INDEPENDENT INSURANCE AGENTS OF AMERICA, INC., еt al., Appellants,
v.
Robert L. CLARKE, Comptroller of the Currency, et al.
NATIONAL ASSOCIATION OF LIFE UNDERWRITERS, et al., Appellants,
v.
Robert L. CLARKE, et al.
Nos. 90-5209, 90-5214.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 1, 1991.
Decided Feb. 7, 1992.
As Amended Feb. 25, 1992.
[
Jonathan B. Sallet, for appellants. Ann M. Kappler, Washington, D.C., also entered an appearance, for appellants.
Theodore C. Hirt, Atty., U.S. Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Jay B. Stephens, U.S. Atty., Anthony J. Steinmeyer, Atty., Dept. of Justice, and Lester N. Scall, Atty., Office of Comptroller of Currency, Washington, D.C., were on brief, for appellee Clarke.
Kenneth L. Bachman, Jr., Giovanni P. Prezioso, and Marc C. Krantz, Washington, D.C., were on brief, for appellee U.S. Nat. Bank of Oregon.
John J. Gill and Michael F. Crotty, Washington, D.C., were on brief, for amici curiae American Bankers Ass'n and Oregon Bankers Ass'n, urging affirmance.
Before SILBERMAN, BUCKLEY and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
Dissenting opinion filed by Circuit Judge SILBERMAN.
BUCKLEY, Circuit Judge:
Appellants challenge a ruling by the Comptroller of the Currency that would permit any national bank, or its branch, located in a community of not more than five thousand inhabitants to sell insuranсe to customers outside that community. The Comptroller based his ruling on section 92 of the National Bank Act. As we find sua sponte that that section has been repealed, and as the Comptroller cites no alternative authority for his ruling, we reverse.
I. BACKGROUND
Section 92 was enacted in 1916 as an amendment to section 5202 of the Revised Statutes of the United States. It provided, in relevant part, that any national bank
located and doing business in any place the population of which does not exceed five thousand inhabitants ... may, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any ... insurance company authorized by the authorities of the State in which said bank is located to do business in said State.
39 Stat. 750, 753 (1916). This provision was codified as section 92 of Title 12 of the United States Code. Although section 92 was omitted from section 5202 when the latter was revised and reenacted in 1918, and although the section has been omitted from recent editions of the United States Code, the Comptroller has continued to treat it as valid. See, e.g., 12 C.F.R. § 7.7100 (1991).
The appellant trade associations, which represent insurance agents and underwriters, challenge a ruling by the Comptroller that is based on section 92. The ruling holds that under that statute, "a national bank or its branch which is located in a place of 5,000 or under population may sell insurance to existing and potential customers located anywhere." Letter from Judith A. Walter, Senior Deputy Comptroller for National Operations, to Mr. T. Dalrymple (Aug. 18, 1986), reprinted in Joint Appendix at 65. Appellants assert that section 92 places a geographical limit on such sales; and they brought this action to have the ruling set aside under the APA as "arbitrary, capricious, an abuse of discretion, or othеrwise not in accordance with law," 5 U.S.C. § 706(2)(A) (1988), as a national bank is not permitted to engage in any activity that is not specifically authorized by law. See 12 U.S.C. § 24 (1988).
The district court granted the Comptroller's motion for summary judgment based on its finding that his interpretation of section 92 was "rational and consistent with the statute." National Ass'n of Life Underwriters v. Clarke,
After the parties had submitted their appellate briefs, we asked them to address two questions: First, should this court decide the validity of section 92 in the absenсe of a challenge to that validity by any of the parties? Second, was section 92 in fact valid? In response to the first question, appellants took the position that this court was required to consider the validity of section 92 as it "would be without constitutional authority or power to render [a decision on the merits] if Section 92 [did] not exist." Supplemental Brief for Appellants at 3. The Comptroller, on the other hand, argued that it would be inappropriate for the court to address the issue: It had not been raised by the parties; and, in any event, "the legal issue identified by the Court [did] not go to its jurisdiction, but rather to the merits of plaintiffs' claims." Supplemental Brief for Federal Appellees at 5.
