[Volokh] Eugene Volokh: Article III, Congress, and the Texarkana Courthouse

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Posted by Eugene Volokh:
Article III, Congress, and the Texarkana Courthouse
http://volokh.com/archives/archive_2008_06_08-2008_06_14.shtml#1213115619


   When a comment on the [1]Texarkana thread pointed to a story about the
   Texarkana federal courthouse and a special federal statute that would
   let cases in the courthouse be heard on either side of the state line,
   I remembered Brian Kalt's fascinating [2]The Perfect Crime -- the rare
   law review article that has inspired a mystery novel. Brian Kalt,
   naturally, had the same thought, but based on actual knowledge of the
   legal issue, and was kind enough to pass it along:

     Your [3]Texarkana post last week caused Ira Matesky to contact me
     with an interesting constitutional issue that the Texarkana
     Courthouse presents.

     I had been corresponding with Mr. Matesky about my new piece,
     [4]Tabloid Constitutionalism. The piece is a case study of the
     near-comic fecklessness of Congress and the courts in dealing with
     a loophole I identified (in which people can arguably commit crimes
     with impunity in a small corner of Idaho).

     In Tabloid Constitutionalism, I had to respond to people who said
     that Congress had better things to worry about than my little issue
     (short answer: fair enough, but they aren't fixing those other
     things either). The Texarkana story adds a different sort of data
     point to the field. Here, Congress went out of its way to act,
     addressing a non-existent problem yet failing to solve it.

     As [5]this article explains, the federal courthouse in Texarkana
     straddles the state line. Part of the building is in the Eastern
     District of Texas and the Fifth Circuit, while part is in the
     Western District of Arkansas and the Eighth Circuit. It's a fun
     little anomaly, and things seem to work pretty well. Here's the
     problem (emphasis added):

     The temptation is to borrow a courtroom from the other district.
     But does that mean a Texas case could wind up being heard in an
     Arkansas courtroom?

     "It's usually not a problem with civil cases, with the consent of
     the parties," said [Judge David] Folsom. "But we'd be concerned
     about the change with criminal cases, or in the rare civil case
     where the parties might object to their case being heard in another
     state."

     To settle that question, a provision in the Federal Courts
     Improvement Bill of 2004 would allow the Western District of
     Arkansas and the Eastern District of Texas to hold court anywhere
     within the federal courthouse.

     Sure enough, Congress enacted the [6]Federal Courts Improvement Act
     of 2004 (FCIA), § 103 of which declared that cases in Texarkana in
     either district/state could be heard anywhere in the courthouse. It
     does not limit itself to civil cases.

     The problem is that Article III, § 2, cl. 3 states that federal
     criminal trials "shall be held in the State where the said Crimes
     shall have been committed." So if you commit a crime in Texas, you
     have a constitutional right to have your trial in Texas. Not "Texas
     or really close to Texas," just "Texas."

     So what does the FCIA accomplish in criminal cases? Let's take a
     hypothetical scenario. Say I get arrested in nearby Atlanta, TX for
     RICO violations stemming from my unhealthy obsession with local
     talk-radio station KALT (1610 on your AM dial). The courtrooms on
     the Texas side of the Texarkana courthouse are unavailable when my
     trial date rolls around, so they assign me to a courtroom on the
     Arkansas side, citing the FCIA.

     The chances of this being a problem seem pretty slim: I might plead
     guilty, or I might go to trial but waive my Article III right to be
     tried in Texas. But if either of those things happened, then the
     prosecutors would be safe even without the FCIA. I could have
     pleaded guilty or waived my right just as easily before the Act
     passed. The FCIA changes nothing in the criminal context.

     On the other side, I might object. I have a constitutional right to
     be tried in Texas, after all, and as the [7]original post made
     clear to anyone who didn't know it before, Arkansas definitely is
     not Texas. If I object to the application of the FCIA in my case,
     what can the prosecutor say? The Act can't amend Article III, after
     all. There is no question that the trial is on the wrong side of
     the state line. I'd have a decent argument that the trial and the
     FCIA are simply unconstitutional.

     Maybe I'd lose. Perhaps the prosecutor could argue that this is a
     de minimis violation; this is literally as near to compliance with
     Article III as a wrong-state trial can be. But would DOJ really
     litigate the issue and risk losing a criminal case over this? One
     would hope that they would play it safe and just switch courtrooms
     if I objected. But if they do that, then what was the point of the
     FCIA? And conversely, if DOJ fought the issue and won -- that is,
     if the court refused to apply Article III so strictly -- wouldn't
     DOJ have been able to get the same result even without the FCIA?
     It's hard to imagine a court saying: "This wrong-state trial would
     ordinarily be unconstitutional. Because Congress encouraged it in
     this statute, however, it is now OK."

     In other words, there was a scheduling problem with criminal trials
     at the federal courthouse in Texarkana. A solution worked its way
     through the labyrinthine legislative process; Congress found out
     about the problem and took decisive action. The solution didn't
     actually affect the problem at all, but hey, at least it was
     decisive.

References

   1. http://volokh.com/posts/1212631672.shtml
   2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=691642
   3. http://www.volokh.com/archives/archive_2008_06_01-2008_06_07.shtml#1212631672
   4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136301
   5. http://www.uscourts.gov/ttb/june04ttb/texarkana/index.html
   6. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_bills&docid=f:s2396is.txt.pdf
   7. http://www.volokh.com/archives/archive_2008_06_01-2008_06_07.shtml#1212631672