply. 141 However, the government alleged that NHC did perform the relevant services but did so in such a substandard manner that the services were legally fraudulent. The district court found that the government had sufficiently pleaded causes of action to survive a motion to dismiss but cautioned that while its cause of action under this theory “should not [be barred] from even being litigated,” the Government faced “a very difficult burden of proof… to show that the Defendant did not provide the minimum level of care unnecessary under its obligation to the United States.” 142 At best, the Court’s endorsement of the government’s theory was lukewarm. Later cases weighing the worthless services theory, also decided at the motion-to-dismiss stage and ending with no verdict, also failed to deliver convincing victories for the plaintiffs. 143 At the appellate level, the theory was severely
139
See supra note 54. Id. at 1151. 141 False Claims Act, 31 U.S.C. § 3729(a)(1)(A). Specifically, in that scenario NHC would have “knowingly [presented]… [a] fraudulent claim for payment.” 142 Id. at 1154. 143 See United States v. Villaspring Health Care Ctr., Inc., 2011 U.S. Dist. LEXIS 145534 (E.D. Ky., C.D. Dec. 19, 2011) (defining worthless services as “factually false” claims and relying on HNC Healthcare Corp. to deny Villaspring’s 12(b)(5) motion to dismiss). 140
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weakened by United States ex rel. Absher v. Momence Meadows Nursing Ctr., Inc. 144 Assessing a similar set of circumstances as NHC Healthcare, the Court found that “truly worthless services may be evidence that a claim for reimbursement is false or fraudulent (under a false certification theory of liability),” but “worthless services” itself is not actionable under the FCA. 145 While substandard services are deplorable, “services that are worth less are not worthless.” 146 The worthless services theory is far more consequential if settlements are included in the picture. In 2005, the DOJ settled for $2.5 million with Georgia nursing home Life Care of Lawrenceville for deficient care, relying on graphic allegations of deficient services filed by a qui tam relator.147 And the 2019 Vanguard settlement comprised one of the most convincing victories for worthless services in over 30 years of litigation. 148 These large settlements may entice COVID-era relators to attempt to advance arguments based on grossly deficient COVID care rather than on the implied false certification theory. However, as this Article will suggest below, the case law suggests that worthless services COVID suits are unlikely to succeed. 5. Three Routes for Nursing Home FCA Litigation in the COVID Era This section – and the remainder of this Article – will discuss three possible ways in which nursing homes may be pursued under the FCA for COVID-19 related reasons. This section argues that the three routes, though legally different, converge in their high unlikelihood of success. Neither the legislative history nor the case law supports the FCA’s use in this way. 5.1 Implied False Certification: “Explicit” Cases
144
United States ex rel. Absher v. Momence Meadows Nursing Ctr., Inc., 764 F.3d 699 (7 th Cir. 2014). 145 Id. at 710. 146 Id. at 709-10 (internal quotation marks omitted). 147 Erin Moriarty, “Nursing home to pay $2.5 million fine,” Atlanta Business Chronicle (Dec. 23, 2005), https://www.bizjournals.com/atlanta/stories/2005/12/19/daily24.html. 148 See supra sec. 2.2. Page 39
FCA relators and the government may seize on a variety of “explicit” or affirmative representations that declare compliance with a broad swath of federal and state statutes and regulations, both those made before the pandemic and in the course of obtaining CARES Act payments. For example, on the Medicare Cost Report Form for Skilled Nursing Facilities is a “certification” that states: “I hereby certify… that to the best of my knowledge and belief, this report and statement are true, correct, complete, and prepared from the books and records of the provider in accordance with applicable instructions… [and] that I am familiar with the laws and regulations regarding the provision of health care services, and that the services identified in this cost report were provided in compliance with such laws and regulations.” 149 Read plainly, this certification seems to allow relators to pursue nursing homes that may have violated any number of “laws and regulations,” possibly including CMS directives regarding standards of care during the pandemic alongside scores of rapidly changing local ordinances. However, there is good reason to believe that courts would apply a “rigorous” materiality standard with regard to “explicit” implied false certification, especially broad ones like those. Specifically, such a heightened standard has been applied where defendants prevailed because the relator could not show the nexus between government reaction upon finding out about noncompliance with these broad certifications and the payment decision. In United States ex rel. Gross v. AIDS Research Alliance-Chi., the defendant prevailed on such grounds. 150 The relator, who was a participant in a study conducted by the defendants, alleged negligence and mismanagement, specifically that the defendant submitted forms and reports that certified that the study followed a larger number of regulations when it violated some of them. 151 The Sixth
149
Skilled Nursing Facility and Skilled Nursing Facility Health Care Complex Cost Report (Form CMS-2540-10), CMS at 41-303, https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R7PR241.pdf. 150 See supra note 105. 151 Id. at 602. Page 40
Circuit issued a unanimous decision for the defendants. The Court found that the government failed to plead with particularity the circumstances constituting fraud. Judge Skye’s blistering opinion criticized the government for failing to show “how any of the forms relate to the payment of study funds,” evidently applying materiality. 152 The government’s “conclusory allegations shed no light on the nature or content of the individual forms or why any particular false statement would have caused the government to keep the funding spigot open… [and do] not satisfy the… requirement for leading fraud under rule 9(b).” 153 Gross suggests that the False Claims Act is not the catch-all remedy for any violation. If these broad certifications were taken literally, then the nursing home industry, before COVID-19 and after, would be forced into oblivion, since no nursing home could possibly comply with all existing regulations. Neither Congress nor the Courts have found such a far-fetched outcome to be necessary, and that outcome will likely not materialize in the aftermath of COVID-19. 5.2 Implied False Certification: “Implicit” Cases Relators may also claim that nursing homes which have violated pandemic-related statutes and regulations have falsely certified compliance by submitting a request for payment. This is the version of the theory considered by the Escobar court. It is fruitful to examine some additional cases, in addition to the ones already mentioned in section 3.4, to determine whether this type of argument might be viable in the COVID-19 era. The answer is most likely no. Since the Escobar court found that the alleged implied falsity must be material to the government’s payment decision, scrutiny of the decision to pay will come at the beginning of litigation, not after discovery, since materiality can be examined at the motion-to-dismiss stage.
152 153
Id. at 604-5. Id. at 605.
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Such a decision will heavily depend on the government’s total mix of information. As one postEscobar district court succinctly stated, “[government] knowledge of noncompliance… bears on whether such violations were actually material to the government’s decision to pay a claim.” 154 Government inaction in the face of actual knowledge is a strong, though not dispositive, indicator of immateriality. As applied to the wave of COVID-related actions that commentators have predicted, materiality will be harder to sustain when government action is considered because COVID outbreaks tend to be reported frequently and fact-intensively, causing the government to be aware of operator infractions even if its investigative branches did not find out about them before the media did. And alternative government actions, such as issuing agency fines, may actually be construed as evidence of the impracticability of litigation. 155 As a preliminary matter, the link between the operator infraction and the payment decision must be particularized and concrete, not merely conceptual or conjectural. In Knudsen v. Sprint Communs. Co., the Court dismissed a relator’s FCA claims by rejecting his theory that “any statutory, regulatory, or contractual violation is material just because it can result in the government’s decision not to pay a claim.” 156 While “Knudsen ‘believes’ that Defendants were required to and did submit a Certificate of Current Cost or Pricing Data with each monthly billing” and alleged that Sprint did not submit that certificate, “Knudsen does not adequately allege that these certifications were in fact required… and nothing about the form raises Knudsen’s belief beyond mere speculation.” 157 The opinion also suggested that the government’s
154
Knudsen v. Spring Communs. Co., 2016 U.S. Dist. LEXIS 118438 (N.D. Cal. Sept. 1, 2016) at See infra note 10 and supra sec. 5.3. 156 Knudsen, 2016 U.S. Dist. LEXIS 118438 at 46. 157 Id. at 45. 155
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46.
continuation of payment to Sprint despite its actual knowledge of Sprint’s non-submission suggests that submission is not material to the payment decision. 158 The case law does not suggest that whenever the government continued to pay, it considered the statutory or regulatory violation to be immaterial. It would be an absurd result if the government were incentivized to stop payment whenever a qui tam suit is filed; such a result would produce a lose-lose-lose situation in which 1) the government must adopt a “kill switch” payment structure, requiring additional administrative resources; 2) contractors must be prepared for the sudden curtailment of funds at any time, upon any allegation of statutory or regulatory violation; and 3) the public must be prepared to experience sudden service interruptions due to a gap in funds. However, courts have prioritized government reaction in their materiality tests, mostly in deciding against it. In United States ex rel. Kelly v. Serco, Inc., the Court found that erroneous billing formats and reporting errors are not material to the government’s decision to pay.159 Relying on Escobar’s key line to affirm the district court’s dismissal, the Court found that “[if] the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that [they] are not material.” 160 Relator-friendly cases in this area are few and far in between, and also severely circumscribed. In the Sixth Circuit case United States ex rel. A+ Homecare v. Medshares Management Group, the Court applied a related “natural tendency” test that is analogous to a materiality test. 161 Although the case went the way of the relator, it imposed a clear and daunting
158
The government’s declination of the case also weighed implicitly into the Court’s determination. As a practical matter, statistically and intuitively, FCA cases are far likelier to succeed where the government intervenes. The government’s intervention strongly supports a finding of materiality and increases the likelihood of litigation success, since it is able to pour in a virtually unlimited amount of investigative and legal resources that private relators, whose FCA attorneys typically work on contingency bases, can hardly match. 159 United States ex rel. Kelly v. Serco, 846 F.3d 325 (9th Cir. 2017). 160 Escobar, at 2003. 161 See supra note 86. Page 43
materiality standard for subsequent FCA cases in that circuit. The procedural history and facts are complicated, but the FCA issue boils down to whether a false pension accrual on a cost report submitted to Medicare “had a natural tendency to influence or was capable of influencing the government’s funding decision.” 162 In this case, the Court found that the misrepresentation caused the defendant’s obligation to Medicare to be decreased in the eye of the government, so it has the requisite “natural tendency.” 163 This turn of phrase relies on the very definition of materiality. The Court cautioned prefatorily in the opinion that “[liability] does not arise merely because a false statement is included in a claim, but rather the claim itself must be false or fraudulent. A false statement… can only serve to make the entire claim itself fraudulent if that statement is material to the request or demand for [payment].” 164 It is difficult to see how violation of certain pandemic-era regulations would have a “natural tendency” to influence the government’s payment decision, much less constitute a “knowing” attempt to defraud it, and especially when regulations are fluid, changing with our evolving knowledge about the virus. Finally, federal agencies themselves seem to have taken the position that the materiality of implied false certification has its limits. For example, Sec. 1.3.6 of CMS’ Medicare Program Integrity Manual states: “Potential quality of care issues are… the responsibility of the QIO (Quality Improvement Organizations), state licensing/survey and certification agency, or other appropriate entity in the service area… Contractors shall analyze provider compliance with Medicare coverage and coding rules and take appropriate corrective action when providers are found to be non-compliant. For repeated infractions, or infractions showing potential fraud or
162
Id. at 446 (quoting United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 917) (internal quotation marks omitted). 163 Id. 164 Id. at 443 (emphasis added). Page 44
pattern of abuse, more severe administrative action shall be initiated.” 165 In other words, the document cautions financial intermediaries not to make unilateral judgments on the appropriateness of payment decisions and that the agency has its own built-in measures to deal with potential fraud. The experience of New York State’s recent flurry of enforcement actions against nursing homes suggests that state measures are robust. 166 Relators attempting to forward an implied false certification theory may even encounter resistance from the government, whose position in the manual seems to be that it wants to avoid adversarial proceedings when possible. 5.3 Worthless Services Finally, plaintiffs may allege that nursing homes provided pandemic mitigation measures that are so worthless that they are as good as no service at all. As is the case with all FCA litigation, the outcome for the relator is characterized by “high risk, high reward.” Relators, as plaintiffs under their individual capacities, may encounter less resistance when suing under the Nursing Home Reform Act or state or federal elder neglect laws, but recoveries tend to be smaller. They may be drawn to the FCA by its promise of treble damages and substantial relator awards. However, the worthless services route may be as impenetrable as both the “explicit” and the materiality-based route of the implied false certification theory. Absher, the Sixth Circuit case in this area that has dictated outcomes in other circuits, continues to be severely restrictive. Most worthless services cases to do with nursing homes cite a federal statute that requires homes to provide such a quality of care that “promotes the maintenance and enhancement of the quality of life,” or their analogous state law counterparts. 167 Claims based on this broad statute,
165
“Chapter 1 – Medicare Improper Payments: Measuring, Correcting, and Preventing Overpayments and Underpayments,” in Medicare Program Integrity Manual (Rev. 10228), CMS (Jul. 27, 2020) at § 1.3.6, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/pim83c01.pdf. 166 See supra sec. 2.3. 167 Requirements for Long Term Care Facilities, 42 U.S.C.F.R. § 1396r(b). Page 45
however, tend to run up against the same issues as “explicit” implied false certification cases, namely particularity, as well as the general difficulty that the government has other enforcement channels besides the courts with which to punish the furnishing of substandard services. United States ex rel. Aranda v. Community Psychiatric Ctrs. offers a cautionary tale.168 A relator and the government alleged that CPC Southeast Hospital knowingly failed to provide a “reasonably safe environment” because CPC submitted bills for psychiatric care but “knew that it was not providing to its patients appropriate quality care and a safe and secure environment.” 169 While the Court denied the defendant’s motion to dismiss, it in fact gave the government a pyrrhic victory by suggesting that the government had other enforcement mechanisms with which to pursue the defendants. 170 It also suggested that “[providers] of sub-standard healthcare services” are analogous to “contractors who furnished inferior goods” who are nevertheless compensated – a comment carrying overtones from Absher that “worth less” is not “worthless.” 171 Even more drastically, one district court reduced the worthless services theory down to “classic” fraud and then dispensed with it completely. The NHC Health Care Corp. case discussed earlier ended with the Court’s observation that the parties do not quarrel over the quality of the care but over whether the deficient services at issue “were actually performed.” 172 If the home did not provide these services, the Court reasoned, it had committed classic fraud: “At some very blurry point, a provider of care can cease to maintain this [quality] standard by failing to perform the minimum necessary care activities required to promote the patient’s quality of life. When the provider reaches that point, and still presents claims for reimbursement,
168
United States ex rel. Aranda v. Community Psychiatric Ctrs., 945 F. Supp. 1485 (W.D. Okla. Oct. 1, 1996). Id. (citing Second Amended Complaint at ¶¶ 35, 101-02). 170 Id. at 1485-88. 171 Id. at 1488. 172 United States v. NHC Health Care Corp., 115 F. Supp. 2d 1149, 1155 , fn. 4 (W.D. Mo., S.D. Aug. 30, 2000). 169
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the provider has simply committed fraud…”173 If such a standard is broadly applied, it is difficult to see how relators could allege that nursing homes provided worthless services. All in all, the worthless services route may be the most treacherous of the three considered in this section. Its relatively sparse case law is yet another reason for judges to apply it extremely carefully, and for relators to fully consider applying the FCA in this manner. 6. Policy Considerations and Conclusion In addition to the legal reasons against the use of the FCA to pursue nursing homes during the COVID-19 emergency, there are at least three policy considerations against its use: 1. Social cost: Out of abundance of legal caution, nursing homes might employ such a restrictive set of cautionary measures that human dignity and compassion are sacrificed. For example, end-of-life compassionate care, visits that alleviate severe emotional distress, and even routine visitation may be curtailed if nursing homes sense an extraordinary level of FCA liability, especially arising under a highly punitive statute like the FCA. Extreme precautions will bring about an enormous human cost as for example, dying parents are kept out of arms’ reach of distressed children, out of fear of liability. 2. Industry cost: Overuse of the FCA in healthcare litigation may disincentive market entry at a time when more healthcare services, especially elder care, are sorely needed. 3. Legal cost to the profession and to victims of malpractice: The FCA was not designed for individuals to recover for wrongful death but for knowledgeable insiders to expose actions that defraud the government. The FCA has become a popular alternative to medical malpractice and negligence theories, including class actions. Overuse of the FCA may in fact obscure the viability of other legal channels and prevent victims from getting
173
Id. at 1056 (emphasis added).
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the compensation that they deserve. The Escobar case is emblematic: after ten years, Yarushka’s family had not received a penny from the judicial process. Funds remaining after the 15%-25% relator share are dispensed flow to the Medicare Trust Fund or Health Care Fraud and Abuse Control Fund, converted into resources that “combat health fraud”; those harmed by the fraud who are not relators are rarely compensated. 174 The Ninth Circuit has said that “[violations] of laws, rules or regulations alone do not create a cause of action under the [FCA].” 175 This observation remains as true at the time it was made as it does today. While the Supreme Court’s recognition and possible expansion of materiality in Escobar had prompted commentators to predict a plaintiff-friendly boom in the quantity of nursing home FCA litigation, a closer look at the law suggests otherwise. As early as 1998, commentators realized that the FCA had become a “modern nightmare for the health care industry… due to the many forms health care professionals must sign in order to receive compensation from federal health care programs.” 176 There the authors were speaking about the type of “explicit” certification discussed above in Section 5.1, but their central insight holds true for the implied false certification and worthless services theories. After Escobar, lower courts heeded the advice of the discredited Mikes court and refrained from using the FCA as a “blunt instrument.” 177 This trend is overwhelmingly likely to continue after this pandemic. Unscrupulous nursing homes, to be sure, should be vigorously pursued for their abuse of federal funds and their disregard of human dignity. But the FCA is not the right arena for the enactment
174
Brennan and Paddock, Limitations on the False Claims Act at 70. United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir. 1996). 176 Patricia Meador and Elizabeth S. Warren, The False Claims Act: A Civil War Relic Evolves into a Modern Weapon, 65 Tenn. L. Rev. (Winter, 1998) 455, 456. 177 Mikes, 274 F.3d at 700. 175
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of such pursuits. In the difficult aftermath of COVID, nursing homes should not be subject to enforcement action under the FCA. Discretion – and common sense – must prevail.
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Lovitch. “COVID-19 Relief Programs: The Anticipated Wave of False Claims Act Cases and Oversight Agency Enforcement Activities.” Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Jul. 2, 2020, https://www.mintz.com/insights-center/viewpoints/2146/2020-07-02covid-19-relief-programs-anticipated-wave-false-claims. “Executive Order No. 7U: Protection of Public Health and Safety During COVID-19 Pandemic and Response – Protections from Civil Liability for Healthcare Providers and Billing Protections for Patients.” State of Connecticut, April 5, 2020, https://portal.ct.gov//media/Office-of-the-Governor/ExecutiveOrders/Lamont-Executive-Orders/ExecutiveOrder-No-7U.pdf. “Extendicare Health Services Inc. Agrees to Pay $38 Million to Settle False Claims Act Allegations Relating to the Provision of Substandard Nursing Care and Medically Unnecessary Rehabilitation Therapy.” Department of Justice, Oct. 10, 2014, https://www.justice.gov/opa/pr/extendicare-health-services-inc-agrees-pay-38millionsettle-false-claims-act-allegations. False Claims Act, 31 U.S.C. §3729-3732. Godfrey, Elaine. “We’re Literally Killing Elders Now.” The Atlantic, Apr. 29, 2020, https://www.theatlantic.com/politics/archive/2020/04/coronavirus-especially-deadlynursing-homes/610855/. “Governor Murphy Announces Recommendations from Review of New Jersey’s Long-Term Care Facilities.” State of New Jersey, Jun. 3, 2020, https://nj.gov/governor/news/news/562020/approved/20200603a.shtml.