In responding to our second question, the parties agreed that section 92 remains in effect. They argue that Congress did not intend to repeal section 92. Its technical deletion, they claim, was the result of misplaced quotation marks and therefore should be ignored; moreover, as section 92 was unrelated to the purposes of the 1918 revision of section 5202, an intention to repeal it should not be imputed to Congress. Finally, the parties claim that subsequent action by Congress, the Comptroller, and the federal courts (including the Supreme Court) confirms that section 92 remains in effect.
For the reasons set forth below, we conclude that we must decide whether section 92 continues to have the force of law; and because we find it does not, we reverse.
II. DISCUSSION
A. Should the court decide section 92's validity?
The role of the judicial branch is a limited one.
The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.
Carducci v. Regan,
We believe that this is one of those occasions where a court may properly dispose of a case on a basis not advanced by the parties. Here, the legal question we are asked to decide is the geographical reach of section 92. We are on notice, [
B. Is section 92 valid?
Section 204(a) of Title 1 of the United States Code states:
The matter set forth in the edition of the Code of Laws of the United States current at any time shall ... establish prima facie the laws of the United States, general and permanent in their nature.
Therefore, in order to determine whether section 92 is valid, we first consult the Code. On inspecting 12 U.S.C. § 92 (1988), we find the following:
§ 92. Omitted
Codification
The provisions of this section, which authorized national banking associations in any place where the population did not exceed 5,000 to act as an insurance agent or real estate broker, were added to R.S. § 5202 by act Sept. 7, 1916, were omitted in the amendment of R.S. § 5202 by act Apr. 5, 1918, and therefore this section was omitted from the Code. Pub.L. 97-320, Oct. 15, 1982, purported to amend the Act of September 7, 1916 by deleting [two provisions]. R.S. § 5202, as amended, was set out as section 82 of this title prior to repeal by Pub.L. 97-320.
12 U.S.C. § 92 (1988) (citations omitted). In sum, the codifiers treat section 92 as having been repealed in 1918.
Because we must look to the Code for prima facie evidence of federal law, its omission creates a presumption that section 92 does not exist. Still, other evidence may rebut that presumption; " 'the very meaning of "prima facie" is that the Code cannot prevail over the Statutes at Large when the two are inconsistent.' " United States v. Welden,
1. The Statutes at Large
The critical statutes are section 13 of the Federal Reserve Act of 1913, Pub.L. No. 63-43, § 13, 38 Stat. 251, 263-64 (1913) ("1913 Act"), the 1916 amendments to that Act, Pub.L. No. 64-270, 39 Stat. 752, 753 (1916) ("1916 amendments"), and section 20 of the War Finance Corporation Act of 1918, Pub.L. No. 65-121, § 20, 40 Stat. 506, 512 (1918) ("1918 Act"). The relevant provisions of these statutes will be found in appendices A, B, and C to this opinion.
As will be seen in Appendix A, section 5202 of the Revised Statutes of the United States, as amended by the 1913 Act, is to be found in the text of section 13 of that Act. The question raised by the parties is whether Congress, in 1916, intended to make the new section 92 a part of section 5202. The critical language in the 1916 amendments reads as follows:
Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: "No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding....
* * * * * *
"That in addition to the powers now vested by law in national banking associations ... located and doing business in any place the population of which does not exceed five thousand inhabitants ... may, under such rules and regulations as may be prescribеd by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company ... by soliciting and selling insurance and collecting premiums on policies issued by such company.... And provided further, That the bank shall not guarantee [
"Any member bank may accept drafts or bills of exchange drawn upon it.... Provided further, That no member bank shall accept such drafts or bills in an amount exceeding at any time the aggregate of one-half of its paid-up and unimpaired capital and surplus."
The middle paragraph above would later be codified as 12 U.S.C. § 92. Thus, on its face, the 1916 amendments had the effect of placing section 92 within section 5202 of the Revised Statutes.
Two years later, Congress enacted the 1918 Act. Section 20 of that Act reads in part as follows:
Sec. 20. Section fifty-two hundred and two оf the Revised Statutes of the United States is hereby amended so as to read as follows:
"Sec. 5202. No national banking association shall at any time ... except on account of demands of the nature following:
"First. Notes of circulation.
* * * * * *
"Sixth. Liabilities incurred under the provisions of the War Finance Corporation Act."
