Regulating the Courts: The Constitutionality
“An AI system used in the courts is leading to widespread injustice and discrimination. As a solution, our plan is for Congress to ban said AI.”
Sounds great. But can it actually be done? That’s what we’re going to explore in this blog post.
This year’s team policy metagame is being flooded by cases dealing with the use of artificial intelligence in the courts (Pretrial Risk Assessments, Facial Recognition Technology, Exculpatory Information, etc). But there’s just one issue, the constitution heavily limits congressional involvement in the courts, especially state courts. The extent to which the constitution limits such involvement has been a focal point of the federalism debates of our time. Which, fortunately for us, means there’s lots of scholarly literature available on the topic. Before we get into why these cases may be unconstitutional, we should first understand what they’re doing.
Risk assessment and FRT alike seek to regulate all US courts via the agency of congress. Let’s break that down a little bit more. There are tiers in our court system, at the top, we have the US supreme court, which trickles down to the courts of appeals, and finally federal district courts. There are also State Supreme courts with local or county courts as well. Congress regulating these via legislation could be problematic in two ways: 1) it could undermine the separation of powers and independence of the judicial branch that is revered nearly as sacred in our founding documents. Or 2) it could undermine the 10th amendment that preserves our system of federalism in which states reserve some degree of sovereignty. Let’s see how these cases cross those lines...
In the supreme court decision of U.S. v. Alvarez, the high court stated
“The U.S. Constitution establishes three separate but equal branches of government: the legislative branch (makes the law), the executive branch (enforces the law), and the judicial branch (interprets the law). The Framers structured the government in this way to prevent one branch of government from becoming too powerful, and to create a system of checks and balances”[[1]].
So how does this principle relate to the issue at hand and how have courts interpreted it to apply?
According to the former clerk for the late Justice Anthony Scalia and professor at Notre Dame law school, Anthony Bellia writing for the Yale Law Journal:
“It is well-established that state courts must enforce federal rights of action if their jurisdiction is adequate and appropriate. State courts also must enforce federal procedural rules that are part and parcel of an adjudicated federal claim. Federal regulation of the procedures by which state courts enforce not federal but state rights of action raises distinct constitutional problems”[[2]].
What this means is that state courts have to enforce federal laws, and to some extent they must do so according to federal rules. But the second part states federal courts have no right interfering in how state courts enforce state law. Therefore a policy that applies to all cases in all courts (Risk assessment and FRT) would stray into this constitutional redzone. Bellia breaks down the precedent for this stance later in the article by citing to landmark cases, New York and Printz:
“In New York, the Court addressed whether Congress could require the states either to enact legislation providing for the disposal of radioactive waste generated within their borders or to take title to and possession of such waste. The Court held that Congress could not do so on the ground that the "Federal Government may not compel the States to enact or administer a federal regulatory program. ' The Constitution, the Court reasoned, "confers upon Congress the power to regulate individuals, not States."' The Commerce Clause, in particular, under which the statute had been passed, "authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce." The Court applied the same principle in Printz. There, the Court addressed whether Congress could require local law enforcement officers to conduct background checks on prospective handgun purchasers. The Court held that it could not do so, on the ground that "Congress cannot compel the States to enact or enforce a federal regulatory program."' Under the system of "dual sovereignty ' established in the Constitution, the Court explained, the state and federal governments "exercise concurrent authority over the people." As New York had held, Congress can regulate the people, but not the states' regulation of the people” [2].
Given all this precedent, where do we draw the line for congressional involvement in courts? Bellia sums up his argument well later in his journal article:
“Congress's authority to regulate state courts may thus be summarized as follows: Congress may require state courts to enforce federal claims if they are competent to do so; Congress may require state courts to enforce federal procedural rules that are "part and parcel" of a federal right of action; and Congress may, by implication, require state courts to follow federal procedural rules when application of a state procedural rule would unnecessarily burden a federal right. By their terms, these rules apply only when state courts adjudicate federally created rights” [2].
Hopefully the information given in this post so far has helped you understand the legal environment of the topic and has given you a clue into where the problems with these cases lie. But given this information, how do we present a compelling argument to a judge?
I think this could be run in a few ways. A) As a structural inherency point to say such a law would be struck down because it’s unconstitutional. B) As a disadvantage diving into the harms of such a breach of the constitution and the dangerous precedent it would set. Or C) Run both in a double bind, either a court will strike down their plan and nothing will happen, or it will go through, and it will undermine our system of checks and balances. If run persuasively, this can be a round winning argument on any case attempting to regulate the use of AI in the courts. If you have any questions about any of the information in this post, feel free to reach out to me, I’m happy to discuss.
[1] “Separation of Powers in Action - U.S. v. Alvarez”
[2] “Federal Regulation of State Court Procedures”
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1175&context=law_faculty_scholarship