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Grassley, The Honorable Charles E. “Information on False Claims Act Litigation.” Letter to the Honorable F. James Sensenbrenner, Jr. and to the Honorable Chris Cannon, Jan. 31, 2006. Hamel, W. Warren, Thora A. Johnson, Celia E. Van Lenten, Gerald S. Sachs, Evan T. Shea, Courtney A. Sullivan, Nicholas A. Mongelluzzo, and Joanna P. Breslow Boyd. “Department of Justice Launches National Nursing Home Initiative.” Venable LLP, Apr. 21, 2020, https://www.venable.com/insights/publications/2020/04/department-of-justicelaunches-national-nursing. Harrington, William, Anne Railton, and Tucker DeVoe. “Next for America’s Nursing Homes: A Legal Pandemic ” New York Law Journal, Jun. 29, 2020, https://www.law.com/newyorklawjournal/2020/06/29/next-foramericas-nursing-homes-alegal-pandemic/. Healy, Jack, Danielle Ivory, and Serge F. Kovaleski. “‘A Slow Killer’: Nursing Home Residents Wither in Isolation Forced by the Virus.” New York Times, Oct. 30, 2020 (updated Oct. 31, 2020), https://www.nytimes.com/2020/10/30/us/nursing-homes-isolation-virus.html. “HHS Announces Allocations of CARES Act Provider Relief Fund for Nursing Homes.” HHS, Aug. 7, 2020, https://www.hhs.gov/about/news/2020/08/07/hhs-announces-allocationsof-cares-act-provider-relief-fund-fornursing-homes.html. Hopper v. Solvay Pharms., Inc., 588 F. 3d 1318 (11th Cir. 2009). House Report 111-97 (to accompany H.R. 1788) (False Claims Act Correction Act of 2009), May 5, 2009. “Justice Department Recovers Over $2.8 Billion from False Claims Act Cases in Fiscal Year
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2018.” Department of Justice, Dec. 21, 2018,https://www.justice.gov/opa/pr/justicedepartment-recovers-over-28-billion-false-claims-act-cases-fiscalyear-2018. Knudsen v. Spring Communs. Co., 2016 U.S. Dist. LEXIS 118438 (N.D. Cal. Sept. 1, 2016). “Material.” Black’s Law Dictionary, https://thelawdictionary.org/material/. Meador, Patricia, and Elizabeth S. Warren. “The False Claims Act: A Civil War Relic Evolves into a Modern Weapon” in Tennessee Law Review Vol. 65 (Winter, 1998), 455-483. Medicare Program Integrity Manual (Rev. 10228). CMS. Jul. 27, 2020, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/pim83c0 1.pdf. Moriarty, Erin. “Nursing home to pay $2.5 million fine.” Atlanta Business Chronicle, Dec. 23, 2005, https://www.bizjournals.com/atlanta/stories/2005/12/19/daily24.html. New York Public Health Law, Article 30-D. Office of Enterprise Data and Analytics. “Total Medicare Enrollment: Total, Original Medicare, and Medicare Advantages and Other Health Plan Enrollment, Calendar Years 20132018.” CMS, https://www.cms.gov/files/document/2018-mdcr-enroll-ab-1.pdf. Office of the Inspector General. “Medicaid Nursing Home Life Safety and Emergency Preparedness Reviews. ” HHS, accessed Nov. 27, 2020, https://oig.hhs.gov/reports-andpublications/workplan/summary/wp-summary0000453.asp. Office of the Inspector General. “State False Claims Act Reviews.” HHS, accessed Nov. 27, 2020, https://oig.hhs.gov/fraud/state-false-claims-act-reviews/. “Pandemic Response Accountability Committee, The: Organization and Duties.” Congressional Research Service, Apr. 28, 2020, https://crsreports.congress.gov/product/pdf/IN/IN11343.
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Paulin, Emily. “Is Extended Isolation Killing Older Adults in Long-Term Care?” AARP, Sept. 3, 2020, https://www.aarp.org/caregiving/health/info-2020/covid-isolation-killing-nursinghome-residents.html “Quality Safety & Oversight – Guidance to Laws & Regulations.” CMS, accessed Nov. 27, 2020, https://www.cms.gov/Medicare/Provider-EnrollmentandCertification/GuidanceforLawsAndRegulations. Recommendations to Strengthen the Resilience of New Jersey’s Nursing Homes in the Wake of COVID-19. Manatt, Phelps & Phillips, LLP, Jun. 2, 2020, 6-2-2020-NJ LTCResilience.pdf. Roybal, Scott F. and Matthew T. Lin. “Guard Against False Claims as Massive Government Spending Rolls Out to Combat COVID-19.” National Law Review, Mar. 19, 2020), https://www.natlawreview.com/article/guardagainst-false-claims-massivegovernment-spending-rolls-out-to-combat-covid-19. Runyeon, Frank G. “NY Nursing Home Virus Immunity Shrinks as First Suits Filed.” Law360, Aug. 4, 2020, https://www.law360.com/articles/1298194/ny-nursing-home-virusimmunity-shrinks-as-first-suits-filed. Santoni, Matthew. “Pa. Gives Civil Immunity to COVID-19 Health Care Providers.” Law360, May 6, 2020, https://www.law360.com/articles/1271198/pa-givescivil-immunity-tocovid-19-health-care-providers. Senate Report No. 99-345 (False Claims Reform Act of 1985). Jun. 28, 1986. Skilled Nursing Facility and Skilled Nursing Facility Health Care Complex Cost Report (Form CMS-2540-10). CMS, https://www.cms.gov/RegulationsandGuidance/Guidance/Transmittals/Downloads/R7PR241.pdf.
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An Act Providing Immunity from Liability for Certain Claims Alleging Injury or Death during Public Health Emergency and State of Emergency and Facilitating Issuance of Temporary Licenses and Certifications, S.B. 2333, 2020 Reg. Sess. (N.J. 2020), https://www.njleg.state.nj.us/2020/Bills/S2500/2333_R1.HTM. Snell, Kelsey. “What’s Inside The Senate’s $2 Trillion Coronavirus Aid Package.” NPR, Mar. 26, 2020, https://www.npr.org/2020/03/26/821457551/whats-inside-the-senate-s-2trillion-coronavirus-aid-package. Sniadach v. Walsh, No. 20-cv-30115 (D. Mass.), Complaint and Jury Trial Demand. Subpart B – Requirements for Long Term Care Facilities, 42 U.S.C.F.R. § 483. “Trump Administration Announces New Nursing Homes COVID-19 Transparency Effort.” CMS, Apr. 19, 2020, https://www.cms.gov/newsroom/press-releases/trumpadministration-announces-new-nursing-homes-covid-19-transparency-effort/. United States ex rel. A+ Homecare v. Medshares Mgmt., 400 F.3d 428 (6 th Cir. 2005). United States ex rel. Absher v. Momence Meadows Nursing Ctr., Inc., 764 F.3d 699 (7th Cir. 2014). United States ex rel. Aranda v. Community Psychiatric Ctrs., 945 F. Supp. 1485 (W.D. Okla. Oct.1, 1996). United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890 (9 th Cir. 2017). United States ex rel. Gross v. AIDS Research Alliance-Chi., 415 F.3d 601 (7th Cir. 2005) United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416 (9 th Cir. 1991). United States ex rel. Harman v. Trinity Indus., 872 F.3d 645 (5 th Cir. 2016). United States ex rel. Hopper v. Anton, 91 F.3d 1261 (9 th Cir. 1996). United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325 (9 th Cir. 2017).
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United States ex rel. Kraus v. Wells Fargo & Co., 943 F.3d 588 (2nd Cir. 2019). United States ex rel. Lemon v. Nurses to Go, Inc., 924 F.3d 155 (5 th Cir. 2019). United States ex rel. Mikes v. Straus, 274 F.3d 687 (2nd Cir. 2001), abrogated by Universal Health Sers., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 195 L. Ed. 2d 348 (2016). United States ex rel. Petratos v. Genentech Inc., 855 F.3d 481 (3rd Cir. 2017). United States ex rel. Prather v. Brookdale Senior Living Cmtys., Inc., 802 F.3d 822 (6 th Cir. 2018). United States ex rel. SNAPP, Inc. v. Ford Motor Co., 618 F.3d 505 (6 th Cir. 2016). United States ex rel. Vigil v. Nelnet, Inc., 639 F.3d 791 (8 th Cir. 2011). United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370 (4th Cir. 2008). United States v. Bornstein, 423 U.S. 303 (1976). United States v. Chester Care Center, No. 98-CV-139 (E.D. Pa. Feb. 2, 1998). United States v. GMS Mgmt..-Tucker, Inc., No. 96-1271 (E.D. Pa. Mar. 6, 1996). United States v. Krizek, 111 F.3d 934 (D.C. Cir. 1997). United States v. McNinch, 356 U.S. 595 (1958). United States v. NHC Healthcare Corp., 115 F Supp. 2d 1149 (W.D. Mo., S.D. Aug. 30, 2000). United States v. Villaspring Health Care Ctr., Inc., 2011 U.S. Dist. LEXIS 145534 (E.D. Ky., C.D. Dec. 19, 2011). Universal Health Services, Inc. v. United States ex rel. Escobar, 195 L. Ed. 2d 348, 136 S. Ct. 1989 (2016).
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“U.S. Attorney Appoints Coronavirus Fraud Coordinator for Region.” United States Attorney’s Office for the Middle District of Georgia, Mar. 27, 2020, https://www.justice.gov/usaomdga/pr/us-attorney-appoints-coronavirus-fraud-coordinator-region. “Vanguard Health Agrees to Resolve Federal and State False Claims Act Liability.
”
Department of Justice, February 27, 2019, https://www.justice.gov/opa/pr/vanguardhealthcare-agrees-resolve-federal-and-state-falseclaims-act-liability. Villani, Chris. “Mass. Soldiers’ Home Sued Over Deadly COVID-19 Outbreak.” Law360, July 17, 2020,
https://www.law360.com/articles/1293124?scroll=1&related=1.
Villeneuve, Marina. “Inspections Found Nursing Homes Lapses as COVID-19 Raged in NY.” NBC New York, Sep. 25, 2020, https://www.nbcnewyork.com/news/local/inspectionsfound-nursing-home-lapses-as-covid-19-raged/2635050/. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000).
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Should Environmental Protection be Constitutionalized in the United States?
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Should Environmental Protection be Constitutionalized in the United States?
Alexia Godron Yale University Spring 2021
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Abstract In an era where the world is plagued with environmental problems ranging from climate change to heavy metal pollution, new pathways towards environmental protection need to be implemented. Around the globe, countries have been constitutionalizing environmental rights in order to better use the law as a tool in these efforts. However, in the United States, environmental law remains in its traditional positioning, issued as part of government legislation, regulations from government agencies, state laws, and as precedents and rules within common law. This essay will argue that it is crucial and timely for the United States to include an environmental provision in its Constitution in order to increase the effectiveness and leverage of environmental law. Furthermore, the provision should be framed as a human right, both to increase its political viability and its potential in future legal disputes. The essay will begin by exploring the various currently existing environmental law practices in the United States before concluding that environmental constitutionalism is a necessary pathway. Then, it will explore the potential ramifications and considerations to evaluate when proceeding in such a pathway. Throughout the text, case studies will be drawn from US environmental legal history, and from examples throughout the world where environmental constitutionalism has led towards success in both ecological and human protection.
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1.
Introduction
Environmental issues, including climate change, are some of the defining challenges of this generation. They are challenges that expand past their direct environmental consequences and spread their tendrils into the realm of human rights, poverty and development, gender issues, and more. In the United States, populations have faced increased drought and wildfires in California, loss of agricultural produce due to changing weather patterns, acidification and loss of marine wildlife, coastal erosion, rising sea levels, salinization of coastal wetlands leading to land loss, and more. Though these climate change effects are present and tangible, it is more difficult to directly observe the causal link between their existence and human action, therefore presenting certain litigation challenges. However, environmental pollution, particularly pointsource in nature, is easily linked to human-caused damages such as lead pollution, water contamination from hydraulic fracking, smog, etc. Regardless of the differences in the nature of these problems, the United States has failed to spearhead momentous, meaningful, and effective legislation for solving both categories of issues. Heretofore, US environmental action has been confined to government (state and federal) policy, as well as the use of certain statutory and regulatory laws, common laws, and precedents. A majority of other countries may have seen a similarly wearisome progress towards environmental protection, but they have also approached new pathways which the United States has yet to seriously consider, such as the constitutionalization of environmental protection. From giving constitutional rights to natural bodies such as rivers to listing the right to a healthy environment in their Constitution, international efforts have encountered varying degrees of success but have all opened new possibilities for environmental protection through litigation. This paper will argue that the United States should adopt an amendment to the Constitution
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formalizing both the substantive right to certain environmental standards as a human right, and the procedural rights that would allow citizens to engage in this process and for courts to vindicate their rights. Constitutionalizing environmental protection as a human right will not only be the most effective means of eliminating or mitigating environmental issues through litigation, but it is also an approach that has increased political viability and which mirrors the scale of the problem. 2.
Law as a Tool for Societal Change
In considering an amendment to the US Constitution, one must ponder whether such an arduous endeavor is worth the effect that it will have on US society’s environmental protection and modus operandi. Namely, does a change in constitutional law entrench societal change, or must societal change come first? History has shown that a certain extent of societal change must serve as a precursor for legal change, but that subsequently law can lead to a furtherance of transformations. Early in his career, environmental activist and Dean of the Yale School of Forestry Gus Speth claimed to have modeled the environmental movement on certain aspects of the Civil Rights movement. Later, he reflected that parts of this initiative had been less successful than he expected, but that his efforts to enact several environmental laws such as the Clean Air Act and the Clean Water Act were powerful accomplishments.1 Nonetheless, even within the realm of the civil rights movement, law was certainly not the leading force in the advancement of the rights of African Americans: more than a modicum of change was needed for the Fourteenth Amendment to overturn the 1857 Dred Scott v. Sanford ruling, not least of which a Civil War. However, the Fourteenth Amendment and, later, Brown v. Board of
1
Curwood, Steve, and James Gustave Speth. “Gus Speth Calls for a ‘New’ Environmentalism.” Living on Earth, 15, Feb. 2015, www.loe.org/shows/segments.html?programID=15-P13-00007&segmentID=6. Accessed 31 May, 2020. Page 63
Education and the 1954 Supreme Court reversal of the Plessy Doctrine have since then served as the basis for several legal and societal advances in the Civil Rights movement. In Reverend Martin Luther King’s speech at Cornell University, he discussed whether education or legislation would solve racial discrimination in the United States, saying that, “it is not either education or legislation; it is both education and legislation. It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important also. It may be true that the law cannot change the heart, but it can restrain the heartless, and this is what we often do and we have to do in society through legislation.”2 Law can and does push society forward, particularly in the area of human rights. As such, constitutionalizing environmental protection will undoubtedly be a useful tool for catalyzing action on this issue. This conclusion then begs the question of whether society has changed enough to push such laws into existence. During the last decade, the United States has experienced a transformation in environmental consciousness. This change is evident in consumer or stakeholder behavior, and the shift towards companies that present green products or environmental benefits, such as Patagonia, or even in the emergence of Environmental, Sustainability, and Governance (ESG) metrics as a growing component of financial institutions, including the SEC. Part of this change is also evident in the leadership of tech giants taking on environmental commitments, such as Google’s use of renewable energy, and Amazon’s commitment to carbon neutrality by 2040.3. More than anything else, this change is evident in
2
King, Martin Luther. “An Address by the Reverend Dr. Martin Luther King, Jr.” An Address by the Reverend Dr. Martin Luther King, Jr., 15 Oct. 1962, Mount Vernon, Iowa, Cornell College. 3 Shepardson, David. “Amazon Vows to Be Carbon Neutral by 2040, Buying 100,000 Electric Vans.” Reuters, Thomson Reuters, 20 Sept. 2019, www.reuters.com/article/us-amazon-environment/amazon-vows-to-be-carbonneutral-by-2040-buying-100000-electric-vans-idUSKBN1W41ZV. Page 64
the insurgence of youth activism throughout the world, leadership from teenager Greta Thunberg, the Climate March protests in Washington DC, and much more. Today, 60% of the United States adults are worried about climate change, 72% think that CO2 should be regulated, and more than half think that the President, Congress, and their governors should do more to address climate change.4 Among young people, climate change concerns are even higher, including within conservative voting groups.5 These statistics indicate a societal shift towards prioritizing environmental protection, whereas the law trails behind. 3.
Environmental Law in the United States: Failures, Successes, and the Path Forward
In the United States, current environmental law is based on either common law (and precedents), state laws and constitutions, or a combination of regulations and statutes issued by Congress and federal agencies such as the EPA. Despite the vast network of pre-existing laws and the mechanisms for creating new statutes, it is necessary to incorporate an amendment in the Constitution because the status quo doesn’t guarantee equal motivation for change (and legal standing) throughout the country, and also is not particularly conducive to the success of environmental cases. Constitutionalizing environmental protection does not preclude the development of other types of laws but rather emphasizes their legitimacy and their utility, as well as complementing some of their weaknesses as assessed below. This section will examine
4
Marlon, Jennifer, et al. “Yale Climate Opinion Maps 2019.” Yale Program on Climate Change Communication, Yale School of Forestry and Environmental Studies, 17 Sept. 2019, climatecommunication.yale.edu/visualizationsdata/ycom-us/. 5 Ballew, Matthew, et al. “Do Younger Generations Care More about Global Warming?” Yale Program on Climate Change Communication, Yale School of Forestry and Environmental Studies , 11 June 2019, climatecommunication.yale.edu/publications/do-younger-generations-care-more-about-global-warming/. Page 65
why the current environmental laws and principles are falling short, strengthening the position of constitutionalization as a viable option. 3.1 EPA Regulations Founded in 1970, the US Environmental Protection Agency (EPA) has historically been a stalwart of environmental protection. However, the actions of the EPA are limited by politics and partisanship, making it a weak agent in the face of the significant environmental issues the United States faces today. The EPA is not only limited in its actions by Congressional statutes (which it interprets in the regulations it issues) and in its funding (also allocated by Congress), but is also led by a politically appointed figure that can influence the potency of the regulations and align the EPA’s mission with party lines. The case of Chevron USA Inc. v. Natural Resources Defense Council addressed an EPA regulation which “allow[ed] states to treat all pollution-emitting devices in the same industrial grouping as though they were a single ‘bubble’. Using this bubble provision, plants may install or modify one piece of equipment without needing a permit if the alteration does not increase the total emissions of the plant.”6 The Supreme Court ruled in favor of the EPA’s interpretation, thus allowing the judiciary to defer the interpretation of a statute issued by Congress to the federal agency that it pertains to, in this case, the EPA. This case and many others are evidence that deferring important environmental regulations to the EPA is not enough to protect the environment, and also leaves the EPA at the hands of political partisanship, which is often split in its attitude towards environmental protection.
