In an interesting side-note to the Medellin decision, the case’s convoluted procedural history made for some rather strange political bed fellows. The Court’s decision, anchored by the “conservative wing” (Roberts, Scalia, Thomas, Alito) and joined by the “moderate” Kennedy and (writing separately) the “liberal” Stevens effectively clears the last remaining roadblock to Texas’s imposition of the death penalty on the murderer Jose Erenesto Medellin. Consequently, Tuesday’s result disappointed death penalty abolitionists, who join on the losing side those who want international law to have direct applicability in the United States. That’s right, by ruling against President Bush’s executive overreach — which at least three members of the Court’s “liberal” wing implicitly ratified — the Court angered cosmopolitan liberals. Go figure.
[Cross-posted at Cato's blog.]
Thursday, March 27, 2008
Wednesday, March 26, 2008
I Am the Very Model of a Modern Major General
Yesterday, in addition to announcing its decision in the Medellin case (which I blogged about here), the Supreme Court heard argument in two cases relating to the War on Terror.
First, in Munaf v. Geren, two U.S. citizens (also citizens of Jordan and Iraq, respectively) held captive in Iraq by U.S. forces — as part of Multi-National Force-Iraq, which may but should be a key determinant – challenged their detention and potential transfer to Iraqi authorities for what they fear will be torture as part of criminal prosecution in Iraqi courts. This seems to be an easier case than Boumediene, a case argued in December wherein Guantanamo detainees challenge their containment and the military commissions by which they are to be tried. (My Cato colleague Tim Lynch blogged about that case here and here, and also filed an amicus brief.)
Whatever hope the detainees had was probably dashed by the incoherent presentation made by Northwestern Law School Clinical Professor Joseph Margulies on their behalf. As Lyle Denniston of SCOTUSblog put it, “when several Justices of the Supreme Court tell an attorney they do not understand his argument, and they do so because the argument was, indeed, fundamentally confusing, the chances of winning may be significantly reduced.” Ouch. Margulies turned what should be relatively straightforward issues into a convoluted maze, and those of us in the audience were not the only ones shaking our heads.
The second argument, and the one relating to the title of this blog post, involved the prosecution of the guy who was caught smuggling explosives into the U.S. from Canada in an attempt to blow up LAX at the turn of the century. (Is it ok to use that expression for the 1999-2000 period yet?) In United States v. Ressam, Attorney General Mukasey exercised the AG’s historical (but not much used of late) prerogative to argue before the high court, defending the 10-year additional prison term slapped on the Milennial bomber for “carrying an explosive” while “committing a felony” — the felony being lying to the border guard. Having learned from Margulies’s example, Mukasey did a workmanlike job and sat down with 14 minutes remaining in his allotted time. The case will turn on some rather technical statutory analysis which I’ll spare you, but it was refreshing to see an appellate advocate who was clearly not there to hear his own voice.
[Cross-posted at Cato's blog.]
First, in Munaf v. Geren, two U.S. citizens (also citizens of Jordan and Iraq, respectively) held captive in Iraq by U.S. forces — as part of Multi-National Force-Iraq, which may but should be a key determinant – challenged their detention and potential transfer to Iraqi authorities for what they fear will be torture as part of criminal prosecution in Iraqi courts. This seems to be an easier case than Boumediene, a case argued in December wherein Guantanamo detainees challenge their containment and the military commissions by which they are to be tried. (My Cato colleague Tim Lynch blogged about that case here and here, and also filed an amicus brief.)
Whatever hope the detainees had was probably dashed by the incoherent presentation made by Northwestern Law School Clinical Professor Joseph Margulies on their behalf. As Lyle Denniston of SCOTUSblog put it, “when several Justices of the Supreme Court tell an attorney they do not understand his argument, and they do so because the argument was, indeed, fundamentally confusing, the chances of winning may be significantly reduced.” Ouch. Margulies turned what should be relatively straightforward issues into a convoluted maze, and those of us in the audience were not the only ones shaking our heads.
The second argument, and the one relating to the title of this blog post, involved the prosecution of the guy who was caught smuggling explosives into the U.S. from Canada in an attempt to blow up LAX at the turn of the century. (Is it ok to use that expression for the 1999-2000 period yet?) In United States v. Ressam, Attorney General Mukasey exercised the AG’s historical (but not much used of late) prerogative to argue before the high court, defending the 10-year additional prison term slapped on the Milennial bomber for “carrying an explosive” while “committing a felony” — the felony being lying to the border guard. Having learned from Margulies’s example, Mukasey did a workmanlike job and sat down with 14 minutes remaining in his allotted time. The case will turn on some rather technical statutory analysis which I’ll spare you, but it was refreshing to see an appellate advocate who was clearly not there to hear his own voice.
