Justices weigh Legislators' right to fire

The Speech or Debate Clause in the Constitution protects a Congress member's "legislative acts" from judicial inquiry, but Supreme Court Justice John Paul Stevens wondered yesterday just how encompassing that term might be.

"Firing someone is a legislative act?" he wondered.

It can be, responded a lawyer for Mark Dayton (D-Minn.), a one-term senator who left office in January.

Dayton is being sued by Brad Hanson, a former employee, and the case holds the potential for the court to determine the protections afforded those who work for the legislative branch and the immunity that Congress members should receive for their decisions to hire, fire and promote the people who work for them.

Or maybe not. Before the court can get to the Speech or Debate Clause or what Congress intended when it subjected itself to 11 labor and employment laws through the 1995 Congressional Accountability Act, the justices must cut through a tangle of jurisdictional and procedural issues.

Such as whether there is still an "office of Sen. Mark Dayton" to sue.

"The defendant has ceased to exist," said Jean M. Manning, Senate chief counsel for employment. "When there was no Senator Dayton, there was no office of Senator Dayton."

But Justice Antonin Scalia said that there is still a Senate, and that the Senate ultimately was the body that paid Hanson's salary.

Despite the wrangling over procedural issues that may preempt a decision on the merits, the eight justices who heard the case were lively questioners. (Chief Justice John G. Roberts Jr. recused himself because he had been involved in the case as an appellate judge.)

Hanson, a case worker and office manager for Dayton in Minnesota, said he spent most of his time working on a health-care help line. Hanson said that when he fell ill in 2002, requiring heart surgery and recovery, Dayton fired him. Dayton said Hanson was released for cause.

Hanson sued under the employee protections passed in 1995 when Republicans took over Congress, a "Contract With America" provision that said Congress should abide by the same laws it passed for private employers. Lower courts have said that Hanson's lawsuit, which no jury has heard, should proceed.

Manning said the Supreme Court has recognized that members of Congress must delegate some authority to aides, who become a "second self" of the member. Lawmakers must have "complete discretion in selecting who these employees are and in managing them," and thus firing one is part of the legislative actions.

Justice Ruth Bader Ginsburg wondered whether that would cover everyone who worked for a senator, asking: "How many second selves would there be?"

"Maybe he was the 23rd self," interjected Scalia. "I think you have to figure out when he was hired."

But Hanson's lawyer, Richard A. Salzman, said Dayton is looking for "absolute immunity" for his actions. "There was no legislative act involved in Mr. Hanson's firing," Salzman said. "He was just fired."

In a further twist, the Senate's own lawyers are divided in the case. While Manning's office is charged with defending Dayton, assistant Senate legal counsel Thomas E. Caballero was in court to support Hanson, saying that lawsuits like his were what Congress intended when it passed the accountability act.

(Published by The Washington Post, April 25, 2007)