6
"Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc." Oyez, www.oyez.org/cases/1983/82-1005. Accessed 9 May. 2020. Page 66
‘Polluter Pays’ principle One of the archetypal environmental law principles is that the polluter should pay for the harm he or she has caused. This principle, which closely relates to the concept behind nuisance and pollution laws, is legally sound in practice but often grossly undermined in the court of law. A glaring example is in the Exxon Valdez case of 1989. An intoxicated captain crashed an oil tanker into a reef in Alaska, causing 11 million gallons of oil to spill into the ocean and precipitating disastrous consequences on marine ecosystems and wildlife.7 Originally, punitive damages of $5 billion were leveraged against Exxon (in addition to compensatory damages), but the amount was later cut down by the United States Supreme Court to a mere $500 million. The rationale for this decision was that the amount was reduced to achieve a one-to-one ratio with the compensatory damages8, resulting in a fine that dramatically failed to penalize such a large company or to hail as a preventative case for future instances of pollution and negligence. Unfortunately, cases where such polluters are not adequately reprimanded and therefore drastically underpay for the harm they have caused to society are not uncommon, making this an unsatisfactory legal recourse. 3.2 Application of Nuisance and Pollution Laws Nuisance and pollution laws have been in the US legal tradition for centuries, and have been somewhat effective in limiting environmental pollution. For example, in the case of Freeman, plaintiffs alleged that a corn wet milling facility in Iowa was producing a nuisance with regards to its emissions, calling into question whether Iowa state nuisance laws were
7
Taylor, Alan. “Remembering the Exxon Valdez Oil Spill.” The Atlantic, Atlantic Media Company, 24 Mar. 2014, www.theatlantic.com/photo/2014/03/remembering-the-exxon-valdez-oil-spill/100703/. 8 Liptak, Adam. “Damages Cut Against Exxon in Valdez Case.” The New York Times, The New York Times, 26 June 2008, www.nytimes.com/2008/06/26/washington/26punitive.html. Page 67
preempted by the Clean Air Act. Although the trial court first decided in favor of the Clean Air Act, the Iowa Supreme Court “ruled that state law nuisance claims are not preempted by the Clean Air Act, and reinstated the claims. The Court relied on ‘savings clauses’ in the Clean Air Act which, with language nearly identical to the savings clauses in the Clean Water Act, preserve state law and citizens’ rights to bring state law nuisance claims as long as the state law is at least as stringent as the federal law.”9 Though somewhat promising for environmental protection, this case highlights the low standard of the Clean Air Act and the flexibility of the states in enacting more stringent laws -- or not. Furthermore, nuisance claims are not necessarily arbitrated in favor of environmental pollution; the polluter may be simply made to pay a fine that they can easily afford or the plaintiff may have to pay the polluter to stop polluting. Finally, even in the cases where nuisance and polluter cases are successful, constitutional environmental law would only bolster the standing of such cases. Public Trust/Common Law: Judicial intervention in the cases of public trust is another mechanism that certain environmental lawyers claim as successful. Public trust cases view the government and judiciary as stewards of the environment, meant to preserve it for their citizens to enjoy its resources and benefits as their right. According to Professor Mary Woods, the use of environmental public trust cases is meant to complement the work of the government or, as she says,
9
O'Day, Steve, and Andy Thompson. “Recent Trend in Environmental Litigation: Public Nuisance Cases Against Regulated Entities for Air Pollution.” Smith, Gambrell, and Russell LLP, Smith, Gambrell, and Russell LLP, 22 Nov. 2019, www.sgrlaw.com/recent-trend-in-environmental-litigation-public-nuisance-cases-against-regulatedentities-for-air-pollution/. Page 68
“where the two political branches are doing nothing, the public trust has its most forceful argument for judicial intervention. The atmospheric trust cases don’t ask the courts to determine what measures should be taken to reduce carbon dioxide emissions. But they do ask courts simply to force the other branches to do their job in protecting the natural resources we rely on.”10 Professor Mary Woods claims that such judicial intervention is particularly necessary in times of political inaction on environmental issues, when “across the board on the state, local, and federal level, the agencies are not using the statutes to protect nature — they’re using statutes to permit damage to the environment. These statutes have turned into broad permitting systems, and permit denials have been the exception.”11 In her view, this doctrine is already largely accepted in every state, much like the constitutional inclusions of environmental rights. However, this has not been coordinated at the federal level and lacks a framework to be utilized more effectively.12 Though this may sound like a plausible path of action, the public trust pathway has certain downfalls. For example, in Juliana v. United States, an attempt was made to base an environmental case on constitutional law that was not adapted to the circumstances. The plaintiffs argued that “through the government's affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources,”13 based on the Fifth Amendment of the Constitution. However, the case has currently been struck down by the Ninth Circuit Court of
10
Montaigne, Fen. “A Legal Call to Arms to Remedy Environmental and Climate Ills.” Yale E360, Yale School of Forestry and Environmental Studies, 2 Jan. 2014, e360.yale.edu/features/interview_mary_wood_a_legal_call_to_arms_to_fix_environmental_and_climate_ills. 11 Ibid. 12 Ibid. 13 “Landmark U.S. Federal Climate Lawsuit.” Our Children's Trust, Our Children's Trust, 2020, www.ourchildrenstrust.org/juliana-v-us. Page 69
Appeals, which claims that although the plaintiffs are correct in their concerns and the responsibility of the government in amplifying them, two of the three judges maintained that “while [they] found the government is violating the plaintiffs' constitutional rights, (...) addressing the youth plaintiffs' requested remedies should be addressed by the executive and legislative branches.”14 Including the right to a healthy environment in the Constitution with the procedural right to have the government enforce it -- would have seemingly given the plaintiffs greater standing in seeking an injunction from the court similar to the aforementioned Dutch and Filipino cases. In a similar case, Alec L. v. Jackson, the plaintiffs initiated a public trust climate change lawsuit against the EPA and other agencies for failing to protect the atmosphere. They “requested an injunction requiring that the agencies take actions necessary to reduce CO2 emissions by 6% yearly, beginning in 2013.”15 However, the DC District Court dismissed the case, citing that “there can be no diversity action against the United States, the plaintiffs do not have access to federal courts unless there is a federal question. However, as the Court noted, the public trust doctrine is a creature of state law; there is no federal public trust doctrine. Secondly, the Court concluded that, even if there ever had been a federal public trust doctrine, any such doctrine has been displaced by the federal Clean Air Act.”16 As such, public trust cases may work under limited circumstances, but they certainly cannot replace the utility of constitutionalizing environmental law and using it as a basis for similar litigation.
14
Ibid. Jaffe, Seth, and Anne Jacobsen. “Two Strikes Against Common Law Approaches to Climate Change: The Atmosphere Is Not A Public Trust.” Law and the Environment, 1 June 2012, www.lawandenvironment.com/2012/06/01/two-strikes-against-common-law-approaches-to-climate-change-theatmosphere-is-not-a-public-trust/. 16 Ibid. 15
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In addition to these critiques, common law has a significant weakness when it comes to legislating human and environmental rights. The process of legislation depends largely on jurists and how they set stare decisis, an undemocratic method which, in the case of law enshrined in the Constitution, many originalists find stray from the original intention of the framers. Human rights (and within them, the right to a healthy environment), as a part of the social contract of society, are strengthened when their creation interacts with the people they affect. The process to Constitutionalize an amendment truly does go back to the people of the United States, since both the representatives and the individual state legislatures must pass the amendment. Subnational Level Laws or Constitutions: Critics may claim that environmental law is best left at the state level, where leaders can enforce stringent environmental laws without impeding upon the rights of other states. According to the United Nations Environment Programme (hereafter referred to as UNEP), “subnational instantiation of constitutional environmental rights can also hold special salience in countries that have yet to recognize environmental rights at the federal level.”17 Indeed, this opinion underlines the success of certain cases such as the aforementioned Robinson Township v. Commonwealth of Pennsylvania. There have been a few other examples of success, such as the case of Massachusetts v. EPA where the former argued that the EPA should limit the emissions of greenhouse gases on the basis of the Clean Air Act and the United States Supreme Court ruled in their favor.18In this case, the lawsuit brought by Massachusetts had the capacity to enact environmental action affecting the country as a whole. However, in many other cases, the outcome is not comparable.
17
Daly, p. 2 "Massachusetts v. Environmental Protection Agency." Oyez, www.oyez.org/cases/2006/05-1120. Accessed 9 May. 2020. 18
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Depending on such divided standards creates uneven environmental protections throughout the country, providing no incentive for the laggards in environmental law to institute any progressive measures. For example, California was allowed an EPA waiver, unlike other states, to change its fuel emission standards to more stringent levels due to its past pollution challenges. Consequently, other states were allowed to match California’s emission standard, and 13 states did indeed follow.19 However, in the 2019 California v. EPA case, the Trump government sought to revoke those EPA waivers, claiming that California was placing an undue burden on automobile companies who did not face similar restrictions nationwide. California responded with a lawsuit, alleging the illegality of such actions.20 While the case is still ongoing, it highlights the limitations of state by state action in achieving large-scale transformation and the weakness in lacking uniform federal legislation. 4.
Global Environmental Constitutionalism
Constitutionalizing environmental laws and judicialization is taking place throughout the world, with multiple case studies evidencing this method’s success. According to a UN report on environmental law, South American “constitutional and apex courts (...) have been the most receptive to constitutional rights to a quality environment.21” This includes the Constitutional Court of Colombia, which as of 2017 “has rendered at least 135 decisions in which the constitutional right to quality environment is addressed.”22 Similar movements can be observed
19
Davenport, Coral. “Trump to Revoke California's Authority to Set Stricter Auto Emissions Rules.” The New York Times, The New York Times, 17 Sept. 2019, www.nytimes.com/2019/09/17/climate/trump-california-emissionswaiver.html?auth=login-email&login=email. 20 Ibid. 21 Daly, Erin, and James R. May. Judicial Handbook on Environmental Constitutionalism. United Nations Environmental Programme. March 2017. P.131 https://wedocs.unep.org/bitstream/handle/20.500.11822/20766/judicial-handbook-environmentalconstitutionalism.pdf?sequence=3&isAllowed=y 22 Ibid. Page 72
in Brazil as well, where the Federal Supreme Tribunal “has addressed its corresponding constitutional environmental rights provision at least 26 times.”23 Additionally, across the globe the Indian Supreme Court “has addressed environmental protection in a constitutional context more than 80 times since 1975.”24 A recent example of the judiciary leveraging the Constitution to mandate the government to strengthen its environmental action is the 2019 Urgenda Foundation v. State of Netherlands case.25 The Urgenda Foundation sued the Dutch government for failing to meet the reductions in carbon emissions necessary to prevent climate change and thus protect their citizens. In issuing their decision in favor of Urgenda, the Dutch Supreme Court cited Article 21 of the Netherlands Constitution, “It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment”26 and mandated the Dutch government to further reduce emissions “by at least 25% by the end of 2020”.27 In a similar usage of constitutionalized environmental health as a human right, the plaintiffs in the case Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay were successful in receiving “multifaceted injunctive relief (...) to prevent massive pollution discharges from choking Manila Bay, and to clean and protect it for the benefit of future generations.”28 The plaintiffs cited several legal infractions, starting with the “Respondents’ constitutional right to life, health, and a balanced ecology” as outlined in the Writ
23
Ibid. Ibid. 25 “Urgenda Foundation v. State of the Netherlands.” Climate Change Litigation, Sabin Center for Climate Change Law, Columbia University, 13 Jan. 2020, climatecasechart.com/non-us-case/urgenda-foundation-v-kingdom-of-thenetherlands/. 26 Article 21, Constitution of the Kingdom of the Netherlands, 2008. 27 van Berkel, Dennis. “Landmark Decision by Dutch Supreme Court .” Urgenda, Urgenda, www.urgenda.nl/en/themas/climate-case/. 28 Daly, p. 173 24
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of Kalikasan in Section 16, Article II of the Philippine Constitution.29 The case prompted the Supreme Court to establish new rules for citizen lawsuits, “in which plaintiffs representing the public interest may bring environmental claims even though they did not necessarily experience any injury. (...) The Environmental Rules also incorporate the recent judgment by providing for the issuance of a writ of continuing mandamus.”30 As such, not only did a basis on Constitutional environmental law provide a backbone for the triumph of this case, but it also entrenched further regulations on procedural rights, expanding the right of standing and encouraging citizens to use legal recourses to protect the environment. These cases in the Philippines and the Netherlands are only two of several success stories demonstrating the proven efficacy of using constitutionalized environmental law as a method of environmental protection. 5.
US Legal Precedent for Environmental Constitutionalism
As discussed in the earlier section, US tradition for environmental law is not constitutional, yet there is certainly a legal precedent for successfully leveraging constitutionalized environmental protection in the United States and achieving the success that has been taking place in the international community. Out of the 50 states, 46 recognize the right to some type of environmental rights, outlined in “at least 207 natural resource or environmentrelated provisions.”31 These provisions have proved useful for environmental protection, particularly in the 2016 Robinson Township v. Commonwealth of Pennsylvania case. Pennsylvania’s categorization as a commonwealth “reflects the public trust doctrine’s core populist concerns by framing individual land ownership within the broader context of the
29
Supreme Court of the Philippines. Metropolitan Manila Development Authority Et Al v. CONCERNED Residents Of Manila Bay Et Al. 18 Dec. 2008. Environmental Law Alliance Worldwide. https://elaw.org/content/philppinesmetropolitan-manila-development-authority-et-al-v-concerned-residents-manila-bay30 Metropolitan Manila Development Authority et Al. v. CONCERNED Residents of Manila Bay et Al. 31 Daly, p. 88 Page 74
community,” according to Law Professor Mary Woods.32 In this case, Act 13 of 2012 encouraged the commercialization of fossil fuels in the Pennsylvania Marcellus Shale, weakening local regulations and environmental protections. As such, “municipalities immediately challenged Act 13 arguing it violated certain provisions of the Pennsylvania Constitution that protected inherent rights, limited eminent domain, and preserved natural resources,”33 as well as claiming that it violated the separation of powers. The Pennsylvania Supreme Court ruled in the favour of the Township, based on Article 1, Section 27 of the Environmental Rights Amendment of the Pennsylvania Constitution affording citizens “a right to clean air, pure water and to the preservation of the natural, scenic, historic and esthetic values of the environment.”34 Despite being a case regarding a state constitution and apex court, the Robinson Township instance exemplifies the effectiveness and potential power of including an environmental rights clause in the US Constitution. 6.
Considerations in Constitutionalizing Environmental Law in the United States The crafting of an environmental rights constitutional amendment requires several
considerations in order to ensure its efficacy and correct usage. It must answer the questions of who the defendant can be in relevant cases, how broad the language is, and what type of cases it allows for, and the very definition of the terms such as the “environment” itself. Arguing for a specific crafting of US constitutional law is an area which can be written extensively upon in and of itself. To remain within the scope of this paper, the following section outlines considerations
32
Goodwin, Alfred T. A WAKE-UP CALL FOR JUDGES. Wisconsin Law Review, 2015, p. 787. Sstatic1.squarespace.com/static/571d109b04426270152febe0/t/57ae17c99de4bb3199c04afe/1471027145811/2015_ Goodwin_Wake-Up+Call+for+Judges.pdf. 33 “Regulation of Particular Uses Archives.” Court Rulings, Pennsylvania Land Use Law Library , www.landuselawinpa.com/topic/regulation-of-particular-uses/. 34 Ibid. Page 75
and favors certain positions that would positively influence both the viability and effectiveness of such environmental constitutional legislation. 6.1 Human Rights or Environmental Rights? Global Environmental Constitutionalism includes examples of rights being granted to humans with regards to their environment in such ways that it impacts their health and quality of life, whereas other countries have granted rights for legal standing to the environment or environmental features themselves. The latter include the Ganges river in India, or the recognition of the Rights of Nature in Ecuador which grants nature the rights to “exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution”35 and more. It also grants people the right to represent nature in court, essentially giving nature locus standi. Taking into account certain challenges in passing similar rights in the United States, such as the pre-existing political polarization with regards to environmental issues, the difficulty in passing constitutional amendments in the US, and the “originalist” perspective of certain lawyers and jurists, inter alia, indicate that an smoother route would entail granting humans the environmental rights, rather than granting rights to nature itself. Additionally, with current environmental pollution cases it is easier to demonstrate the causal link between the pollutant and the plaintiff, and in future climate change cases as effects become more severe, the human rights implications will also become more evident (such as homes lost to rising sea levels).36
35
Rights of Nature Articles in Ecuador's Constitution. 2008, therightsofnature.org/wp-content/uploads/pdfs/Rightsfor-Nature-Articles-in-Ecuadors-Constitution.pdf. 36 Peel, Jacqueline, and Hari M. Osofsky. “A Rights Turn in Climate Change Litigation?” Transnational Environmental Law, vol. 7, no. 1, 2018, pp. 37–67., doi:10.1017/S2047102517000292. https://www.cambridge.org/core/services/aop-cambridgecore/content/view/0E35456D7793968F37335429C1163EA1/S2047102517000292a.pdf/rights_turn_in_climate_cha nge_litigation.pdf Page 76
Evidence from international cases of environmental law point to a similar conclusion. In most countries, human rights remain the focus of environmental law. For example, the lawyers in Leghari v. Federation of Pakistan argued that Pakistan had engaged in a breach of rights obligations both with regards to the National Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy of 2014, as well as claiming that “climate change is a serious threat to water, food and energy security of Pakistan which offends the fundamental right to life under Article 9 of the Constitution.”37 By taking a human rights approach in their argument, the lawyers were successful in having the case granted in their favour. Finally, framing environmental protection as a human right could be a vital element in assuaging the tensions of political (and legal) partisanship. The justices of the Supreme Court are appointed by a certain party and tend to have legal views aligned along party lines. A level of partisanship does appear to sway the decision of the justices, and due to the financial interests of lobbies and large companies in the United States, climate change and environmental issues have become partisan as well. The same issue would arise in passing an amendment through the House of Representatives and the Senate with two-thirds majority, and subsequently passing through three-fourths of all US states. However, a human rights perspective for climate change could be beneficial in shifting the narrative from political partisanship. As mentioned earlier in the paper, 46 of all United States already include constitutional provisions for environmental rights in their state legislatures, with cases successfully leveraging those provisions in blue and red states.