[Cross-posted at Cato's blog.]
Supreme Court to President Bush: Don't Mess With Texas
Yesterday the Supreme Court slipped the Gordian knot of a case that could have come straight from a law school exam, involving federalism, treaty interpretation, the scope of executive power, criminal procedure, and conflicts between international and domestic law. The issues in Medellin v. Texas boiled down to: 1) Whether a particular decision of the International Court of Justice is automatically binding on Texas courts and, if not, 2) Whether President Bush made it binding by issuing a memorandum to then-Attorney General Alberto Gonzales. The Court answered in the negative on both counts by a 6-3 margin.
The result of this decision is that neither the ICJ (the so-called “World Court”) nor the president acting alone can force states to review criminal cases involving foreign nationals. The underlying treaty at issue – which gives foreign nationals accused of a crime the right to meet with consular officials – is not enforceable in the absence of implementing legislation from Congress. The ICJ ruling is similarly not self-executing, and does not gain legal effect merely because the president tells the states to abide by it.
The Supreme Court has thus protected America’s carefully calibrated system of federalism and checks and balances by preventing an international court from overriding a state’s duly enacted (and constitutionally sound) law. Just as importantly, the Court correctly rejected the argument that the president has the power to enforce against the states a treaty that is, in the absence of congressional action, enforceable only by diplomatic means. Telling state courts how to do their jobs is simply not among the powers of the nation’s chief executive.
[Cross-posted at Cato's blog.]
The result of this decision is that neither the ICJ (the so-called “World Court”) nor the president acting alone can force states to review criminal cases involving foreign nationals. The underlying treaty at issue – which gives foreign nationals accused of a crime the right to meet with consular officials – is not enforceable in the absence of implementing legislation from Congress. The ICJ ruling is similarly not self-executing, and does not gain legal effect merely because the president tells the states to abide by it.
The Supreme Court has thus protected America’s carefully calibrated system of federalism and checks and balances by preventing an international court from overriding a state’s duly enacted (and constitutionally sound) law. Just as importantly, the Court correctly rejected the argument that the president has the power to enforce against the states a treaty that is, in the absence of congressional action, enforceable only by diplomatic means. Telling state courts how to do their jobs is simply not among the powers of the nation’s chief executive.
[Cross-posted at Cato's blog.]
Friday, March 21, 2008
New Yok Times Gets It Wrong, Story at 11
The New York Times Magazine’s most recent issue (March 16, 2008) simultaneously features a shariah apologetic and an accusation that the Supreme Court is in the pocket of big business.
In the former, Harvard law professor Noah Feldman prescribes the election of Islamist parties and entrenchment of Allah’s law (as interpreted by a council of scholars) as the cure to the Muslim world’s ailments. In the latter, GW law professor Jeffrey Rosen contends that liberal and conservative elites — like NYT readers? — have colluded to do in the common man. There is so much wrong with these analyses, one hardly knows where to begin. (For a point-by-point takedown of the Rosen piece, see Eric Posner’s post on Slate’s new legal blog.)
Feldman, who “had a small role advising the Iraqi [constitutional] drafters,” sees shariah as both a proto-aspirational document somewhat akin to our Declaration of Independence and a source of law more legitimate than duly constituted (secular) legal codes. But both of these things cannot be: Either shariah is the law of God as strictly interpreted (on what authority?) by man or it is a non-binding sentiment, much like American politicians’ references to America’s Judeo-Christian values. Advocates of shariah would be the first to admit that if you’re going in for God’s law, you can’t summarily ignore its anachronisms. Let people live under shariah if they so desire, but be wary of its negative externalities.
Rosen, meanwhile, sees a conspiracy involving anyone who has ever studied the “economic analysis of law” (and uses phrases like “negative externalities”) while holding up as a paragon of judicial virtue a jurist who said he was “ready to bend the law … against the corporations.” At the same time, Rosen posits that the Chamber of Commerce destroyed Ralph Nader’s noble crusade to help the consumer and hoodwinked the Court — even, at times, that model of “liberal judicial restraint,” Justice Ruth Bader Ginsburg — by hiring a bunch of rich lawyers (presumably not the same rich lawyers who reap all the punitive damages from the state tort claims that Rosen lauds). These sentiments distort legal history and misunderstand the proper role of the judiciary; to paraphrase a salient point then-nominee John Roberts made at his confirmation hearings, the little guy should win when the law is on his side, and the big corporation should win when the law is on its side.