Section 20, in short, sets forth between opening and closing quotation marks what appears as the entire text of the revised section 5202; and as a glance at Appendix C will confirm, the language of section 92 is not to be found in section 5202 as amended.
Under traditional rules of statutory construction, the meaning of section 92's omission is plain; material omitted on reenactment is deemed repealed. See, e.g., Keppel v. Tiffin Savings Bank,
2. Did Congress Intend to Repeal Section 92?
The parties do not dispute the fact that section 92 cannot survive a literal reading of the 1916 and 1918 statutes. They argue, instead, that the section remains valid because Congress did not intend to repeal it. They make their statutory argument in two stages: First, they contend that the apparent deletion was the result of misplaced quotation marks in the 1916 amendments that had the effect of placing section 92 within section 5202 of the Revised Statutes instead of making it part of section 13 of the Federal Reserve Act. They then reason that as section 5202 as amended was not intended to include section 92, its omission from the subsequent revision of section 5202 should not effect a repeal.
They assert, specifically, that a quotation mark should not have appeared at the end of the paragraph marked in Appendix B, and that the quotation mark now appearing after the first colon in paragraph should have been placed at the beginning of that paragraph. Had section 20 been so punctuated, they say, it would be clear that section 5202 itself had not been amended to include the textually unrelated paragraphs marked , (section 92), and . Because a change of these quotation marks would make for greater textual consistency in the 1916 amendments, the parties argue that a mistake was made in the printing of the bill, and they cite cases in which courts have adjusted the punctuation of statutes in order to make sense of them. They conclude that the 1918 Act's revision of section 5202 did not delete section 92 because the latter could not properly be considered part of the former.
In support of their view of the 1916 amendments and their interaction with the [
This is an impressive array of witnesses, but the verdict is not unanimous. Committee member (and future chairman) Wright Patman was of the view that section 92 did not exist. Id. at 1062 (section 92 "was repealed in 1918"). Seven years later, the staff of a House Banking subcommittee, after examining the response of the Comptroller to a series of questions, would conclude that
[w]hether or not the Congress ... [intended] to perpetuate 12 U.S.C. 92, cannot be ascertained. In any event, however, its intentions would not suffice to overcome the effect of the deletion of § 92 by the inclusion of § 20 in the Act of 1918.... Section 92 is non-existent.
Consolidation of Bank Examining and Supervisory Functions, 1965: Hearings on H.R. 107 and H.R. 6885 before the Comm. on Banking and Currency of the House of Representatives, Subcomm. on Bank Supervision and Insurance, 89th Cong., 1st Sess. 3, 391 (1965) ("1965 Hearings").
It seems to us that the subcommittee staff had its eyes on the right question; namely, on the effect of the 1918 Act. Whatever the intentions of the 64th Congress in 1916, they are essentially irrelevant to the task at hand. What we are called upon to determine are the consequences of the action taken by the 65th Congress when, two years later, it voted the 1918 Act into law. Section 20 of that Act, which amended section 5202, originated as a floor amendment that was adopted without debate. See 1965 Hearings at 391. It seems fair to assume that in drafting section 20 and in voting to enact it, the author and interested members of the House and Senate would have sought out a current text of section 5202 to work from, and not relied on institutional memories of what the text was, or should have been.
At that time, there were only three sources to which they could turn for up-to-date information: the Statutes at Large, which reproduced section 5202's facially unambiguous language, or either of two privately published services. Each of these services reported that as a result of the 1916 amendments, section 5202 of the Revised Statutes contained the provisions to be found in the paragraphs marked through of Appendix B. See 9 U.S.Comp.Stat.Ann. § 9764 (West 1916) and 3 U.S.Stat.Ann. § 5202 (T.H. Flood & Co. 1916). Absent concrete evidence to the contrary, we must assume that the 65th Congress understood section 92 to be part of section 5202, and that its exclusion from the amended section 5202 signaled its repeal.
The Comptroller argues, however, that as the purpose of the War Finance Corporation Act of 1918 was to assist the financing of the war effort, a purpose that had no logical relationship to the insuranсe activities of small town banks, the traditional rule governing provisions omitted in the version of a statute should not be applied to this case. In support of this position, the Comptroller cites two cases interpreting the Clayton Finality Act of 1959, 73 Stat. 243 (1959), F.T.C. v. Jantzen, Inc.,
The inconsistency found in those two cases was one where the literal application of a statutory phrase in the Clayton Finality Act would have frustrated a clearly stated purpose of the amendment. Here, however, there is no inherent contradiction between the deletion of section 92 and facilitating the financing of the American war effort. The two are simply unrelated, and no one argues that the stated purpose of the 1918 Act would have been impeded by the section's repeal.