37
Lahore High Court Judicial Department. Leghari v. Federation of Pakistan. 4 Sept. 2015. Columbia Law. http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-casedocuments/2015/20150404_2015-W.P.-No.-25501201_decision.pdf Page 77
Scope of Legislation: Another consideration is the limitations to the scope of the language in environmental law. Whereas many countries include vague and unenforceable language that is meant as a symbolic placeholder, other countries verge on an overabundance of details. Bhutan, for example, stipulates in its constitution that forest cover in the country must remain above 60% at all times.38 The narrowness of the language is effective in making use of the provision, and ensuring that the provision is not used to further unintended consequences. However, with such level of detail, the Constitution becomes programmatic and brings upon itself other risks of being undervalued for its extensiveness, being inflexible and unchanging with the times, or simply losing its legitimacy due to its tediousness. The balance is difficult to achieve, but language that is directive in its scope will best achieve the aim of environmental legislation. Temporality of Environmental Harm: Within the amendment itself, or in the judicialization of the law, one of the considerations is whether it will entail protections for current harm or future harm as well, including to future generations. Intergenerational equality is certainly a useful perspective in environmental legal cases, since often the harm of the current generation will take decades, if not centuries, to be repaired (such as the ozone layer, which is still in recovery since the 1989 Montreal Protocol), and can potentially deprive future generations of their human rights. However, it is also particularly difficult to litigate and assign liability on harm that has not happened yet as the causal link can not necessarily be proven. However, if one can demonstrate the beginning of
38
“Bhutan: Committed to Conservation.” WWF, World Wildlife Fund, www.worldwildlife.org/projects/bhutancommitted-to-conservation. Page 78
harm and the mechanism by which it will continue to deteriorate, intergenerational equality may be leveraged. This can be illustrated in the Oposa v. Factoran case, in which a group of youth sued the Filipino government for granting an abundance of timber licensing agreements, leading to massive deforestation among the islands. The plaintiffs argued that the government was thus taking away the rights of theirs and future generations to a healthy environment as delineated in the constitution. The Supreme Court ruled in favor of the plaintiffs and mandated the government to desist in distributing any more timber licensing agreements, as well as cancelling all the ones that were ongoing. With this decision, the Supreme Court gave weight to the rights of future generations as well as protecting the current ones. As such, the language of constitutional environmental law must retain the nature of a certain specificity, while allowing the scope to encompass intergenerational equity. Procedural Rights: Procedural rights in cases of environmental law may be secondary in importance compared to the substantive provisions, but remain crucial in ensuring the enforceability of the provision. As a complementary measure, the procedural rights ascertain that the process can be carried out. According to the UNEP, “three dozen countries in the last 50 years have constitutionalized procedural rights in environmental matters.”39 The procedural rights encompass the rights to information, to participation, and adjudicatory rights. An example of such procedural rights can be found in Brazil, where the substantive rights to “an ecologically balanced environment”40 is paired with the government’s duty to “ensure the
39 40
Daly, p. 83 Ibid., p. 80
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effectiveness of this right.”41 Similarly, in France “Every person has the right, under conditions and limits defined by law, to access information relative to the environment that is held by government authorities and to participate in the development of public decisions having an impact on the environment” (2004 Charter of the Environment).42Even the EPA, in its process for creating regulations, includes a period where the public can comment and inquire about the law. As such, procedural rights are an important measure in realizing the aim of the proposed constitutional amendment. Standing and Justiciability: Finally, in a similar vein to the matter of procedural rights, is the question of standing and justiciability. The United States has a legal tradition of offering narrow opportunities for standing, particularly with regards to environmental law since usually only plaintiffs which have been personally harmed in a certain case can legitimately appear in court. As explained in the UNEP report, “where courts restrict access to judicial fora, as they do typically in the United States, compliance with existing laws, as well as the progressive realization of constitutional promises, may be seen more as a matter of political discretion than of constitutional obligation. Countries that have broadened the scope of potential litigants, as has happened over the last few decades throughout South America and more recently in France, have seen noticeable increases in environmental constitutionalism.”43 Indeed, in countries such as Ecuador, Chile, and India, where Nature is given rights, anyone may appear in court to defend her. However, the right of amparo or tutela in most Latin American countries is another example of how environmental cases can be given standing when
41
Ibid., p. 84 French Charter for the Environment. 2004. 43 Daly, p. 131-132 42
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classified as human rights infringements. According to the UNEP, “procedural environmental constitutionalism is also important in its own right, and can be as or more efficacious than substantive environmental rights because courts are more likely to impart additional process than to impose substantive remedies.”44 Additionally, if standing in environmental constitutionalism is broadened to include several actors, or the whole community (or country), causal effects may be better demonstrated and cases better argued. Pollutants in a certain area, for example, may cause cancer in the inhabitants- but if only one appears as a plaintiff, it is much more difficult to establish a causal link with one case of cancer than with a community with higher cancer rates than the national average. Environmental constitutionalism should also include horizontal applications in its standing because according to the UNEP, “a court may be more likely to find liability against a private party than against the government, both because separation of powers principles tend to protect government actors, and because in most cases the private party’s action(e.g. the cutting down of the forests or the mining) is more likely to be the direct cause of the environmental degradation than is the government’s decision to authorize the private party’s action or its failure to protect against it.”45 This is particularly salient in many US cases, including that of Chevron that was previously discussed. Finally, the American Political Question doctrine prompts a further consideration in the justiciability of environmental litigation with regards to the Federal Government. The doctrine stipulates that Federal courts will “refuse to hear a case if they find that it presents a political
44 45
Ibid., p. 2 Ibid, p. 138
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question. [It] refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue.”46 As stated in the UNEP, “Although courts around the world do not typically expressly invoke the American political question doctrine, their reluctance to engage with fundamental environmental rights may be attributable to the same concerns: institutional bodies with frail historical legitimacy and with neither police power nor economic muscle to back up their orders are reluctant to try to force coordinate branches to make radical policy changes.”47 Fortunately, the Federal Courts have continued to hear environmental cases with regards to the Federal Government, such as Juliana v. United States. Though this doctrine could present a future challenge, for now environmental issues remain plausible cases for Federal Courts, and with further environmental laws this plausibility should only become further established. 7.
Conclusion
Ultimately, constitutionalizing environmental law should not serve in lieu of other environmental legislation, but rather as an overarching provision that lends it greater plausibility and also allows for further possibilities of legal action. Environmental law, much like the innovation in renewable energy or sustainable financing, should take a portfolio approach in engaging different options simultaneously in order to achieve success. However, the value of the Constitution of the United States is not only legal, it is also profoundly symbolic and represents the values of the nation. A majority of this nation is concerned about climate change, and is affected by the lack of environmental rights. These issues touch blue states, red states, urban areas, rural areas, and every other aspect of this country. Besides providing legal recourse,
46
“Political Question Doctrine.” Legal Information Institute, Cornell Law School, www.law.cornell.edu/wex/political_question_doctrine. 47 Daly, p.9 Page 82
constitutionalizing environmental law would send a message nationally and internationally that environmental rights are a priority, and a new realm of human rights that the United States values and respects. Such action would match the scale and severity of the problems this country, and the rest of the world, are already beginning to face.
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Bibliography Article 21, Constitution of the Kingdom of the Netherlands, 2008. Ballew, Matthew, et al. “Do Younger Generations Care More about Global Warming?” Yale Program on Climate Change Communication, Yale School of Forestry and Environmental Studies, 11 June 2019, climatecommunication.yale.edu/publications/doyounger-generations-care-more-about-global-warming/. “Bhutan: Committed to Conservation.” WWF, World Wildlife Fund, www.worldwildlife.org/projects/bhutan-committed-to-conservation. "Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc." Oyez, www.oyez.org/cases/1983/82-1005. Accessed 9 May. 2020. Curwood, Steve, and James Gustave Speth. “Gus Speth Calls for a ‘New’ Environmentalism.” Living on Earth, 15, Feb. 2015, www.loe.org/shows/segments.html?programID=15-P13-00007&segmentID=6. Accessed 31 May, 2020. Daly, Erin, and James R. May. Judicial Handbook on Environmental Constitutionalism. United Nations Environmental Programme. March 2017. https://wedocs.unep.org/bitstream/handle/20.500.11822/20766/judicial-handbookenvironmental-constitutionalism.pdf?sequence=3&isAllowed=y Davenport, Coral. “Trump to Revoke California's Authority to Set Stricter Auto Emissions Rules.” The New York Times, The New York Times, 17 Sept. 2019, www.nytimes.com/2019/09/17/climate/trump-california-emissionswaiver.html?auth=login-email&login=email. French Charter for the Environment. 2004. Conseil Constitutionnel.
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Goodwin, Alfred T. A WAKE-UP CALL FOR JUDGES. Wisconsin Law Review, 2015, p. 787. Sstatic1.squarespace.com/static/571d109b04426270152febe0/t/57ae17c99de4bb3199c04 afe/1471027145811/2015_Goodwin_Wake-Up+Call+for+Judges.pdf. Jaffe, Seth, and Anne Jacobsen. “Two Strikes Against Common Law Approaches to Climate Change: The Atmosphere Is Not A Public Trust.” Law and the Environment, 1 June 2012, www.lawandenvironment.com/2012/06/01/two-strikes-against-common-lawapproaches-to-climate-change-the-atmosphere-is-not-a-public-trust/. King, Martin Luther. “An Address by the Reverend Dr. Martin Luther King, Jr.” An Address by the Reverend Dr. Martin Luther King, Jr., 15 Oct. 1962, Mount Vernon, Iowa, Cornell College. Lahore High Court Judicial Department. Leghari v. Federation of Pakistan. 4 Sept. 2015. Columbia Law. http://blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/non-us-case-documents/2015/20150404_2015-W.P.-No.25501201_decision.pdf “Landmark U.S. Federal Climate Lawsuit.” Our Children's Trust, Our Children's Trust, 2020, www.ourchildrenstrust.org/juliana-v-us. Liptak, Adam. “Damages Cut Against Exxon in Valdez Case.” The New York Times, The New York Times, 26 June 2008, www.nytimes.com/2008/06/26/washington/26punitive.html. Marlon, Jennifer, et al. “Yale Climate Opinion Maps 2019.” Yale Program on Climate Change Communication, Yale School of Forestry and Environmental Studies, 17 Sept. 2019, climatecommunication.yale.edu/visualizations-data/ycom-us/. "Massachusetts v. Environmental Protection Agency." Oyez, www.oyez.org/cases/2006/051120. Accessed 9 May 2020.
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Montaigne, Fen. “A Legal Call to Arms to Remedy Environmental and Climate Ills.” Yale E360, Yale School of Forestry and Environmental Studies, 2 Jan. 2014, e360.yale.edu/features/interview_mary_wood_a_legal_call_to_arms_to_fix_environment al_and_climate_ills. O'Day, Steve, and Andy Thompson. “Recent Trend in Environmental Litigation: Public Nuisance Cases Against Regulated Entities for Air Pollution.” Smith, Gambrell, and Russell LLP, Smith, Gambrell, and Russell LLP, 22 Nov. 2019, www.sgrlaw.com/recenttrend-in-environmental-litigation-public-nuisance-cases-against-regulated-entities-for-airpollution/. Peel, Jacqueline, and Hari M. Osofsky. “A Rights Turn in Climate Change Litigation?” Transnational Environmental Law, vol. 7, no. 1, 2018, pp. 37–67., doi:10.1017/S2047102517000292. https://www.cambridge.org/core/services/aopcambridgecore/content/view/0E35456D7793968F37335429C1163EA1/S2047102517000292a.pdf/r ights_turn_in_climate_change_litigation.pdf “Political Question Doctrine.” Legal Information Institute, Cornell Law School, www.law.cornell.edu/wex/political_question_doctrine. “Regulation of Particular Uses Archives.” Court Rulings, Pennsylvania Land Use Law Library, www.landuselawinpa.com/topic/regulation-of-particular-uses/. Rights of Nature Articles in Ecuador's Constitution. 2008, therightsofnature.org/wpcontent/uploads/pdfs/Rights-for-Nature-Articles-in-Ecuadors-Constitution.pdf. Shepardson, David. “Amazon Vows to Be Carbon Neutral by 2040, Buying 100,000 Electric Vans.” Reuters, Thomson Reuters, 20 Sept. 2019, www.reuters.com/article/us-amazon-
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environment/amazon-vows-to-be-carbon-neutral-by-2040-buying-100000-electric-vansidUSKBN1W41ZV. Supreme Court of the Philippines. Metropolitan Manila Development Authority Et Al v. CONCERNED Residents of Manila Bay Et Al. 18 Dec. 2008. Environmental Law Alliance Worldwide. https://elaw.org/content/philppines-metropolitan-maniladevelopment-authority-et-al-v-concerned-residents-manila-bayTaylor, Alan. “Remembering the Exxon Valdez Oil Spill.” The Atlantic, Atlantic Media Company, 24 Mar. 2014, www.theatlantic.com/photo/2014/03/remembering-the-exxonvaldez-oil-spill/100703/. “Urgenda Foundation v. State of the Netherlands.” Climate Change Litigation, Sabin Center for Climate Change Law, Columbia University, 13 Jan. 2020, climatecasechart.com/non-uscase/urgenda-foundation-v-kingdom-of-the-netherlands/. Van Berkel, Dennis. “Landmark Decision by Dutch Supreme Court.” Urgenda, Urgenda, www.urgenda.nl/en/themas/climate-case/.
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Power, Party, and PostApartheid The Role of the Political Party in South Africa’s Constitutional Law
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Power, Party, and Post-Apartheid: The Role of the Political Party in South Africa’s Constitutional Law
Connor Akiyama Tufts University Spring 2021
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Abstract In 1994, South Africa held its first fully enfranchised election to usher in a new era and move away from the cruel Apartheid system of racial separation. This paper seeks to explain how political party-based constitutional negotiations in the final years of Apartheid influenced the country’s structure of government. I first address the more philosophical debate regarding the role of political parties in a constitutional society and how different countries regard the proper role of parties as either free association organizations or core political elements. I then explain how these debates have forged systems of government that benefit different kinds of political parties depending on their popularity and the geographic distribution of support. Turning to South Africa specifically, the paper then covers the legal history of political organizing in South Africa before Apartheid and the negotiations that lead to its revocation. By addressing how the electoral math of the major political parties and their respective interests, this paper argues that the unique experiences of Apartheid are one of the driving causes for the high level of protections for political parties in the South African Constitution. Furthermore, the story of how South Africa’s constitution came to be is a further argument for the need to view national constitutions in their own historical context rather than abstractly comparing different elements across vastly different histories as is done in the beginning of the paper.
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1. Introduction In 1994, South Africa finally removed its white-minority, Apartheid government through its first fully enfranchised election. The election not only decided a new national president and a new South African Parliament, but it also established a bold vision for a future of peace and equality for South Africans.1 The new republic was declared to be a “society in which all South Africans, both black and white, will be able to walk tall, without fear in their hearts, assured of their inalienable right to human dignity— a rainbow nation at peace with itself and the world.”2 However, behind the scenes of the optimism and jubilation that swept South Africa was a gritty negotiation process of constitutional reform that struggled to unite the divided interests and welfare of the nation peacefully. In addition to establishing aggressive constitutional protections of equality and socioeconomic rights, South Africa’s new constitution needed to establish electoral rules, provincial organization, rules for amendment, courts, and more. The South African Constitution reflects a growing trend in contemporary constitutional law that recognizes the importance of political parties through explicit constitutional protection mechanisms. The inclusion of political parties in modern constitutions clashes with the highminded, anti-factionalist approach of many classical constitutions, but better represents democracy in the era of mass politics. In South Africa, the direct experiences of Apartheid and the party-driven approach to the constitution’s drafting were the primary drivers of the codification of broad protections for political parties and the establishment of a government with an independent judiciary and a hybrid model of Westminster parliamentary democracy.
1
“Nelson Mandela’s Inauguration Speech as President of SA,” SAnews, May 10, 2018, https://www.sanews.gov.za/south-africa/read-nelson-mandelas-inauguration-speech-president-sa. 2 “Nelson Mandela’s Inauguration Speech as President of SA” Page 91
This paper has three main parts. First, this paper starts with a theoretical discussion about why constitutions have distanced themselves from their disdain of political parties and have instead embraced regulation of political parties as fundamental to democracy. Then, this paper will explore the different incentive structures that various constitutional democracies have established for the control of political parties. Finally, this paper will analyze how the unique circumstances of South Africa led to a special role for political parties in forging a new constitutional order. These unique circumstances and incentive structures helped push for the creation of a parliamentary republic with proportional voting, as well as strong protection for political organization within the constitution. 2. The Role of the Modern Political Party Political parties, at their core, are groups of constituents and politicians who share similar political, economic, and cultural beliefs and work to obtain the power necessary to implement their plans.3 Older generations of constitutional drafters decried this form of ideological factionalism, but political parties today have evolved beyond being mere factions. 4 Today, parties have become institutionalized structures of political power and a necessary element to the organization and efficacy of a modern state.5 While political parties around the world exist in various stages of sophistication and sustainment, their importance to the maintenance of a healthy political system has become readily apparent, as have the dangers of a single party acquiring too much power.
