Friday, November 20, 2009

Ninth Circuit Chief Issues Order Providing Same-Sex Benefits And Gives The Executive Branch A Lesson On Separation Of Powers

Ninth Circuit Chief Judge Alex Kozinski entered a published order yesterday awarding back pay to a court employee who was harmed when the government refused to provide insurance coverage for her same-sex spouse.  The order in the case of In the Matter of Karen Golinski (09-80173) can be viewed here

The order is interesting for a number of reasons including the same-sex benefits and the lesson on federalism and separation of powers the Chief Judge provides.

On January 13, 2009, Chief Judge Kozinski entered an order requiring the court's health plan to provide benefits to Ms. Golinski's spouse. You can see the January 13, 2009 order here.  However, the Executive Branch's Office of Personnel Management (OPM) ordered the health plan to refuse to provide the coverage "thwarting the relief" the Chief Judge had ordered.  Clearly angered by the actions of OPM, Chief Judge Kozinski stated "the Executive must henceforth respect the Judiciary’s interpretation of the laws applicable to judicial employees." (emphasis added).

The court continued:
OPM has a duty to take care that the laws be faithfully executed, but it may not disregard a coordinate branch’s construction of the laws that apply to its employees. No less than the other branches of government, the Judiciary is dependent on people to carry out its mission. Barring us from determining, within reasonable bounds, the rights and duties of our personnel under the laws providing for their employment would make us a “handmaiden of the Executive.” United States v. Smith, 899 F.2d 564, 569 (6th Cir. 1990). The power both to interpret and execute a law is the power to control those governed by it. Cf. The Federalist No. 47 (James Madison).
Concern about such a fate is particularly acute for the Judicial Branch. We rely on Congress to fund and the Executive to carry out many aspects of our day to day operations. GSA manages the buildings where we work, Treasury cuts our checks, U.S. Marshals provide our security and OPM administers our employee benefits programs. But if the theory of separate powers means anything, it’s that the Executive cannot use its dominance over logistics to destroy our autonomy...
That those rights are not in question here is irrelevant. The power the Executive has arrogated to itself in this case would be enough to sustain those actions as well. Nor is it any answer that OPM could set out a plausible interpretation of the law to support its actions in this case. Some branch must have the final say on a law’s meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise.
(emphasis added).  Thanks to How Appealing for the link.


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