The Comptroller refers us to cases indicating that we have the authority to rectify Congress's apparent error: When "a mistake in draftsmanship is obvious, courts may remedy the mistake," Symons v. Chrysler Corp. Loan Guarantee Bd.,
3. Subsequent treatment by Congress, the Comptroller, and the courts
The parties argue, finally, that the subsequent treatment of section 92 by legislative, administrative, and judicial officials requires us to find that the provision is alive and well. First, they note that Congress in 1982 attempted to delete several provisions from section 92. See Garn-St. Germain Depository Institutions Act of 1982, Pub.L. No. 97-320, § 403(b), 96 Stat. 1469, 1510-11 (1982); see also S.Rep. No. 536, 97th Cong., 2d Sess. 60 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News 3054, 3114 (section 403(b) is "a conforming amendment to 12 U.S.C. § 92, which deletes existing reference to the authority of national banks.") (emphasis added). Moreover, at the time the parties filed their supplemental briefs, Congress was considering legislation that, inter alia, would repeal section 92. See H.R. 6, 102nd Cong., 1st Sess. § 432 (1991). The parties contend that Congrеss would hardly seek to modify or repeal a statute that no longer existed.
What Congress may now believe, however, is irrelevant. "[I]t is well settled that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." Russello v. United States,
In none of the cases cited by the parties has a court found that section 92 remains valid; rather, they have presumed that it does. See, e.g., Independent Bankers Ass'n v. Heimann,
While the Supreme Court made a number of references to section 92 in Commissioner v. First Security Bank of Utah, N.A.,
The Supreme Court described the question before it as "whether there was a shifting or distorting of the Banks' true net income resulting from the receipt and retention by [the insurance subsidiary] of the premiums above described." Id. at 400-01,
the Banks could never have received a share of these premiums. National banks are authorized to act as insurance agents when located in places having a population not exceeding 5,000 inhabitants, 12 U.S.C.A. § 92.1212
Notes
12. Section 92 of the National Bank Act was enacted in 1916. When the statutes were revised in 1918 and re-enacted, § 92 was omitted. The revisers of the United States Code have оmitted it from recent editions of the Code. However, the Comptroller of the Currency considers § 92 to be effective and he still incorporates the provision in his Regulations, 12 CFR §§ 2.1-2.5 (1971).
Id. at 400 and n. 12,
Although § 92 does not explicitly prohibit banks in places with a population of over 5,000 from acting as insurance agents, courts have held that it does so by implication.
The Comptroller of the Currency has acquiesced in this holding, and the Court of Appeals for the Tenth Circuit expressed its agreement in the opinion below.
* * * * * *
[The Commissioner] does not contest this finding by the Tax Court or the holding in this respect of the Court of Appeals below. Accordingly, we assume for purposes of this decision that the Banks were prohibited from receiving insurance-related income....
Id. at 401-02,
Based on this assumption, the Court concluded that because the banks did not in fact receive any premium income, and because they would have been precluded from receiving such income whether or not they were under common control with the insurance subsidiary, "the premium income received by [the insurance subsidiary] could not be attributable to the Banks"; the "Commissioner's exercise of his § 482 authority was therefore unwarranted." Id. at 407,
While it is true, as Justice Blackmun noted in dissent, that the Court had placed "repetitive emphasis on the missing § 92," id. at 419,
Thus, the Supreme Court never directly addressed the question before us today. A determination of the validity of section 92 was not necessary to its decision in First Security Bank; and while the footnote observed that the Comptroller still considered [
III. CONCLUSION
We acknowledge that the parties' analysis of the 1916 amendments is plausible, and that the placement of section 92 in section 5202 of the Revised Statutes might well have been a mistake. Their claim that we must therefore find section 92 valid, however, runs up against the stubborn fact that the troublesome quotation marks are located where they are, not where the parties argue that the 64th Congress intended them to be. Like it or not, they are an integral part of the bill that the President signed into law and that was enrolled in the Statutes at Large. In adopting section 20 of the 1918 Act, the 65th Congress amended section 5202 as it appeared in those Statutes; and as the parties have failed to point to any concrete evidence to the contrary, we must conclude that Congress intended the consequences of its actions, and that section 92 has ceased to exist.