3
“Political Parties,” National Democratic Institute, August 4, 2016, https://www.ndi.org/what-we-do/politicalparties. 4 Yigal Mersel, “Hans Kelsen and Political Parties,” Israel Law Review 39 (Summer 2006): 160. 5 Ibid, 160. Page 92
Typically, parties are motivated by a self-serving rational choice theory, which posits that they have fixed preferences; use strategic decision-making to achieve these preferences; react heavily to expectations of other actors; and evaluate political systems based on benefits for their office-seeking tendency. 6 For a long time, Western political thought viewed political parties and their factionalism as a danger to thoughtful, democratic deliberation. Parties and inevitable factionalism, in their minds, created ideological groups capable of organized partisanship and strategic power moves that served their interests rather than those of the nation. 7 This view is evident in Federalist Papers No. 10, in which Alexander Hamilton, writing to advocate for the ratification of the new U.S. Constitution, argues that the Constitution’s vision of a centralized Union is preferable because of “its tendency to break and control the violence of faction.”8 In his farewell address, President George Washington famously voiced his concerns regarding the “danger of parties” emerging in the nascent nation, especially those based on geography. 9 In Europe, the Rousseauean ideal of democracy as representing a singular will of the people rather than the divergent and contradictory views of the polity persisted. 10 In the 20th century, Hugo Preuß, the author of the Weimar Republic’s draft constitution, and President Charles de Gaulle of France both rejected the notion that political parties were critical building blocks for a healthy, modern democratic state and believed that they existed in opposition to cooperative democracy or national unity. 11 As a result of the denigration of the critical roles that parties play, both
6
Ainara Mancebo, “Parties’ Motivations for Electoral Reform under the Democratic Transition in South Africa,” Revista Española de Ciencia Política; Madrid, no. 50 (July 2019): 45. 7 Mersel, “Hans Kelsen and Political Parties,” 158-81. 8 Alexander Hamilton, “Federalist Papers No. 10,” November 22, 1787, https://billofrightsinstitute.org/foundingdocuments/primary-source-documents/the-federalist-papers/federalist-papers-no-10/. 9 George Washington, “President George Washington’s Farewell Address,” 1796, https://www.ourdocuments.gov/doc.php?flash=false&doc=15&page=transcript. 10 Stephen Gardbaum, “Political Parties, Voting Systems, and the Separation of Powers,” The American Journal of Comparative Law 65, no. 2 (June 2017): 237, https://doi.org/10.1093/ajcl/avx030. 11 Ibid, p. 237. Page 93
President Paul von Hindenburg of the Weimar Republic and President de Gaulle emphasized their own presidential position above the squabbling of political parties and exercised power in such a way that minimized or bypassed the role of parties in the governing of the country. 12 Despite early fears about their existence and power, political parties have become even more relevant and powerful in the modern century. As evidenced through analysis of modern constitutions, the political forces of the modern party system eventually overcame the attempts of political elites to discourage their presence in constitutional democracies. 13 Older constitutions like those of the United States and the Netherlands do not explicitly mention political parties, but newer constitutions and amendments like those of South Africa and Kazakhstan do outline significant protections for and from political parties. 14 In fact, mentions of political parties in constitutions increased dramatically in the post-war period. By 2000, more than 80% of current constitutions mention political parties, as does nearly every constitution in Africa, Latin America, and post-Soviet countries, which reflects the modern attitude towards organized politics. 15 Famed Austrian constitutional scholar Hans Kelsen wrote that political parties are “one of the most important elements of a democracy” and that it is inconceivable “to believe that democracy is possible without political parties.”16 Kelsen justifies the existence of political parties through four lenses: political parties as the vessel of political participation and freedom;
12
Ibid, p. 237-8. “Political Parties” (Comparative Constitutions Project, 2008), http://comparativeconstitutionsproject.org/files/cm_archives/political_parties.pdf?6c8912. 14 “Constitution of the Netherlands” (Constitute Project), accessed April 20, 2020, https://www.constituteproject.org/constitution/Netherlands_2008.pdf?lang=en., “Constitution of South Sudan” (Constitute Project), accessed April 20, 2020, https://www.constituteproject.org/constitution/South_Sudan_2011.pdf., “Constitution of Kazakhstan” (Constitute Project), accessed April 20, 2020, https://www.constituteproject.org/constitution/Kazakhstan_2011.pdf. 15 “Political Parties” (Comparative Constitutions Project, 2008), http://comparativeconstitutionsproject.org/files/cm_archives/political_parties.pdf?6c8912. 16 Mersel, “Hans Kelsen and Political Parties,” 161. 13
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political parties as pragmatic actors to make compromises; political parties as a bulwark against a single-opinion state; and political parties as the only real manifestation of modern representation. 17 As the world adopted frameworks for political parties into their constitutions, Kelsen applauded the new acknowledgment of the need to protect the functioning of parties in a democracy. 18 Of course, different countries have different approaches to political parties, but the crux of the party regulation problem is that parties are more than just ideological labels for voters or politicians. Party organizations straddle multiple realms, from voter to elected politician and from party bureaucrat to government bureaucrat.19 Those in the United States who subscribe to the Founding Fathers’ fears of factions use documents like Federalist Papers No. 10 to criticize U.S. Supreme Court decisions that have granted greater liberties to political parties at the cost of individual liberties. Even in the United States, however, U.S. Supreme Court jurisprudence has evolved over time, from rulings that limited federal election law from applying to political party internal primaries as in Newbury vs. United States (1921) to a more interventionist state role that included the elimination of white-only primaries in Terry v. Adams (1953).20 At the same time, in the 1975 ruling of Cousins v Wigoda, the Supreme Court stated that “any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.”21 Due to the United States’ tradition of common law, the Constitution’s lack of explicit regulations on political parties, and the difficulty of constitutional amendment, judicial precedent has been used
17
Mersel, “Hans Kelsen and Political Parties,” 163-4. Mersel, “Hans Kelsen and Political Parties,” 175. 19 Wayne Batchis, “The Political Party System as a Public Forum: The Incoherence of Parties as Free Speech Associations and a Proposed Correction,” 52 U. Mich. J.L. Reform 437,” University of Michigan Journal of Law Reform 52 (2019): 454. 20 Ibid, 437-84. 21 Cousins v. Wigoda, 419 U.S. 477, 487 (1975). 18
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to defend the rights of political parties on the grounds of the First and Fifteenth Amendments. 22 Even the United States Constitution, as the world’s oldest, still-in-use constitutional, demonstrates the evolution of the recognition that political parties are a fundamental element of a constitutional democracy. 23 Newer constitutions have taken a more direct approach to the regulation of political parties such as party bans on political parties that openly intend to subvert the democratic system. The German Constitution took lessons from the Nazi Party’s rise to power and inserted clauses of militant democracy that require political parties to be internally democratic, giving the Constitutional Court the ability to ban undemocratic parties. 24 In 2003, the European Court of Human Rights ruled that the Refah political party must be dissolved, its leaders banned from political activities for five years, and the party’s financial assets returned to the state in its groundbreaking decision of Refah Partisi (Welfare Party) and Others v. Turkey.25 Although the Refah party was not the first Turkish party to be dissolved, previously banned parties were small whereas the Refah party was the leading partner in the ruling government coalition. 26 The court decided that the Refah party, as an Islamic-inspired party, held beliefs about Islamic principles and shariah that would undermine democracy and threatened the Turkish Constitution’s requirement of secular democracy. 27 While the basis and democratic implications of the ruling itself are controversial, the Refah case demonstrated an aggressive form of militant democracy
22
Batchis, “The Political Party...,” 457. “Timeline of Constitutions,” Comparative Constitutions Project, accessed April 20, 2021, https://comparativeconstitutionsproject.org/chronology/. 24 “Constitution of the German Federal Republic” (Constitute Project), accessed April 20, 2021, https://www.constituteproject.org/constitution/German_Federal_Republic_2014?lang=en. 25 Kevin Boyle, “Human Rights, Religion and Democracy: The Refah Party Case,” Essex Human Rights Review 1, no. 1 (2004): 1. 26 Ibid, 4. 27 Ibid, 3-4. 23
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that applies to explicitly anti-democratic parties. New threats to constitutionalism by political parties no longer require a direct challenge to democracy, but use amendments, electoral rule modifications, and appointments to entrench themselves in power while staying nominally democratic to avoid any party bans, similar to Fidesz in Hungary. 28 Without any clear way to prevent all forms of constitutional retrogression, it is a constant struggle for democratic societies to use constitutions to regulate political parties and to strengthen civil society to prevent the ability of groups to slide into abusive constitutionalism. 29 Although political party bans comprise only a small selection of the range of constitutional prohibitions on political parties that exist around the world, they are the most explicit in their intent to specifically target the power of the party. Of course, political parties are not only threats to the constitutional order; they can also be key players in the creation of a country or its type of government. When parties are major players in constitutional drafting, the constitution-making process often ends up reflecting the history, long-term strategy, and electoral prospects of the negotiating parties. Political elites in nascent democracies can set the foundations of party dominance through constitutional engineering, a critical path for parties reliant on the symbolism of liberation that understand their goodwill and popularity may one day run out.30 Minority parties can simultaneously demand opposition protections if they understand they are unlikely to win a national election. 3. Political Party Incentives
28
David Landau, “Abusive Constitutionalism,” UC Davis Law Review 47 (April 3, 2013): 208. Aziz Z. Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy,” UCLA Law Review 65 (2017): 78, https://doi.org/10.2139/ssrn.2901776. 30 Clemens Spiess, Democracy and Party Systems in Developing Countries: A Comparative Study of India and South Africa (Routledge, 2008): 87. 29
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Political parties have interests in a constitutional order beyond being protected from state retribution, namely the constitution’s system of electoral mechanisms. After all, a party that cannot maximize its number of supporting votes cannot sustain itself. Moreover, there is a difference between political parties and the party system. Political parties operate between society and government, but countries only become a party system when there is regularity in patterns of party competition, stability of party roots, citizens accept the legitimacy of parties, and the party is organized. 31 Different electoral systems and balances of power between the various branches of government provide unique incentives for various political parties. These incentives of political power that come with different forms of separation of power or voting representation can encourage parties to push for systems that best benefit their electoral strengths when drafting a new constitutional order. Unfortunately for classical political thinkers, the systems of government established to limit the power of faction have only empowered the rise of the political party. Initial designs that were intended to prevent unified government have created even stronger forms of unified government thanks to political parties. UCLA professor Stephen Gardbaum finds that in parliamentary systems, the rise of mass-participation party politics transferred the power from Parliamentarians to the party leaders by bringing about the need for strict party discipline. 32 The stricter party discipline allows for prime ministers to hold even greater power when the entirety of the party is behind them. Semi-presidential and presidential systems were introduced by leaders who wanted to curtail the factionalism of parliamentarianism and Prime Minister
31
Cindy Skach, “Political Parties and the Constitution,” The Oxford Handbook of Comparative Constitutional Law (May 2012): 1–20, https://doi.org/10.1093/oxfordhb/9780199578610.013.0043. 32 Gardbaum, “Political Parties, Voting Systems, and the Separation of Powers,” 235. Page 98
elections, but even in these systems, parties have organized to capture the executive and legislative branches knowing the power that unified government can bring. 33 Voting systems, such as proportional representation (PR) voting or majoritarian voting, also affect the interests of political parties. In parliamentary systems with majoritarian, first-pastthe-post voting, political parties have every incentive to maintain a robust internal organization to carry themselves to victory and prevent backbench revolts to avoid splitting the vote. At the same time, parties in contested districts are split between appealing to their activist wing and the median voter, both of which are critical in a winner-take-all district. Politicians and parties respond, however, by limiting electoral competitiveness through efforts like public funding, incumbency privileges, or blocking third-party activism to protect themselves from internal power struggles and third-party vote-splitters while maintaining the median voter.34 For smaller parties, there are two competing interests. There is an interest in tying itself to a major party to have a say in policy implementation, but there is also a vested interest in ensuring they are not tying themselves to an unpopular, larger party that voters will blame them for come election time.35 Either incentive pathway depends on the circumstances, but both require strengthening party leadership to make the necessary calculations. As witnessed in the United Kingdom, the introduction of strong, organized political parties to a majoritarian, first-past-the-post electoral system meant that individual MPs were no longer used to check back the government but were turned into disciplined members of the party’s majority which turned the UK into a stronger unified government structure when a single party won the majority. 36
33
Ibid, 237-240. Samuel Issacharoff, “Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition,” Columbia Law Review 101, no. 2 (2001): 303. 35 Gardbaum, “Political Parties, Voting Systems, and the Separation of Powers,” 246. 36 Ibid, 243. 34
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There is typically not just one dominant party in parliamentary democracies with PR, but rather there is typically a divided government separated not by institutions but by the parties.37 During minority government, the inherent instability of the ruling party’s position means all parties must always be ready for another election lest the government fall or be ejected over a vote of no confidence. 38 With PR, there still remains an incentive for political parties to have centralized power structures, but instead of doing so to retain majority power, in this case it is so party elites can broker negotiations with other parties with full party loyalty. 39 This is why in a PR parliament with a coalition government, the governing parties must crackdown on party insubordination even more so than in a majoritarian system because every vote matters since margins are smaller. This is a necessary consideration for political parties in PR because of the significant bargaining costs and legislative costs of coalition-building and coalitionmaintenance.40 Smaller fringe political parties often have incentives and opportunities to make themselves critical partners to larger parties — in such a scenario — thus boosting their influence.41 There is a further split in PR voting systems between closed list and open list systems of choosing which members will be selected to fill the seats won by the party. Closed lists give full power to the party to prioritize the members it wants and empower the party leadership by restricting voters’ rights to choose their representatives who might buck the leadership.
37
Ibid, 246. Richard Albert, “The Fusion of Presidentialism and Parliamentarism,” The American Journal of Comparative Law 57, no. 3 (2009): 566. 39 Gardbaum, “Political Parties, Voting Systems, and the Separation of Powers†,” 248. 40 Albert, “The Fusion of Presidentialism and Parliamentarism,” 568. 41 Ibid, 567. 38
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In semi-presidential systems, there are different mechanisms that make prime ministers responsible and dismissible by either the legislature or by both the legislature and president. These systems provide for an extra layer of protection in countries that have suffered from authoritarian pasts and wish to have multiple checks on executive leadership. 42 In presidential systems, there will be periods of unified government when the same party controls both branches, but does not quite reach the unitary power in a parliamentary system, due to a slackened link between the electoral prospects of the executive and legislative branches. 43 However, in both cases, the strength of party politics can override these institutional checks when legislators are unwilling to exercise their power against the leader of their own party. Similar to the considerations of proportional representation versus majoritarian voting, in parliamentary systems, broad parties will do better in majoritarian systems whereas PR will split the legislative branch into many parties. 44 Therefore, since the presidential race in both scenarios is a winner-take-all event and cannot be split proportionately, parties increase their control over candidate choice by hosting primaries, holding runoffs, or through straight plurality voting.45 In countries with strong executives—independent of the legislature— the more individualistic nature of the office tends to encourage an expansion of power, and in semi-presidential systems, a tendency of presidents overruling their prime ministers emerges, especially in countries where parties have weak institutionalization. 46 A semi-presidential PR system gives parties the greatest headaches because of the increased possibility of a minority government in a legislature and an executive from a different party entirely. In all combinations however, there are different
42
Gardbaum, “Political Parties, Voting Systems, and the Separation of Powers†,” 252. Ibid, 256. 44 Ibid, 252. 45 Ibid, 253. 46 Skach, “Political Parties and the Constitution,” 8. 43
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incentives based not only on electoral prospects, but also party strength and unity, for political parties to support different kinds of representation and voting to strategically position themselves. Such maneuvering was apparent during the party-led constitutional reform of postApartheid South Africa in the early 1990s. 4. South Africa Today, the Republic of South Africa operates under a unique system of government shared only by Botswana, Myanmar, and a few Pacific island nations. This section will not only look at the legacy of Apartheid on the formation of the new constitution, but also how different incentives and motivations of the parties influenced the structuring of the new government. Under the current South African Constitution, every five years, the country holds national, provincial, and municipal elections, but municipal elections are staggered by two years. As aforementioned, South Africa follows a unique system of government that is not a pure Westminster model of parliamentary supremacy, the —“American” model of an executive president independent of the legislature— or even a semi-presidential model with both an executive and prime minister. Rather, South Africa is a form of presidential parliamentarianism, a fusion of executive power and parliamentary legislature, that is gaining greater attention in the realm of constitutional law. 47 More specifically, South Africa has an executive president who serves as the head of state, government, and commander-in-chief. The said president is elected by the lower house of the South African Parliament, the National Assembly. This individual must be an active member of the National Assembly and willing to resign their seat upon assuming the office of the presidency. The president still has a certain degree of legislative checks against them; however, including a parliamentary vote of no confidence. While South
47
Albert, “The Fusion of Presidentialism and Parliamentarism,” 531.