In short, those of us who believe in the rule of law rather than men and in a Constitution that circumscribes the powers of government are heartened by both the outcry against Rowan Williams and the Supreme Court’s near-unanimous view that corporations are people too (indeed, they are, but legal persons composed of human directors, officers, employees, and investors). But then perhaps we are all in on the conspiracy.
[Cross-posted at Cato's blog.]
In the former, Harvard law professor Noah Feldman prescribes the election of Islamist parties and entrenchment of Allah’s law (as interpreted by a council of scholars) as the cure to the Muslim world’s ailments. In the latter, GW law professor Jeffrey Rosen contends that liberal and conservative elites — like NYT readers? — have colluded to do in the common man. There is so much wrong with these analyses, one hardly knows where to begin. (For a point-by-point takedown of the Rosen piece, see Eric Posner’s post on Slate’s new legal blog.)
Feldman, who “had a small role advising the Iraqi [constitutional] drafters,” sees shariah as both a proto-aspirational document somewhat akin to our Declaration of Independence and a source of law more legitimate than duly constituted (secular) legal codes. But both of these things cannot be: Either shariah is the law of God as strictly interpreted (on what authority?) by man or it is a non-binding sentiment, much like American politicians’ references to America’s Judeo-Christian values. Advocates of shariah would be the first to admit that if you’re going in for God’s law, you can’t summarily ignore its anachronisms. Let people live under shariah if they so desire, but be wary of its negative externalities.
Rosen, meanwhile, sees a conspiracy involving anyone who has ever studied the “economic analysis of law” (and uses phrases like “negative externalities”) while holding up as a paragon of judicial virtue a jurist who said he was “ready to bend the law … against the corporations.” At the same time, Rosen posits that the Chamber of Commerce destroyed Ralph Nader’s noble crusade to help the consumer and hoodwinked the Court — even, at times, that model of “liberal judicial restraint,” Justice Ruth Bader Ginsburg — by hiring a bunch of rich lawyers (presumably not the same rich lawyers who reap all the punitive damages from the state tort claims that Rosen lauds). These sentiments distort legal history and misunderstand the proper role of the judiciary; to paraphrase a salient point then-nominee John Roberts made at his confirmation hearings, the little guy should win when the law is on his side, and the big corporation should win when the law is on its side.
In short, those of us who believe in the rule of law rather than men and in a Constitution that circumscribes the powers of government are heartened by both the outcry against Rowan Williams and the Supreme Court’s near-unanimous view that corporations are people too (indeed, they are, but legal persons composed of human directors, officers, employees, and investors). But then perhaps we are all in on the conspiracy.
[Cross-posted at Cato's blog.]
Wednesday, March 19, 2008
California Attempts to Silence State Contractors
Imagine that you do business in California. Maybe you’re in construction, or health care, or auto repair. Now imagine some or all of your income comes from state contracts; using the above examples, perhaps you build schools, or take care of patients on Medi-Cal, or fix broken-down LAPD squad cars. Now imagine that the state comes in and says, aha, because we pay your bills — again, on contracts relating to construction, health care, auto repair, etc. — and we love unions, you can’t talk to your employees about any negative aspects of unionization. Ridiculous, right? Who is a customer to tell you what to do with money that’s already in your pocket?
Well, that’s precisely what the great state of California is trying to do with a new statute that small businesses are challenging in the case of Chamber of Commerce v. Brown. It’s a little bit more complicated than I outline above because the case implicates highly technical provisions of the National Labor Relations Act (and previous Supreme Court interpretations thereof), but the gist is that California is attempting to silence employers by tying speech restrictions to unrelated state spending. For reasons that the petitioners ably present in their briefs and that I summarize in a podcast and in Cato’s own amicus brief, the Supreme Court should strike down this statute.
In any event, that’s the background to my trip to the Court to hear argument in Chamber v. Brown today. (The plaza in front of the courthouse steps was remarkably free of demonstrators after yesterday’s hoopla surrounding the DC Gun Ban case.) I’ll save you the detailed summary of the argument, but suffice it to say that the outcome will almost certainly go against California. It’s always dicey predicting the scorecard, but based on oral argument it will probably be 7-2, 6-3, or maybe 6-1-2. On one side, Justices Scalia and Alito and Chief Justice Roberts were safely on the side of free speech; Justices Justice Souter surprisingly led the charge against California’s interpretation of labor law; Justice Breyer, though skeptical, will likely write his own opinion agreeing in the Court’s opinion for separate reasons or possibly calling for remand rather than strict reversal; and Justice Thomas was silent but is expected to join the majority. On the other side, Justices Stevens and Ginsberg seem to have no problem with California’s regulation. On his own side as usual, Justice Kennedy’s vote seems to be up for grabs, but – based on his decisions in previous labor and regulatory preemption cases – I would bet on him siding with the majority.