Moreover, even if we were persuaded that its repeal was in fact the result of cumulative mistakes by both Congresses (the misplacement of quotation marks in 1916 and the failure to take corrective action in 1918), we would still be hesitant to move into the breach. We recognize that, in order to give effect to a clear congressional intent, federal courts have assumed a rather broad responsibility for correcting flaws in the language and punctuation of federal statutes. There is a point, however, beyond which a court cannot go without trespassing on the exclusive prerogatives of the legislative branch.
We believe we are at that point. It is one thing for a court to bend statutory language to make it achieve a clearly stated congressional purpose; it is quite another for a court to reinstate a law that, intentionally or unintentionally, Congress has stricken from the statute books. If the deletion of section 92 was a mistake, it is one for Congress to correct, not the courts.
As section 24 of the National Bank Act limits a national bank's activities to those authorized by law, and as the Comptroller cites no authority other than that section for its challenged ruling, we find that ruling not in accordance with law. We therefore reverse and remand the case to the district court with instructions to enter judgment for appellants.
So ordered.
APPENDIX A
Section 13 of Federal Reserve Act of 1913
POWERS OF FEDERAL RESERVE BANKS.
Sec. 13. Any Federal reserve bank may receive....
* * * * * *
Any member bank may accept drafts or bills of exchange drawn upon it and growing out of transactions involving the importation or exportation of goods having not more than six months sight to run; but no bank shall accept such bills to an amount equal at any time in the aggregate to more than one-half its paid-up capital stock and surplus.
Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
First. Notes of circulation.
Second. Moneys deposited with or collected by the association.
Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto.
Fourth. Liabilities to the stockholders of the association for dividends and reserve profits.
Fifth. Liabilities incurred under the provisions of the Federal Reserve Act.
The rediscount by any Federal reserve bank of any bills receivable and of domestic [
APPENDIX B
1916 Amendments to Federal Reserve Act of 1913
CHAP. 461.--An Act To amend certain sections of the Act entitled "Federal Reserve Act," approved December twenty-third, nineteen hundred and thirteen.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act entitled "Federal reserve Act," approved December twenty-third, nineteen hundred and thirteen, be, and is hеreby, amended as follows:
* That section thirteen be, and is hereby amended to read as follows:
"Any Federal reserve bank may make advances to its member banks on their promissory notes for a period not exceeding fifteen days at rates to be established by such Federal reserve banks, subject to the review and determination of the Federal Reserve Board, provided such promissory notes are secured by such notes, drafts, bills of exchange, or bankers' acceptances as are eligible for rediscount or for purchase by Federal reserve banks under the provisions of this Act, or by the deposit or pledge of bonds or notes of the United States." Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: "No national banking association shall at any time be indebted, or in any way liable, to an amоunt exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
"First. Notes of circulation.
"Second. Moneys deposited with or collected by the association.
"Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto.
"Fourth. Liabilities to the stockholders of the association for dividends and reserve profits.
"Fifth. Liabilities incurred under the provisions of the Federal Reserve Act.
"The discount and rediscount and the purchase and sale by any Federal reserve bank of any bills receivable and of domestic and foreign bills of exchange, and of acceptances authorized by this Act, shall be subject to such restrictions, limitations, and regulations as may be imposed by the Federal Reserve Board. "That in addition to the powers now vested by law in national banking associations organized under the laws of the United States [§ 92] any such association located and doing business in any place the population of which does not exceed five thousand inhabitants, as shown by the last preceding decennial census, may, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company authorized by the authorities of the State in which said bank is located to do business in said State, by soliciting and selling insurance and collecting premiums on policies issued by such company ; ... Provided [sic], however, That no such bank shall in any case guarantee ... the payment of any premium on insurance policies issued through its agency by its principal: And provided further, That the bank shall not guarantee the truth of any statement made by аn assured in filing his application for insurance. "Any member bank may accept drafts or bills of exchange drawn upon it ... Provided further, That no member bank shall accept such drafts or bills in an amount exceeding at any time the aggregate of one-half of its paid-up and unimpaired capital and surplus."[
Section 20 of the War Finance Corporation Act of 1918
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
TITLE I.--WAR FINANCE CORPORATION.