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Africa’s model shares many elements of the Westminster model, it differs because the head of government does not necessarily come from the governing party/coalition, but rather it is elected by the entire National Assembly, not the party. As for the South African Parliament, there is a 400-person lower house, the National Assembly, whose seats are distributed based on the percent of the vote achieved by each party in the election. 48 The upper house, the National Council of Provinces, has 90 seats with ten delegates for each province. These seats are chosen by the vote of their respective provincial legislators.49 South Africa also has a strong Constitutional Court that has shown its willingness to utilize its power of judicial review to check back the other branches. Essentially, South Africa’s government follows many core elements of Bruce Ackerman’s proposed structure of constrained parliamentarianism that seeks to avoid the partisan gridlock of the United States and the parliamentary supremacy of the UK. 50 This structure exists because of the incentives that drove the political parties which hammered out the initial interim South African Constitution. In order to understand the parties’ historical and electoral motivations to craft such a government, a proper explanation of the role that political parties played in ending Apartheid and transitioning to democracy is first required. 5. History of the South African Legal System The arrival of European colonizers, just like elsewhere in Africa, would launch centuries of new political developments across the continent that took little regard for pre-existing African political entities. Thus, even though there were people living in the area for millennia before Dutch settlers, the modern political identity of a South African nation-state and its history began
48
“National Assembly,” Parliament of the Republic of South Africa, accessed September 9, 2020, https://www.parliament.gov.za/national-assembly. 49 “National Council of Provinces,” Parliament of the Republic of South Africa, accessed September 9, 2020, https://www.parliament.gov.za/national-council-provinces. 50 Bruce Ackerman, “The New Separation of Powers,” Harvard Law Review 113, no. 3 (January 2000): 633–729. Page 103
in 1652 when Dutch colonizers set foot in South Africa. The Dutch would soon implement slavery in the Dutch Cape Colony. Even after the British takeover of the Cape and the abolishment of slavery, the system of racial hierarchy that had existed for centuries remained in place. 51 By the early 1900s, concerns about reductions in African laborers, for diamond mines and white-owned farms, due to new opportunities in urban areas and local agriculture, led to the Native Lands Act of 1913.52 The law handed over 93% of the land to the white minority; forced black South Africans into the remaining reserves; and criminalized their presence in white lands if they lacked permission.53 In the 1948 election, the Reunited National Party, campaigning on a platform of greater independence from the British to protect Afrikaners and the domination of white South Africans, won through extensive gerrymandering. 54 Following its victory, the Reunited National Party merged with the Afrikaner Party in 1951 to become the National Party (NP) and proceeded to implement Apartheid by assigning African groups to tribal homelands; denying access to jobs; eliminating voting; and empowering the country’s white minority. 55 The National Party also set out to increase its control over the organs of government to solidify both its own power and the system of Apartheid. In 1951, the National Party seized its chance to take power from the South African courts in a battle over the removal of coloured voters (defined as a person with mixed European and African heritage) from the voters’ roll. The problem for the NP was that the British Parliament’s South Africa Act of 1909 that created the Union of South Africa guaranteed that coloured voters could remain on voter rolls unless it was
51
Daisy Jenkins, “From Apartheid to Majority Rule: A Glimpse Into South Africa’s Journey Towards Democracy,” Arizona Journal of International and Comparative Law 13 (n.d.): 467. 52 Jenkins, “From Apartheid to Majority Rule: A Glimpse Into South Africa’s Journey Towards Democracy,” 469. 53 Ibid, 463–89. 54 Berman, Dan. “Apartheid Was Helped by a Twisted Election System.” FiveThirtyEight (blog), May 22, 2010. https://fivethirtyeight.com/features/apartheid-was-helped-by-twisted/. 55 Jenkins, “From Apartheid to Majority Rule: A Glimpse Into South Africa’s Journey Towards Democracy,” 463– 89. Page 104
overturned by a 2/3 majority in Parliament that the NP did not have. The NP argued that in Ndlwana v. Hofmeyr (1937), the Appeal Court of the Union of South Africa upheld the South African Parliament’s sovereignty to pass laws that would supersede the 1909 South Africa Act.56 Furthermore, it was argued that South Africa was allowed to pass its own laws because the 1931 Statute of Westminster decreed that no previous acts of the UK Parliament could void any new laws in the British Dominions of Ireland and South Africa. 57 However, in spite of the Ndlwana ruling and the 1931 Statute of Westminster, the Appeal Court struck down the Coloured Voters’ cases unanimously, even though three of the five justices adhered to a judicial framework friendlier to the South African government.58 The Appeal Court argued that the entrenched clauses of the South Africa Act were still valid, rejecting both its own, previous Ndlwana ruling and a separate government argument that coloured voters would have more rights on a voter role for a segregated constituency. 59 In response to the ruling, Parliamentarians of the NP formed a High Court of Parliament with the self-designated power to overrule Appeal Court decisions, a move that was rejected by even the most conservative justices of the court.60 Following the rejections of the Appeal Court, the NP-led government enlarged the upper house of Parliament to get the 2/3 majority while also stacking the Appeal Court to convert it into a pro-Apartheid branch. 61 Following South Africa’s 1960 (all-white) referendum to become a republic and separate from the British monarchy, Apartheid South Africa operated similarly to a Westminster
56
Griswold, Erwin N. “The ‘Coloured Vote Case’ in South Africa.” Harvard Law Review 65, no. 8 (1952): 1361– 74. 57 Ver Loren Van Themaat, “Legislative Supremacy in the Union of South Africa,” University of Western Australia Law Review 6 (1954): 61. 58 Albie Sachs, Justice in South Africa (Berkeley: University of California Press, 1973): 143. 59 Ibid, 143-4. 60 Ibid, 144. 61 Ibid, 144. Page 105
Parliamentary system with legislative supremacy, a ceremonial president, and an independent, but stacked, judiciary. 62 In spite of this, many black South Africans saw hope in the judicial branch and the rule of law as a way out of Apartheid. In 1971, Albie Sachs, a future justice of the South African Constitutional Court, quoted a South African ex-Chief Justice, “It is discriminatory legislation which prevents our Courts from dispensing equal justice under law; if that legislation were to be repealed our Courts would dispense equal justice… for our common law is colour-blind.”63 Sachs admitted that while many black South Africans at the time did not like lawyers, they still fought to be represented in court and to have lawyers to defend them in criminal cases.64 In the 1961 Treason Trial, Nelson Mandela, himself a practicing attorney, attacked the administration of justice in South Africa on procedural and moral grounds. 65 It is thus very likely that Mandela’s own respect for the rule of law but first-hand experience with the dangers of legislative supremacy and stacked courts influenced much of his political beliefs as he helped forge South Africa’s constitution in the 1990s. Evidence of such thinking can be found three years after Mandela’s release from prison. In a 1993 address to the Law Society of Transvaal, Mandela outlined his vision of a new judicial enforcement of human rights by declaring, “The restructuring of the judiciary must and will take place. The legal profession's participation and attitudes will play an important role in the process of restructuring.”66 In conjunction with Mandela’s vision of a new South Africa, Albie Sachs also pushed for South
62
“Constitutional History of South Africa,” ConstitutionNet, accessed May 5, 2020, http://constitutionnet.org/country/south-africa. 63 Sachs, Justice in South Africa, 160. 64 Ibid, 202. 65 Ibid, 218. 66 “Nelson Mandela - Speeches - Opening Address by Nelson Mandela to the Law Society of the Transvaal.” Accessed September 11, 2020. http://www.mandela.gov.za/mandela_speeches/1993/931029_law.htm. Page 106
Africa to be a nation guided by the rule of law by adopting a justiciable bill of rights. 67 Both men would be critical forces in the creation of the new constitution and laid the groundwork for the establishment of a strong and independent judicial branch in the new government. Throughout the Cold War, South Africa upheld apartheid not only at home, but also within neighboring Rhodesia, within illegally occupied South West Africa (present day Namibia), and did so by assassinating opposition elements across Europe and Southern Africa. The Apartheid government’s vicious oppression of minorities across the country and horrible track record on human rights sparked international pressure against the government. The only legal domestic opposition to the NP was a scattering of white, progressive and reformist antiApartheid parties that achieved no major electoral wins against the NP. South Africa became increasingly isolated as more and more rounds of government sanctions, private divestment, capital flight, economic instability, and international isolation hit the country. After winning his party’s leadership nomination, President F.W. de Klerk continued the prior administration’s secret negotiations with the banned African National Congress (ANC). Over the course of the next few years, the NP and ANC conducted extensive talks about negotiations that would eventually bring about the transition to a fully enfranchised democracy. Throughout Apartheid, opposition forces had been engaged in anti-government struggle against the ruling party even going to the point of armed resistance, the most notable of which was the African National Congress (ANC). The ANC was founded in 1912 and pushed peacefully against white supremacy for decades, and initially peacefully resisted Apartheid as well. In 1960, a splinter group of the ANC, the Pan African Congress, gathered thousands at the
67
Sachs, Albie. “A Bill of Rights for South Africa: Areas of Agreement and Disagreement Human Rights in the Post-Apartheid South African Constitution.” Columbia Human Rights Law Review 21, no. 1 (1990 1989): 13–44. Page 107
Sharpeville police station to protest laws requiring black South Africans to carry pass cards. Without warning, South African police opened fire killing 69. 68 Following the Sharpeville massacre, the ANC and PAC turned to armed resistance and fled the country to conduct their operations from South Africa’s neighboring states. After his famous Rivonia trial and subsequent 27 year long imprisonment on the grounds of sabotage, Nelson Mandela became the face of the ANC and would become the leading figure of the new South Africa following his release from prison in 1990. As the nation’s oldest black political organization and longest opponent of Apartheid, the ANC emerged as the primary representative for black South Africans. The other major party was the Inkatha Freedom Party which desired protections for the Zulu minority that was largely concentrated in the KwaZulu-natal province. 69 6. The New Constitution for a New South Africa In 1990, President de Klerk announced the unbanning of political organizations and the release of Nelson Mandela. The following year, he went further and announced that the legal groundwork for Apartheid would be repealed under his administration. 70 After the 1992 (whiteonly) referendum to negotiate a new Constitution, F.W. de Klerk was able to prove he had a popular mandate to continue negotiations with the ANC over the formation of a new constitution. With the understanding that South Africa would significantly increase the enfranchisement of its black majority, the political parties adjusted their strategies. The NP explicitly rejected any form of Westminster legislative supremacy in this new constitution and
68
McRae, Matthew. “The Sharpeville Massacre.” Canadian Museum for Human Rights. Accessed September 11, 2020. https://humanrights.ca/node/501. 69 “Inkatha Freedom Party.” (Oxford, United Kingdom: Oxford University Press) https://doi.org/10.1093/oi/authority.20110803100003941. 70 “Negotiations and the Transition,” South African History Online, June 30, 2011, https://www.sahistory.org.za/article/negotiations-and-transition; Christopher S. Wren, “South Africa Moves to Scrap Apartheid (Published 1991),” The New York Times, February 2, 1991, sec. World, https://www.nytimes.com/1991/02/02/world/south-africa-moves-to-scrap-apartheid.html. Page 108
instead advocated a system of proportional representation to ensure it could consolidate power in a few strategic areas like the Western Cape.71 The fringe elements of the far-right demanded a White homeland for only Whites and wanted to leave the rest of the country to a black majority government.72 The NP and Democratic Party did not agree with this viewpoint — and knowing that the election was going to bring in an Black-majority victory — intended to push for rule of law protections such as a bill of rights, the devolution of power to regional governments, and checks and balances. 73 They, alongside the Inkatha Freedom Party, wanted to protect their parties in the expected outcome of an ANC victory and thus desired a consociational democracy (rather than a majoritarian one) with PR in both legislative and executive branches (the cabinet). 74 Such a voting system would ensure that they would receive representation even if they were in the minority in every province, because seats would be allocated by a national percentage of the vote. The Horowitz-Lijphart debate about intra-ethnic and interethnic political competition from the 1960’s became a deeply contested point in the debate over whether or not proportional representation was a good system of representation or just a cover to maintain some form of white supremacy. 75 The NP, well-aware that the ANC was going to become the largest party in the National Assembly, also moved to increase the rigidity of the constitution. The ANC’s ideal outcome, however, was a unitary state with majoritarianism, a position that they pushed for both because it would guarantee them the largest margins of victory and prevent racially-based representation. 76
71
Mancebo, “Parties’ Motivations...,” 47. Johan D. van der Vyver, “Constitutional Options for Post-Apartheid South Africa,” Emory Law Journal 40, no. 3 (1991): 762. 73 Mancebo, “Parties’ Motivations...,” 47. 74 van der Vyver, “Constitutional Options for Post-Apartheid South Africa,” 770. 75 Mancebo, “Parties’ Motivations for Electoral Reform under the Democratic Transition in South Africa,” 52-53. 76 van der Vyver, “Constitutional Options for Post-Apartheid South Africa,” 766. 72
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As for the role of the courts in a new South Africa, the NP followed the recommendations of the Olivier Commission to entrust ordinary courts with the enforcement of a bill of rights. The NP wanted courts that they already trusted and feared a special superior court charged with interpreting the constitution stacked with partisans of the ANC. 77 The Olivier Commission was also content with a more flexible interpretation of the bill of rights, but only for civil and political rights, akin to that in the United States.78 Nonetheless, the ANC wanted a specialized constitutional court and a Human Rights Commission to monitor legislation. The ANC, wary of the dominance of white judges in ordinary courts, believed that such courts would be poorly suited for constitutional questions due to their adversarial nature and lack of a singular source for stare decisis.79 Furthermore, the ANC also believed in the more formulaic elements of the common-law traditions of South Africa and wanted a precise bill of rights to ensure the judiciary followed a model of judicial restraint in their rulings and did not stray too far into the legislature’s power.80 The only way to reassure black South Africans that the courts were to be trusted and that the law would be applied equally would be by forming a high court with a representative body to provide one voice on the interpretation of the bill of rights. 81 In the compromise that resulted, all parties agreed on the implementation of a bill of rights and the ANC put to rest any fears it would serve as an authoritarian-majoritarian ruling party by recommending a bill of rights replete with protections for all sorts of stakeholders. 82 This new bill of rights was not like others in the West because it provided more than individual
77
Ibid, 802. Ibid, 811-819. 79 Ibid, 804. 80 Ibid, 812-13. 81 Ibid, 804. 82 Ibid, 766. 78
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and procedural protections, but went further to include socioeconomic rights as well as collective rights to ensure the new South Africa would be forced to address the inequalities caused by Apartheid.83 The ANC was also willing to implement national PR voting despite the benefits a majoritarian vote would have for its office-seeking tendencies because it was convinced that the new state needed the full political participation to gain legitimacy. 84 However, the parties remained at a standoff about the implementation of the Constitution, so instead adopted an interim in 1994, right before the first fully enfranchised election. Legitimacy was key to the survival of the county, on the eve of the critical 1994 election. Although the ANC knew it was likely to win the 1994 election, opinion polls were varied and some NP politicians even believed the ANC would take under 50% of the vote. 85 The highly inclusive and proportional representation system adopted under the interim Constitution, however, gave all sides confidence leading into both negotiations and elections to push for policy wins while also minimizing the risks taken if they were to lose. 86 The dynamics of the two-way reassurance, between the ANC and NP, allowed the NP to accept their loss of power to the ANC without fearing a run-away majoritarian party. Of course, both sides also had their own tactics of consolidating support for their positions amongst the people rather than within the Multi-Party Negotiation Process (MPNP) negotiations. The NP conducted a referendum to respond to the Conservative Party’s (a right-wing party established to oppose de Klerk’s policies) argument that the NP no longer had the popular backing to conduct negotiations. De Klerk received an overwhelming victory, which strengthened the hand of the NP by demonstrating strong support
83
Ibid, 784-5. Mancebo, “Parties’ Motivations for Electoral Reform under the Democratic Transition in South Africa,” 48. 85 Ibid, 55. 86 Ibid, 56. 84
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amongst white South Africans for its positions rather than those of the Conservative Party. The ANC encouraged mass protests and street demonstrations, but the resulting violence and massacres between police forces, ANC supporters, and the Inkatha Freedom Party also pushed the parties to find a peaceful, political resolution quickly. 87 The 1994 election had a massively expanded franchise and would set the strength of political parties for the next round of constitutional negotiating. Ultimately, the election was a success and the ANC dominated the election with 63% to the NP’s 20%, Inkatha’s 10%, and Freedom Front’s 2%. Following the election, the Government of National Unity was formed to continue the negotiations that would finalize the constitution. Because the interim constitution also allocated cabinet ministers in the unity government based on the vote proportion, the government was led by the ANC’s Mandela, but included NP leader de Klerk as one of two Deputy Presidents and various Inkatha Freedom Party and NP politicians with portfolio powers. The interim constitution that existed for the 1994 election was a compromise from the MPNP between the NP, who wanted the framework of the new government established before the elections, and the ANC who, knowing they would likely receive a large majority in a free election, argued that democratic legitimacy and a vote in the National Assembly was needed to implement a Constitution. 88 Now that the elections were completed, the final constitution was to be drafted along pre-agreed upon principles, informed by public suggestion, and then certified by the Constitutional Court.89
87
Catherine Barnes and Eldred de Klerk, “South Africa’s Multi-Party Constitutional Negotiation Process,” Accord, no. 13 (December 2002), https://rc-services-assets.s3.eu-west-1.amazonaws.com/s3fspublic/Accord%2013_5South%20Africa%27s%20multiparty%20constitutional%20negotiation%20process_2002_ENG.pdf. 88 Christina Murray, “A Constitutional Beginning: Making South Africa’s Final Constitution Essay,” University of Arkansas at Little Rock Law Review 23, no. 3 (2001): 813. 89 Murray, “A Constitutional Beginning: Making South Africa’s Final Constitution Essay,” 813. Page 112
In the final 1997 constitution, the NP, Democratic Party, and Inkatha Freedom Party did not end up forming a purely consociational government, but the ANC did agree to formalize PR as the voting process with some loosely devolved powers to the provinces. Provinces were also given greater say in the selection of representatives to the upper house of the South African Parliament. The ANC also won on the matter of the establishment of a higher Supreme Court. On the issue of the rigidity of the constitution and its amendment, the compromise was a tiered constitution, with Chapter 1 rights over the fundamental nature of the state requiring agreement of both ¾ of the National Assembly and six of the nine provinces in the National Council of Provinces to amend. 90 Chapter 1 includes the four values of South Africa: human dignity, nonracialism and non-sexism, the supremacy of the Constitution, and universal adult suffrage in a multi-party democracy. Beyond that, the Chapter also includes guarantees of citizenship, the national flag, protection of South Africa’s linguistic diversity, The rest of the constitution — except for the rules about amending the constitution — can be amended however by both a 2/3 majority in the National Assembly with the agreement of six of the nine provinces in the National Council of Provinces.91 The process was decided by a vote in the Constitutional Assembly rather than through referendum to avoid a partisan battle over specific features of the constitution that would become very divisive topics in a national referendum. 92 Issues that were divisive between members of the Assembly did not hold up the final passage of the constitution and were instead challenged in Court, moving the political dispute into the legal realm. 93
90
Constitution of the Republic of South Africa, 1996 Ibid. 92 Murray, “A Constitutional Beginning: Making South Africa’s Final Constitution Essay,” 831. 93 Ibid, 835. 91
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In addition to heavily debating the structure of government, South Africa’s political parties also included specific protections for parties in the Constitution. The Constitution explicitly mentions political parties in numerous contexts, most explicitly setting multi-party democracy as a founding value of the state. It also guarantees individuals the right to form a political party and the right to participate in the activities of a political party. Other party-specific references include allowing parties to recall their nominated permanent delegate on the National Council; adding multi-party Parliamentary oversight to restrict security services from targeting political parties; mandating the President terminate appointments if the party of the appointee requests it; and more.94 Many of these protections are a direct result of the traumas of Apartheid. For example, the restrictions on the security services to not target political parties and requirement to have a multi-party oversight committee is a direct result of the violence the South African Defense Force and intelligence had inflicted on ANC supporters and leaders both in and outside the country. 95 Such protections were also desired by the parties opposed to the ANC who likely feared the ANC turning the same weapons of state-violence against their political opponents as the NP had done for decades. Furthermore, South Africa remains committed to its multi-party system through its nomination process of its Constitutional Court justices. The President can appoint the Chief Justice and Deputy Chief Justice while consulting the Judicial Service Commission and leaders of political parties in the National Assembly. All 11 judges cannot be members of Parliament, the government, or of political parties. 96 Aside from the Chief or Deputy Chief Justice, if one of
94
South Africa, The Constitution of the Republic of South Africa. Murray, “A Constitutional Beginning: Making South Africa’s Final Constitution Essay,” 815. 96 “How Judges Are Appointed,” Constitutional Court of South Africa, accessed April 23, 2020, https://www.concourt.org.za/index.php/judges/how-judges-are-appointed. 95
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the other nine judges’ 12 to 15-year term expires, the president can only pick from a list provided by the Judicial Service Commission. This Commission includes the Chief Justice, practicing advocates representing their profession, a teacher of law, at least three members of opposition parties, and provincial delegates amongst others. The inclusion of opposition parties throughout the consultation and pre-selection process in addition to bans on those affiliated to parties from serving as justices both provide a check on any majoritarian tendencies that would significantly undermine the rule of law. Such concessions demonstrate the constitution’s intent to maintain South Africa as a multi-party democracy, a legacy of the success of the party-led negotiations in the 1990s. The enduring popularity of the ANC — and its continued control over government without serious opposition — revealed serious flaws with a system designed to empower political parties. Since 1994, South Africa has witnessed 26 years of ANC dominance and without any opposition able to crack more than 25% in elections, has become a dominant party democracy. What is interesting is that despite South Africa’s PR system that would allow parties with as low as 0.25% of the national vote to get a seat in the National Assembly, South Africa remains dominated by a single party and does not follow theoretical models of PR parliaments that split into many smaller parties.97 This is in large part due to the legacy the ANC maintained as the Party of Mandela that ended Apartheid, but also due to its constitutionally-protected power to keep its members in line by punishing defectors.98 This context also demonstrates why constitutions cannot be treated as purely theoretical exercises without considering their unique histories. By all theoretical models, the multi-ethnic and multi-lingual diversity and PR system in 97
“Political Party Representation In National Assembly,” Parliamentary Monitoring Group, May 13, 2019, https://pmg.org.za/page/political-party-representation. 98 Karen E. Ferree, “Electoral Systems in Context,” The Oxford Handbook of Electoral Systems, April 26, 2018, https://doi.org/10.1093/oxfordhb/9780190258658.013.38. Page 115
South Africa ought to result in a competitive, multi-party democracy, but instead South African politics remains dominated by the ANC because of its unique role in South African history. 99 While South Africa does not follow a pure Westminster style of legislative supremacy, the election of the president from the lower house more resembles a closed-list, proportionally representative parliamentary system. The ANC has been able to centralize immense power because of this closed-list system that allows it to choose the most loyal parliamentarians. Unfortunately, this means that the primary check on the president from the legislature, the vote of no confidence, is rarely employed unless the president falls out of grace with the party leadership which is also rare. Even at the height of his unpopularity and corruption allegations, President Zuma’s support from the ANC allowed him to survive repeated votes of no confidence from the opposition until he resigned due to public pressure. The sheer political dominance of the ANC signifies the different incentive structures that presidential, semi-presidential, or parliamentary systems provide don’t matter as much because it would win under any model. 100 However, the incentives of voting structure do matter and play a pivotal role in the party politics of South Africa. The constitutionalization of proportional representation and the 2/3 majority needed for amendment prevents the ANC from switching systems to grow its margins of victory, a testament to the foresight of the NP, DP, and IFP to protect themselves from even more ANC control. Stephen Gardbaum argues that in countries where there is a very clear dominant party, what matters more is federalism, electoral commissions, and the courts rather than the separation between legislative and executive. 101 This would appear to be the case in South Africa. The ANC’s lack of significant electoral competition and ability to crush internal dissent while also
99
Ferree, “Electoral Systems in Context.” Gardbaum, “Political Parties, Voting Systems, and the Separation of Powers†,” 250. 101 Ibid, 263. 100
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holding onto a liberal system that grants a dominant party a lot of control has sparked concerns for the future of South Africa. In dominant party democracies such as South Africa, it is in the nature of the dominant party to capture independent institutions established to check the governing party.102 Unfortunately, a number of court cases have revealed that the South African Supreme Court has rejected the notion that the ANC’s dominant party position is relevant to constitutional challenges, and until this thought process is changed, further institutional capture is to be expected.103 The longer such thinking persists, the greater the chance that even theoretically independent bureaucrats in the national government will begin to see themselves as elements of the ANC. 104 The broad party protections in the South African Constitution thus have a dual effect of protecting minority party representation but also allowing for the consolidation of immense bureaucratic power by a majority party with no significant competition. Despite the power of the ANC, the landscape is slowly shifting, and perhaps the court’s belief that the ANC dominance is not relevant may prove to be correct. Just as the Indian National Congress lost its commanding grip of the Indian political system, the ANC may face the same fate. The ANC remains at the center of South Africa’s political system, but opposing parties are beginning to grow in support. The ANC’s majority holds despite persistent allegations of corruption, and as of the 2019 national election, was still able to win 58% of the vote. However, the share has been dropping since 2004 against the primary opposition of the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF), who won 21% and 11% of the vote respectively. Economic anger at the lasting effects of Apartheid continues to drive the
102
Sujit Choudry, “‘He Had a Mandate’: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy,” Constitutional Court Review, 2010: 3, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1651332. 103 Choudry, “‘He Had a Mandate’: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy,” 5. 104 Ibid, 16. Page 117
EFF’s every growing vote share causing concern to the ANC, whose voter base is most at risk. The NP, after briefly becoming the New National Party in 1997, no longer plays an active role in South African politics, and its support has largely been absorbed by the DA who also enjoys support from mixed-race South Africans. If trends continue and the ANC loses its majority status, the real test of South Africa’s party-based provisions of its constitution can finally be realized.