In short, California employers will live to speak another day.
[Cross-posted at Cato's blog.]
Well, that’s precisely what the great state of California is trying to do with a new statute that small businesses are challenging in the case of Chamber of Commerce v. Brown. It’s a little bit more complicated than I outline above because the case implicates highly technical provisions of the National Labor Relations Act (and previous Supreme Court interpretations thereof), but the gist is that California is attempting to silence employers by tying speech restrictions to unrelated state spending. For reasons that the petitioners ably present in their briefs and that I summarize in a podcast and in Cato’s own amicus brief, the Supreme Court should strike down this statute.
In any event, that’s the background to my trip to the Court to hear argument in Chamber v. Brown today. (The plaza in front of the courthouse steps was remarkably free of demonstrators after yesterday’s hoopla surrounding the DC Gun Ban case.) I’ll save you the detailed summary of the argument, but suffice it to say that the outcome will almost certainly go against California. It’s always dicey predicting the scorecard, but based on oral argument it will probably be 7-2, 6-3, or maybe 6-1-2. On one side, Justices Scalia and Alito and Chief Justice Roberts were safely on the side of free speech; Justices Justice Souter surprisingly led the charge against California’s interpretation of labor law; Justice Breyer, though skeptical, will likely write his own opinion agreeing in the Court’s opinion for separate reasons or possibly calling for remand rather than strict reversal; and Justice Thomas was silent but is expected to join the majority. On the other side, Justices Stevens and Ginsberg seem to have no problem with California’s regulation. On his own side as usual, Justice Kennedy’s vote seems to be up for grabs, but – based on his decisions in previous labor and regulatory preemption cases – I would bet on him siding with the majority.
In short, California employers will live to speak another day.
[Cross-posted at Cato's blog.]
Thursday, March 13, 2008
Keystone Cops, D.C. Auxiliary
In a new plan to combat crime on the streets of our fair city, Mayor Adrian Fenty and Police Chief Cathy Lanier are encouraging residents to submit to voluntary searches of their homes in exchange for amnesty if the residents have illegal guns (or drugs). (”Excuse me, ma’am, mind if I take a look around… “)
Well, this isn’t illegal — consent is, after all, one of the exceptions to the warrant requirement — but it is head-scratchingly poor public policy. Those who don’t want to give up their contraband won’t consent to searches, those who want to get rid of it will find a way to do that without signaling “check here again next week,” and the police will waste their resources rifling through the homes of people with nothing to hide.
Maybe D.C. should pass a law outlawing gun ownership. Oh wait, they already did that and are fighting to keep it in the face of, um, the Second Amendment. (The Supreme Court hears argument in D.C. v. Heller next Tuesday.)
The bottom line is that voluntary home searches, like outright gun prohibitions, only hurt law-abiding citizens. Those who have already chosen to engage in crime will not be deterred merely because their actions violate gun-related ordinances in addition to the laws against robbery, rape, murder, etc. The only guns swept up in this “amnesty” will be those kept by people trying to protect their families from the criminals the police fail to catch.
[Cross-posted at Cato's blog.]
Well, this isn’t illegal — consent is, after all, one of the exceptions to the warrant requirement — but it is head-scratchingly poor public policy. Those who don’t want to give up their contraband won’t consent to searches, those who want to get rid of it will find a way to do that without signaling “check here again next week,” and the police will waste their resources rifling through the homes of people with nothing to hide.
Maybe D.C. should pass a law outlawing gun ownership. Oh wait, they already did that and are fighting to keep it in the face of, um, the Second Amendment. (The Supreme Court hears argument in D.C. v. Heller next Tuesday.)
The bottom line is that voluntary home searches, like outright gun prohibitions, only hurt law-abiding citizens. Those who have already chosen to engage in crime will not be deterred merely because their actions violate gun-related ordinances in addition to the laws against robbery, rape, murder, etc. The only guns swept up in this “amnesty” will be those kept by people trying to protect their families from the criminals the police fail to catch.
[Cross-posted at Cato's blog.]
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