* * * * * *
Sec. 20. Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows:
"Sec. 5202. No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
"First. Notes of circulation.
"Second. Moneys deposited with or collectеd by the association.
"Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto.
"Fourth. Liabilities to the stockholders of the association or dividends and reserve profits.
"Fifth. Liabilities incurred under the provisions of the Federal Reserve Act.
"Sixth. Liabilities incurred under the provisions of the War Finance Corporation Act."
SILBERMAN, Circuit Judge, dissenting:
My position might be thought counter-intuitive, but I would decide the case, as did the district court, without reaching the question the majority thinks is a necessary antecedent: whether section 92 is still good law. Appellants did not challenge the validity of section 92. Indeed, after the court ordered the parties to address the issue at oral argument and appellees filed supplemental materials supporting the conclusion that the statute was not repealed, counsel for appellants forthrightly said:
It wоuld quite obviously be to the appellants' advantage if section 92 were no longer in existence, since there would be no statutory basis for the Comptroller's order. We have researched the issue, both earlier and in light of the court's questions, and we have carefully reviewed the submission made by the government.... Given that the statutory issue involves a controversy over the use of punctuation, that Congress obviously intended to amend the law in 1982, and that the Supreme Court has in fact described the law as in effect, while noting its curious history, we have concluded that we cannot advance a substantial argument that section 92 no longer exists.
To be sure, when five months later the panel, having not decided the case, directed the parties to brief the issue, appellants--no doubt at that point realizing that their chances for success were dependent upon indulging the court--did so and partially switched their position, urging us to decide whether section 92 exists. But in answer to our question "whether this court should decide the validity of 12 U.S.C. § 92 in the absence of a challenge to its validity," appellants could only suggest that the question might be jurisdictional--that if section 92 actually had been repealed in 1918, the case might be "moot" or perhaps might "not even arise." I do not think there is very much to either argument1 (nor, apparently, does the majority), but I agree with appellants' implicit premise: that unless we [
My colleagues take a different position. Driven by the perceived duty to inquire, on their own, into section 92's validity, they decide the issue. With all due respect, I think the majority is quite wrong in its perception of our judicial obligation. We owe no abstract duty to Congress (or the President) to enforce or not to enforce laws; all of our power derives from our constitutional duty to decide cases and controversies. The issue of section 92's validity was decidedly not part of the "case or controversy" as it was brought to the district court or on appeal to us. It is quite fair to say that we have added it to the case; we have created a controversy that did not exist. That 1 U.S.C. § 204(a) states that "matter set forth" in the Code "establish[es] prima facie the laws of the United States" hardly suggests any independent duty on the part of the judiciary to inquire whether matters not appearing in the Code, but which the parties agree continue to be law, remain valid.2
I do not think my view has ever been stated better than in the passage the majority quotes from Carducci v. Regan,
The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.
Id. at 177. The majority, however, trumps Judge Scalia in Carducci with Justice Scalia in Arcadia, Ohio v. Ohio Power Co., --- U.S. ----,
The next year in Kamen v. Kemper Financial Services, Inc., --- U.S. ----,
The majority's reliance on Town of South Ottawa v. Perkins,
More in point, it seems to me, is McCormick v. United States, --- U.S. ----,
As acknowledged by the McCormick majority, see McCormick,
Although the repeal of a statute moots controversies over the law's validity, see, e.g., Burke v. Barnes,
I do not think the majority is even correct in using the term "presumption," but our "duty" is not affected in any event
Perhaps because the Court did not wish to set forth a justifying principle that extended beyond that case. The Supreme Court, I gather, weighs docket management factors that the lower federal courts do not encounter. If the Court wants us to adopt a more relaxed stance than I think appropriate, this case may well offer a suitable vehicle to so instruct us
See Maj.Op. at 737-39. Although I agree that subsequent assumptions by the executive, legislative, and judicial branches cannot establish Congress' intent in 1918, I do think that such widespread acceptance of section 92's existence precludes us from reaching a different conclusion in the absence of a challenge by one of the parties