7. Conclusion Political parties in South Africa played a vital role in the creation of the country’s constitution; and today, political parties enjoy strong protections in the Constitution. More so than in other countries, the explicit party-based negotiation element of the South African Constitution has directly contributed to not only the electoral system and government structure, but also to the protections and privileges extended to political parties in the Constitution. The unique nature of South Africa’s Apartheid legacy of lasting socioeconomic and political rifts continue to provide a very explicit incentive to codify these protections, but has also resulted in a distribution of party power that has challenged certain expectations. Constitutions cannot be viewed in isolation from the historic and political currents of the nations they claim to represent, and to do so would hinder any attempt to understand the nature of the South African Constitution. South Africa’s Constitution reflects the changing norms in constitutional law, while representing the necessity of viewing and understanding constitutions through the lens of history and politics, rather than a purely legal framework.
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War Crimes, the International Criminal Court, and the Difficulty of International Solutions to Ending Impunity
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War Crimes, the International Criminal Court, and the Difficulty of International Solutions to Ending Impunity
Jared Caubble Northwestern University Spring 2021
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1. Introduction War crimes are some of the gravest offenses against humanity, but war criminals across the globe continue to go unpunished, and victims of war crimes continue to be ignored. International responses to war crimes have sought to define, punish, prevent, and remedy war crimes through various organizations and institutions. However, the Rome Statute’s creation of the International Criminal Court (ICC) provides the most inclusive and extensive international response to war crimes. The ICC is the primary international institution that seeks to mitigate war crimes through its function as a judicial body and its impact on domestic obligations. The ICC is limited by their need for significant NGO orchestration to achieve greater effectiveness, being framed as only one part of a larger international approach in punishing and preventing war crimes. While the ICC has seen mixed results in its overall compliance and prosecutorial results, the effectiveness of the institution must be examined in the wider context of how the ICC and Rome Statute have reshaped international and national approaches to punishing war crimes and facilitated a broader response to preventing future war crimes. This paper will first frame the creation of the Court within the context of international efforts to define and mitigate war crimes. Then, it will detail the use of prosecution, NGO orchestration, and capacity-building by the ICC to reduce and prevent war crimes. The paper focuses on the case of the Democratic Republic of the Congo, which illustrates how the ICC can achieve effectiveness, but is bound by its structural limitations. This case study allows for a deeper analysis of the ICC in the context of a wider international solution to preventing mass atrocities. It is vital to recognize war crimes as mass atrocities because crimes of this nature to occur in the context of war threaten global peace in the long term. 2. Defining War Crimes: Previous International Attempts to Punish War Criminals
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Attempting to prevent and mitigate war crimes requires defining war crimes and ensuring state compliance in achieving institutional solutions. To achieve a more extensive international consensus on the solving issue of war crimes, states must first agree upon what a war crime is. The Geneva Conventions of 1949 make up the modern international standard for war crimes; this standard includes willful killing, torture, destruction of property, and directing attacks against civilians. 1 Codifying the boundaries of a war crime is an important first step in mitigating the overall issue, and a more inclusive definition of war crimes makes it easier for militaries to recognize the nature of their actions and for judicial bodies to punish war criminals. Before the Conventions, the concept of victor’s justice dictated punishment in war; the victor’s side of a conflict harshly punished the losers for the crimes they committed, while ignoring the crimes committed by their own soldiers. The Geneva Convention’s universal adoption obligates all states to adequately investigate and punish soldiers who breach this universal standard of conduct regardless of the conflict’s outcome; while the Geneva Conventions remain the basis of the international understanding of war crimes, the definition has expanded to include additional war crimes and protocols for how states must respond when their soldiers commit such crimes. The 1977 Additional Protocols to the Geneva Conventions, statutes of ad hoc criminal tribunals in the 1990s, and the 2002 implementation of the Rome Statute comprise international efforts to further address the horrors of war crimes by enumerating the criminal offenses. The evolution of what constitutes a war crime in international humanitarian law reflects the international community's evolving approach to the issue of war crimes and the broader issue of mass atrocities.
1
“Framework of Analysis - United Nations,” 28. United Nations , 2014.
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The United Nations (U.N.) has held broad authority and legitimacy in international law and security since its establishment in 1945, and international criminal processes in the context of war are often created by U.N. mandates. In the 1990s, the United Nations responded to conflicts in former Yugoslavia and Rwanda by creating two ad hoc criminal tribunals to punish war criminals in each respective conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) each prosecuted war criminals for the atrocities they committed in their respective conflicts, but were largely viewed to be costly and time-consuming in the broader context of punishing war criminals. 2 Additional international criminal courts have been mandated by the U.N. or regional intergovernmental organizations, such as the Special Court for Sierra Leone or Special Tribunal for Lebanon, but were limited in scope and jurisdiction. A growing desire for a permanent international institution that investigates crimes against humanity and war crimes when they arose led to the development of the Rome Statute of the International Criminal Court. 3. The Rome Statute and International Criminal Court: Prosecutorial Function, Domestic Implementation, and NGO Orchestration The establishment of the International Criminal Court through the Rome Statute represents the international community’s continued effort to prevent and punish war crimes through national and international mechanisms. Adopted in 1998 and ratified into 2002, the Rome Statute of the International Criminal Court was established to provide a permanent international tribunal that solely prosecutes genocide, crimes against humanity, war crimes, and the crime of aggression. 3 The purpose of the ICC was to more effectively address mass atrocities, including war crimes, as
2
De Silva, Nicole. “Intermediary Complexity in Regulatory Governance: The International Criminal Court’s Use of NGOs in Regulating International Crimes,” 175. The ANNALS of the American Academy of Political and Social Science, 670, no. 1 (2017): 170–88. 3 “How the Court Works.” International Criminal Court, 2020. Page 129
the center of a newly-designed international criminal justice system. 4 If there is to be a new international criminal justice system focused on the ICC, states must want to join the institution. There are 123 member states, which gives the court broad--but not universal-- jurisdiction. The independence of the Court has given many states like the United States hesitance to accede to the Rome Statute, citing sovereignty claims. The judicial function of the International Criminal Court allows for a more independent and apolitical criminal justice process in an attempt to hold fair and legitimate trials while also avoiding victor’s justice. There are four organs to the ICC: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The Presidency “conducts external relations with States, coordinates judicial matters such as assigning judges, situations and cases to divisions, and oversees the Registry's administrative work;” the Judicial Divisions comprise the judges of in each chamber of the Court that conduct the trials; the Office of the Prosecutor “conducts preliminary examinations, investigations, and prosecutions;” and the Registry “conducts non-judicial activities, such as security, interpretation, outreach, support to Defence and victims' lawyers, and more.”5 These organs work in tandem to hold legitimate and apolitical investigations and trials. After preliminary examinations and an investigation of evidence by an independent Prosecutor, independent judges conduct pre-trials and trials where the accused may be sentenced up to thirty years in prison and victims may be entitled to reparations. Both parties may appeal the verdict, and the accused must be physically present in the Court and have a member state enforce the sentence. 6 The Rome Statute employs a broad principle of individual criminal responsibility where individuals are prosecuted rather than entire militaries or groups, and the individuals tried are
4
“Implementing the Rome Statute of the International Criminal Court,” 7. Case Matrix Network. Coalition for the International Court, October 18, 2017. 5 “How the Court Works.” International Criminal Court, 2020. 6 “How the Court Works.” International Criminal Court, 2020. Page 130
principal actors “who bear the greatest responsibility for the most serious crimes;” the principle of individual criminal responsibility in this context means that sitting heads of state may be indicted and sentenced for war crimes, diminishing the concept of international impunity for the most powerful leaders in any given state.7 A central principle of the ICC is the principle of complementarity, which means that domestic courts are given priority and hold responsibility for investigating and punishing individuals, and the Court will take over when a state is unwilling or unable to do so. 8 This may be because a state ravaged by conflict lacks the judicial capacity it once had, or perhaps because the alleged war criminal is still in office and will not allow an investigation into themselves. The Statute’s principle of complementarity is meant to frame the ICC as a secondary judicial body, while the domestic courts hold the primary responsibility to investigate and prosecute war criminals. Complementarity is further affirmed in the Rome Statute by obligating states to implement corresponding domestic legislation that enhances national institutions to effectively work within the context of the ICC. This legislation would generally look like defining and criminalizing war crimes and other mass atrocities as outlined in the Rome Statute, as well as institutionalizing ICC cooperation and enhancing domestic judicial systems to prosecute war criminals. The Centre for International Law Research and Policy describes the goal of complementing domestic legislation as “to empower States to cooperate with the Court; and to enable States to exercise primary jurisdiction over the core international crimes, thereby giving meaning to complementarity.”9 Implementation is not required by a certain date, and there are a
7
“The International Criminal Court: How Nongovernmental Organizations Can Contribute To the Prosecution of War Criminals,” 8. Human Rights Watch, September 2004. 8 Ibid., 8, 9. 9 “Implementing the Rome Statute of the International Criminal Court,” 7. Case Matrix Network. Coalition for the International Court, October 18, 2017. Page 131
number of ways a state may fulfill these obligations, including a “single act” approach of simple legislation or amending the state constitution. 10 NGOs and the Court may provide technical and legal advice to states domestically implementing the Rome Statute as well. 11 The Office of the Prosecutor is responsible for “conducting multiple investigations in diverse, potentially insecure contexts,” which “demands substantial local knowledge and access, as well as considerable financial resources and personnel.” 12 The independence and capacity of the Court requires significant external support, and NGO orchestration is a significant mechanism the Court uses to fulfill its mandate. The Coalition for the International Criminal Court (CICC) can be viewed as the primary NGO that the ICC orchestrates for promoting its own advocacy, capacity-building, and accountability. The CICC functions as an umbrella organization to manage the efforts of over 2,500 NGOs involved in the ICC’s mission in some capacity; these NGOs can provide support to the ICC through their specialized knowledge in areas like legal support, victim advocacy, or local access.13 NGOs may be used as representatives of the broader international community to advocate for member states to continue supporting the ICC and the Rome Statute, and to pressure non-member states to accede to the institution. To use Sikkink and Keck’s terminology, the CICC and the vast web of NGOs that assist the ICC in their goals make up a transnational advocacy network which advocates for the mitigation and prevention of war crimes through a greater adoption of the International Criminal Court; transnational advocacy networks may subvert the expected sovereignty issues that institutions like the ICC bring by raising domestic
10
Ibid., 18. Laplante, Lisa J. “The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence,” 670. SSRN Electronic Journal, 2010. 12 De Silva, Nicole. “Intermediary Complexity in Regulatory Governance: The International Criminal Court’s Use of NGOs in Regulating International Crimes,” 171. The ANNALS of the American Academy of Political and Social Science, 670, no. 1 (2017): 170–88. 13 Ibid., 178, 179. 11
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public pressure to join the institution.14 The ICC’s orchestration of NGOs for technical, resource, and advocacy support is instrumental in the institution “investigating international crimes, developing its institutional policies, promoting states’ cooperation with the Court, and a range of other core activities.”15 The structural limitations of the ICC raise significant questions of the institution’s effectiveness. Two significant limitations are the Court’s resources and member states. According to Lisa Laplante, an expert in transitional justice, the Court has “the resources and capacity to handle only two or three trials a year” and “only enjoys jurisdiction to hear cases committed in the territory of States Parties, or those referred by the Security Council,” excluding major nonmembers like the United States and China.16 There are legitimate concerns over the effectiveness of an international criminal tribunal that cannot investigate major powers, but true effectiveness should not be solely measured by the metric of the number of states who comply. Instead, the ICC’s effectiveness should be examined by its ability to successfully punish war criminals and equip states with capacity-building tools for future conflicts, and whether state behavior has truly changed toward holding their soldiers accountable. When measuring effectiveness by these metrics, the case of the ICC’s investigation and trials in the Congo provides insight on the institution’s ability to mitigate war crimes and deter soldiers from committing war crimes. 4. The ICC’s Effectiveness in Practice: A Case Study of the Democratic Republic of the Congo
14
Keck, Margaret E., and Kathryn Sikkink. “Activists Beyond Borders: Advocacy Networks in International Politics,” 36. Cornell University Press, 1998. 15 De Silva, Nicole. “Intermediary Complexity in Regulatory Governance: The International Criminal Court’s Use of NGOs in Regulating International Crimes,” 171. The ANNALS of the American Academy of Political and Social Science, 670, no. 1 (2017): 170–88. 16 Laplante, Lisa J. “The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence,” 636. SSRN Electronic Journal, 2010. Page 133
The ICC’s investigation in the Democratic Republic of the Congo (DRC) is a useful case study of the institution’s effectiveness in investigating atrocities, prosecuting war crimes, and increasing domestic judicial capacities. This was the first investigation and criminal trial conducted by the Court, so the process and results can be used to examine how the actors in the Court saw their role in punishing war crimes and how to present the institution as a positive use of resources. The DRC requested the ICC investigate alleged war crimes in its territory in 2004, the scope of the investigation focusing on conflict in the Ituri and Kivus regions since 2002; the alleged war crimes that occurred include murder, rape, torture, and child conscription.17 The ICC has investigated Congolese leaders outside of the investigation of the DRC, such as Jean-Pierre Bemba Gombo for crimes that occurred in the Central African Republic; this case study focuses on the ICC investigation of alleged crimes occurring within the territory of the DRC. When initiating the investigation, the ICC, DRC, and UN established their own relationship agreements that outlined and formalized the expected cooperation between the parties. 18 The investigation targeted several militia groups from different conflicts in the state. These groups included the Patriotic Forces for the Liberation of Congo (FPLC), National Integrationist Front (FNI), and the Patriotic Resistance Force in Ituri (FRPI), who were alleged to have committed war crimes and crimes against humanity for years against the Congolese people. As the ICC focuses its mandate on the individuals responsible for committing and ordering these crimes at the highest levels, the commanders and leaders of these groups were the subject of prosecution. The first case in this investigation tried Thomas Lubanga Dyilo for conscripting child soldiers from 2002 to 2003; Lubanga was convicted in 2012 and sentenced to 14 years in prison,
17
“Situation in the The Democratic Republic of the Congo.” The International Criminal Court, 2020. Tunamsifu, Shirambere Philippe. “Twelve Years of Judicial Cooperation Between the Democratic Republic of the Congo and the International Criminal Court: Have Expectations Been Met?” 109, 110. African Human Rights Law Journal 19, no. 1 (2019). 18
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the first sentencing of the ICC.19 Germain Katanga and Mathieu Ngudjolo Chui were jointly charged with several counts of war crimes as militia leaders that planned and ordered a widespread massacre in the village of Bogoro; Katanga was convicted and sentenced to 12 years in prison, while Chui was acquitted on all counts.20 Bosco Ntaganda was Deputy Chief of Staff of the FPLC, alleged to have conscripted child soldiers from 2002 to 2003 and committed murder, rape, and pillaging in 2012. He was convicted and sentenced to 30 years in prison beginning in 2019. 21 Callixte Mbarushimana was the executive secretary of a Rwandan rebel group operating in the DRC and was accused of war crimes such as murder, torture, rape, and destruction of property, but was released due to insufficient evidence in 2011.22 Sylvestre Mudacumura was alleged to be a military leader of a Rwandan rebel group in the Congo, accused of war crimes such as murder, mutilation, and torture; a warrant was issued for his arrest in 2012, but he was killed in 2019 while evading capture.23 Three convictions over 16 years (not to mention the millions of dollars spent) may instinctively lead to a reaction that that Court is ineffective and the wrong approach to mitigating war crimes. However, the trial results must be seen in the wider context of the ICC and the DRC, both through the greater concerns and greater successes that can be drawn from the case. There is some concern over the selectiveness of the ICC’s prosecutions, as the scope of fieldwork has acquitted some individuals over others, and there has arguably been little investigation into “former Congolese warlords or officials who are now integrated into and promoted within public institutions.”24 If criminals are acquitted because the prosecution could not
19
“Situation in the The Democratic Republic of the Congo.” The International Criminal Court, 2020. Ibid. 21 Ibid. 22 Ibid. 23 Ibid. 24 Tunamsifu, Shirambere Philippe. “Twelve Years of Judicial Cooperation Between the Democratic Republic of the Congo and the International Criminal Court: Have Expectations Been Met?” 120. African Human Rights Law Journal 19, no. 1 (2019). 20
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gather enough evidence, was the Office of the Prosecutor too weak to find evidence or was the individual simply not a war criminal? Mathieu Ngudjolo Chui was acquitted due to insufficient evidence, in large part because the Office of the Prosecutor’s relevant evidence in Bogoro was still active with militia groups and the field investigation did not have the support or capacity to go into the area.25 The limited capacity of the field investigators in the Office of the Prosecutor shows a greater need for on-the-ground resources for the Court if they are to conduct legitimate investigations. This is where NGOs may be necessary as intermediaries to provide the Court local access. The length and scope of criminal trials in the ICC may draw critiques. The investigation in the DRC began in 2004, and the first verdict was given to Lubanga in 2012. While criminal trials generally take extended periods of time to conclude, eight years for a well-documented war criminal to be given a ruling implies that theProsecutor may have been ineffective. Another question of concern is the scope of the sentencing against the Congolese military leaders. Lubanga was accused of committingwar crimes beyond child conscription, including murder, torture, and rape.26 By limiting the sentencing of Lubanga to a narrow set of crimes related to child soldiers, the Court faces questions surrounding its actual commitment to punishing war criminals for all of their alleged crimes. These investigations must be placed in a wider political and technical context in order to gain a clearer understanding of how these potential concerns are addressed by the Court. This is the Court’s first chance to show the international community its legitimacy, and any misstep or failure could undermine the process and the future of the institution. If the Court cannot successfully prosecute a war criminal as egregious and infamous as Lubanga, why would states
25
Ibid., 116. Coleman, Justin. “Showing Its Teeth: The International Criminal Court Takes On Child Conscription in the Congo, But Is Its Bark Worse Than Its Bite?” 781. Penn State International Law Review 26, no. 3 (January 1, 2008): 765–85. 26
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trust (and fund) them for future investigations? By beginning with a narrow scope and tedious investigation, the Prosecutor increased the chances of a successful first case. This is a doubleedged sword, as concerns over the Court’s commitment to punishing all war crimes and not just a select few were arguably not answered. From a technical perspective, the fact that the DRC was the ICC’s first case means that the Court had a limited capacity and no previous judicial history to refer to. The ICC was essentially starting from scratch with its case in the Congo, and it had to develop its investigative and prosecutorial functions while attempting to prove to the world it was not a waste of money. The ICC is more effective when national courts adopt the standards of international criminal law found in the Rome Statute; as seen through the case study of the Congo, the ICC has greater long-term effectiveness when national courts fulfill their obligations to the Rome Statute. The Congress of the Democratic Republic of the Congo fully implemented the Rome Statute into the DRC’s government in 2015 and 2016 through four pieces of legislation; this legislation amended the Military Criminal Code, Military Criminal Procedure Code, Criminal Code, and Criminal Procedure Code to meet the standards of the Rome Statute, established civilian courts to address these crimes, and adopted “a vertical model of cooperation between the Prosecutor General of the Republic of DRC and the ICC, in particular the Office of the Prosecutor.”27 By fulfilling their obligations of implementation, the DRC has enhanced both their own capacity to mitigate war crimes and the capacity of the ICC when investigating in the state. The International Criminal Court’s adjacent Trust Fund for Victims was first employed through the Court’s rulings involving the DRC. The rulings ordered collective reparations to be given through the Trust Fund to several provinces in the Congo; these reparations focused building
27
“Democratic Republic of the Congo (DRC) - Campaign for the Rome Statute of the ICC.” Parliamentarians for Global Action, 2020. Page 137
mental health services for the victims of war crimes. 28 Victims are often out of the spotlight when discussing international responses to war crimes, and a permanent body responsible for providing reparations has the potential to bring more justice to the victims. Independent NGOs have worked with the Court and separate from the Court on this issue. While many NGOs work in many capacities and scales of operation, one example in this case is TRIAL International’s work in the eastern DRC. TRIAL International’s work in the DRC involves capacity-building within the Congolese legal system, particularly by training local actors, including “lawyers, magistrates, investigators, grassroot NGOs, and individual human rights defenders;” the work of this NGO builds an interconnected network of local actors committed to international norms of criminal justice that they may use in domestic courts or in the greater transnational advocacy network. 29 This complements the work of the ICC in its domestication of the Rome Statute’s system of international criminal justice, stepping in when the Court may not have the full resource toolkit to do so. A simple exercise in determining the effectiveness of the ICC in mitigating war crimes in the DRC is to imagine the counterfactual of a world without the institution. The DRC was “ailing in the aftermath of the various internationalised armed conflicts in which widespread crimes were committed” and lacked the domestic judicial capacity to follow their duty to investigate and punish war criminals on their own.30 Without the Rome Statute or International Criminal Court, the Congo would either employ a failing national court or hope for a special international or regional court to be developed to aid the state.31 With a permanent international criminal tribunal to turn to, the
28
“Democratic Republic of the Congo.” The Trust Fund for Victims, 2020. “Democratic Republic of the Congo.” TRIAL International, June 23, 2020. 30 Tunamsifu, Shirambere Philippe. “Twelve Years of Judicial Cooperation Between the Democratic Republic of the Congo and the International Criminal Court: Have Expectations Been Met?” 123. African Human Rights Law Journal 19, no. 1 (2019). 31 Ibid., 106 29
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DRC could request help from the international community in addressing the atrocities committed in the region. While critiques of the Court’s limited number of convictions are valid, the fact is war criminals like Thomas Lubanga and Germain Katanga are in prison. Field investigations aided by NGO intermediaries have embedded the presence and mission of the Rome Statute into local Congolese networks in hope of more effective and extensive investigations in the future. The unique mechanisms of the Rome Statute beyond the prosecution of war criminals provide more effective remedies to victims of war criminals through the Trust Fund for Victims and further enhancement of Congolese judicial capability through the domestic implementation of the Rome Statute. The issue of war crimes does not disappear on its own through the prosecution of a few Congolese warlords and generals. Nevertheless, the International Criminal Court could play a role in preventing war crimes by acting as a deterrent. 5. Greater Deterrence Through the ICC The ICC has the potential to serve not only as an institution that punishes war crimes, but also as an institution that prevents them. In order for the International Criminal Court to be an institution that can prevent war crimes, the prosecutors must first successfully prosecute a number of war criminals so that potential war criminals have a legitimate fear of ICC or domestic prosecution. Prosecutorial deterrence, or when “potential perpetrators reduce or avoid lawbreaking for fear of being tried and officially punished,” should be analyzed as an ICC strategy. 32 Jo and Simmons argue that the ICC can effectively demonstrate prosecutorial deterrence “when the ICC signals its will and capacity to prosecute” actors sensitive to social pressures. 33 Government leaders and actors connected to public institutions are most likely to be sensitive to
32
Jo, Hyeran, and Beth A. Simmons. “Can the International Criminal Court Deter Atrocity?” 444. Cambridge University Press, July 8, 2016. 33 Ibid., 446. Page 139
social pressures, while militia or rebel groups may not respond to pressure from international actors at the same rate. The ability to successfully implement domestic legislation that complements the Rome Statute can increase the chances of prosecutorial deterrence, as an increase in legitimate domestic investigations and successful prosecutions can deter future war criminals. 34 Returning to the case of the DRC, a Congolese rebel group expressed its commitment to following international humanitarian law and the conduct of war after the conviction of Lubanga. 35 This is evidence that the ICC plays some role on the ground in preventing future war crimes, especially if military groups are actively responding to the institution’s investigations and prosecutions. Some scholars, like Antonio Cassese, argue that local trials provide greater deterrence, and the ICC’s trials being conducted solely in the Hague may diminish the prospect of full deterrence. 36 However, Laplante argues that the ICC has demonstrated its ability to “exert its sphere of influence” in international criminal law through resource sharing and outreach programs that provide domestic courts the legal tools necessary to punish and prevent war crimes. 37 The role of the Rome Statute and the ICC in shaping international norms toward a broader understanding of war crimes and criminal justice must be recognized. Constructivist theory helps explain how the ICC can use norm-shaping to achieve greater effectiveness. According to Finnemore, “state policies and structures are influenced by intersubjective systemic factors, specifically by norms promulgated within the international system;” in Finnemore’s case domestic
34
Ibid., 448. Ibid., 453. 36 Coleman, Justin. “Showing Its Teeth: The International Criminal Court Takes On Child Conscription in the Congo, But Is Its Bark Worse Than Its Bite?” 782. Penn State International Law Review 26, no. 3 (January 1, 2008): 765–85. 37 Laplante, Lisa J. “The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence,” 673, 674.. SSRN Electronic Journal, 2010. 35
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science policies are shaped through UNESCO’s norm diffusion, and in this case, norms of criminal justice are diffused through the ICC.38 With greater exposure to legitimate criminal justice processes in the international system, states are more likely to shape their own criminal justice institutions to match what is the international norm. Though the Rome Statute obligates a state to implement complementary legislation, the Court’s involvement in helping a state punish their own war criminals may cause local actors to reevaluate their state’s approach to criminal justice and further address war crimes beyond the Rome Statute’s minimum requirement. For instance, the ICC’s focus on child conscription in the Congo served the greater purpose of spreading the international norm against the use of child soldiers to the Congo and other African states. Coleman claims that Lubanga’s sole charges of child conscription communicated to the Congo and other states the severity of child conscription as a crime, and the focus on these charges may diffuse to the Congolese government which can target those who use child soldiers but are traditionally unpunished.39 Norm diffusion and advocacy networks go beyond transforming the ICC member states’ approaches to war crimes. Atempts to frame the ICC within the interests of states has resulted in reluctance to accede to the Rome Statute. Transnational advocacy networks “try to transform state understandings of their national interests,'' exemplified here through the local work of the Coalition for the International Criminal Court and its countless partner NGOs working on behalf of the ICC.40 International organizations and institutions use orchestration to manage states by enlisting
38
Finnemore, Martha. “International Organizations as Teachers of Norms: the United Nations Educational, Scientific, and Cultural Organization and Science Policy,” 593. International Organization 47, no. 4 (1993): 565– 97. 39 Coleman, Justin. “Showing Its Teeth: The International Criminal Court Takes On Child Conscription in the Congo, But Is Its Bark Worse Than Its Bite?” 773. Penn State International Law Review 26, no. 3 (January 1, 2008): 765–85. 40 Keck, Margaret E., and Kathryn Sikkink. “Activists Beyond Borders: Advocacy Networks in International Politics,” 203. Cornell University Press, 1998. Page 141
intermediaries to affect state behavior outside of formal institutional pressure. 41 The International Criminal Court is a body that has sentenced war criminals to prison, provided reparations to victims of war crimes, and equipped domestic courts with necessary capacity-building legal codes and tools; the limitations previously discussed suggest
that the Court is only one part of the
international solution to mitigating and preventing war crimes. For greater overall effectiveness, other institutions must be recognized and supported for their role in solving this issue. 6. Beyond the ICC: Other Institutions that Mitigate and Prevent War Crimes While this paper focuses on the International Criminal Court and its efforts to successfully prosecute war criminals and end impunity for war crimes, the institution must be placed within the wider context of international civil society’s attempts to mitigate and prevent war crimes. The nature of war and war crimes are often context-based and localized, and various institutions are specialized for targeting specific aspects of the issue. While the International Criminal Court and the Rome Statute represent the effort of the international community in the twenty-first century to prosecute war criminals, international and regional actors have used institutions to focus on preventing the causes of war crimes and promoting greater military training on international humanitarian law. War crimes are often situated within the broader context of mass atrocities, which often is a broad definition that includes crimes against humanity, war crimes, and genocide. The United Nations has an established Office on Genocide Prevention and the Responsibility to Protect to address mass atrocities occurring throughout the globe, such as genocide and war crimes. This Office attempts to “promote greater awareness of the causes and processes of atrocity crimes and build capacities for prevention, early warning, and the assessment and management of
41
Tallberg, Jonas. “Orchestrating Enforcement: International Organizations Mobilizing Compliance Constituencies,” 187. International Organizations as Orchestrators, 2015, 166–88. Page 142
information” relating to mass atrocities through seminars and setting international agendas on the subject; the Office also provides technical assistance to states and regional actors seeking support in enhancing their capacity to monitor and address atrocities. 42 In a framework of analysis report, the Office highlighted several indicators of communities at risk for war crimes, including “mistrust between opposing parties based on past or present breaches of commitments or agreements” and “adoption of measures that severely curtail the rights of those protected under international humanitarian law.”43 International and regional security alliances are instrumental in mitigating and preventing war crimes through their training exercises and operational support. INTERPOL has provided states with fugitive tracking tools and investigative capabilities relating to fieldwork and collecting evidence in war crimes cases. 44 The International Committee of the Red Cross and the Government of Switzerland have developed a transnational initiative that seeks to provide militaries with the resources to effectively train soldiers on international humanitarian law. 45 Voluntary agreements and institutions rely on state agreement, which is not always a given and may require continued pressure from NGOs, external institutions, and other states. This pressure is required for states like the United States of America that are reluctant to join international institutions like the International Criminal Court. The elephant in the room on the subject of the International Criminal Court is the United States. While the United States has gone from a reluctance to join the International Criminal Court to outright sanctioning individuals in the Office of the Prosecutor, the government has still taken some approaches toward preventing war crimes and other mass atrocities abroad through national
42
“Enhancing Capacity.” United Nations Office on Genocide Prevention and the Responsibility to Protect. United Nations, 2020. 43 “Framework of Analysis - United Nations,” 22, 23. United Nations , 2014. 44 “War Crimes.” INTERPOL, 2020. 45 Bates, Elizabeth Stubbins. “Towards Effective Military Training in International Humanitarian Law,” 811, 812. International Review of the Red Cross 96, no. 895-896 (2014): 795–816. Page 143
action. The Obama administration made an Atrocities Prevention Board to institutionalize an interagency response to global atrocities (including most war crimes), with President Obama stating that “preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.”46
The United States Agency for International
Development has used reports from national and international actors to argue that the most fundamental ways to prevent mass atrocities are by suppressing the outbreak of armed conflict, increasing the capacity of domestic institutions, strengthening civil society, and promoting human rights and democracy. 47 This echoes the Rome Statute’s mission of strengthening domestic institutions and civil society to further prevent and punish war crimes, but through a national mechanism. The United States may use their own economic and political power to target individual cases of war crimes through policies like bilateral sanctions and agreements against governments that harbor war criminals; these at times go against the ICC’s own attempts to indict and arrest war criminals by instituting non-surrender agreements with ICC member states.48 While the United States and International Criminal Court are not partners in practice, they share the same broad goal of ending mass atrocities and war crimes and employ different mechanisms to do so. 7. Conclusions Effective mitigation and prevention of war crimes require a multifaceted approach by the international community. The International Criminal Court is just one institution designed to address the issue, and its past results point to greater effectiveness. Through increasing technical and prosecutorial capabilities, domestic implementation, and instrumental approaches to NGO
46
“Field Guide: Helping Prevent Mass Atrocities,” 9. U.S. Agency for International Development, April 16, 2019. Ibid., 21. 48 De Silva, Nicole. “Intermediary Complexity in Regulatory Governance: The International Criminal Court’s Use of NGOs in Regulating International Crimes,” 177. The ANNALS of the American Academy of Political and Social Science, 670, no. 1 (2017): 170–88. 47
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orchestration and reparations, the ICC can serve as the primary institution that mitigates the effects of war crimes through a variety of mechanisms. The limitations of the ICC’s power and jurisdiction, combined with legitimacy concerns stemming from non-members like the United States, add resistance to the ICC’s efforts to play a larger role in the future. The case of the investigations, trials, and results of ICC involvement in the Democratic Republic of the Congo points to strides made toward ending international impunity for war crimes. War criminals are now imprisoned, albeit a limited number of them. Instead of framing this as a failure of the ICC and the international community, international actors and policymakers should view it as a step in the right direction. In order for an international criminal justice system to start from the ground up and successfully prosecute war criminals who evaded domestic prosecution for years, it takes time, resources, and airtight cases to construct legitimacy and authority. In order for this uphill battle to be short-term and not a part of every case, the capacity of the ICC to investigate and prosecute war criminals across the globe must be significantly improved through an increase in resources, membership, and orchestration. Until the ICC can demonstrably do this in an independent and sustainable manner, NGOs must continue to support the institution through their advocacy and operational work. If the Court continues in the direction of limited and selective cases with clear notions of impunity being sent into regions of conflict, it may be time to rethink the role of the ICC. The International Criminal Court is one of many national and international institutions involved in the effort to properly punish war criminals and prevent future war crimes. Through the Rome Statute’s codification of an inclusive definition of war crimes, domestic obligations to strengthen domestic military and criminal court capacity, and the independence of the Office of the Prosecutor, the International Criminal Court has the potential to shape international norms and
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effectively prosecute the worst offenders of international humanitarian law. The aforementioned limitations of the Court diminish the prospects of the ICC reaching its full potential as an international institution, although other institutions and approaches to addressing war crimes can fill the gaps. The Court may be the best institution to prosecute war criminals that have evaded domestic conviction, but other actors may be better served to effectively address military training, victim reparations, and overall deterrence. When viewing the issue of war crimes from a broad level of analysis, it is important to see the International Criminal Court as one piece of a larger puzzle that requires domestic, transnational, and international actors to become involved.
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Finnemore, Martha. “International Organizations as Teachers of Norms: the United Nations Educational, Scientific, and Cultural Organization and Science Policy.” International Organization 47, no. 4 (1993): 565–97. https://doi.org/10.1017/s0020818300028101. “Framework of Analysis - United Nations.” United Nations , 2014. https://www.un.org/en/genocideprevention/documents/aboutus/Doc.3_Framework%20of%20Analysis%20for%20Atrocity%20Crimes_EN.pdf. “How the Court Works.” International Criminal Court, 2020. https://www.icc-cpi.int/about/howthe-court-works. “Implementing the Rome Statute of the International Criminal Court.” Case Matrix Network. Coalition for the International Court, October 18, 2017. http://www.coalitionfortheicc.org/document/implementing-rome-statute-internationalcriminal-court. Jo, Hyeran, and Beth A. Simmons. “Can the International Criminal Court Deter Atrocity?” Cambridge University Press, July 8, 2016. https://www.cambridge.org/core/journals/international-organization/article/can-theinternational-criminal-court-deter-atrocity/0A64E6F29E839427A0A5398EBD2273CB. Keck, Margaret E., and Kathryn Sikkink. “Activists Beyond Borders: Advocacy Networks in International Politics.” Cornell University Press, 1998. https://doi.org/10.7591/9780801471292. Laplante, Lisa J. “The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence.” SSRN Electronic Journal, 2010. https://doi.org/10.2139/ssrn.2127894. “Situation in the The Democratic Republic of the Congo.” The International Criminal Court, 2020. https://www.icc-cpi.int/drc/. Tallberg, Jonas. “Orchestrating Enforcement: International Organizations Mobilizing Compliance Constituencies.” International Organizations as Orchestrators, 2015, 166– 88. https://doi.org/10.1017/cbo9781139979696.009. Page 148
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FACULTY ADVISORY BOARD The Northwestern Undergraduate Law Journal is honored to have the following professors supporting this publication. Professor Andrew M. Koppelman John Paul Stevens Professor of Law Northwestern Pritzker School of Law Professor Joe Mathewson Professor at the Medill School of Journalism, Media, Integrated Marketing Communications Northwestern University ACKNOWLEDGMENTS The Northwestern Undergraduate Law Journal would like to thank the following people for their contributions for the journal and to our organization: Adam Sopko, Alexia Gordon, Connor Akiyama, Emily Ross, Jared Caubble, Joseph Lattal, Lynn Page, Peter Civetta, Professor Andrew Koppelman, Professor Galya Ben-Arieh, Professor Joe Mathewson, Xiaoyu Huang, and Zach Roston