Archive for the Rule of Law Category

Jack Goldsmith

Just about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.

What a terrible idea for the President to charge the Supreme Court with an “unprecedented, extraordinary step” of judicial activism if it strikes down parts of the health care law.  It was not a bad idea because it constituted bullying of the Court.  It was a bad idea – at least from the President’s perspective – because it makes it harder for the Justices to rule in favor of the President’s position.  After his very public criticism, a vote to uphold the law by the Justices who sharply questioned the law at oral argument will invariably be seen as cowing to the President – an appearance, I am confident, the Justices very much want to avoid.  In other words, by questioning the Justice’s independence, the President made it harder for the Justices whose votes he needs to act in his favor.  That, I suspect, is why the President has tried to walk back his remarks.

Also surprising to me are conservative protests that the President has crossed the line in criticizing the Court as activist.  President Obama was entirely accurate when he said: “I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”  However imprudent and impolitic the President’s remarks, he was in essence mouthing a central conservative complaint about the judiciary since the 1950s.  (I realize that matters are more complicated than this, but during the Obama years many conservatives have indeed been moving away from a jurisprudence of restraint.)  Conservatives were on firmer ground in criticizing the inaccuracy of the president’s claim that striking down the health care law “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  And of course it is odd for President Obama to implicitly embrace judicial restraint as a matter of principle.

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David Davenport

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.” This closes off, for now, an attempt by
Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.

But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state. To that the answer is “no, for now.”

The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation. But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.

The Prosecutor, Luis Moreno-Ocampo, seriously entertained the question for three years, following a remarkable prosecutorial process of inviting outside submissions, posting briefs on the Internet, and hosting roundtable arguments in his offices in the Hague. He seemed open to the possibility that the definition of “State” for purposes of the ICC might be different than a “State” in international law generally. He spent three years looking at arguments that Palestine possessed this or that mark of statehood. One sensed that he was under political pressures to open the doors of the Court more widely to take this case.

In the end, the Prosecutor said it was really up to the United Nations to decide what is a “State” and that, so far, Palestine was only treated there as an observer. It thus becomes a political decision for the U.N., rather than a legal decision for an international
court, which was surely the right answer all along. The lengthy process for what should have been a straightforward decision reminds us of the dangers of these politicized and expansionist international courts.

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Jack Goldsmith

Just about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.

What a terrible idea for the President to charge the Supreme Court with an “unprecedented, extraordinary step” of judicial activism if it strikes down parts of the health care law.  It was not a bad idea because it constituted bullying of the Court.  It was a bad idea – at least from the President’s perspective – because it makes it harder for the Justices to rule in favor of the President’s position.  After his very public criticism, a vote to uphold the law by the Justices who sharply questioned the law at oral argument will invariably be seen as cowing to the President – an appearance, I am confident, the Justices very much want to avoid.  In other words, by questioning the Justice’s independence, the President made it harder for the Justices whose votes he needs to act in his favor.  That, I suspect, is why the President has tried to walk back his remarks.

Continue reading Jack Goldsmith…

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Michael McConnell

O’s ugly ‘warning’

By all accounts, President Obama’s lawyers did a poor job of defending the constitutionality of his signature health-care-reform law in the Supreme Court last week. So he’s rearguing the case himself. On Monday, he declared that it would be an “unprecedented, extraordinary step” for the court to overturn a law “passed by a strong majority of a democratically elected Congress.”

This statement is puzzling, to say the least. It is by no means “unprecedented” or “extraordinary” for the court to strike down the act of a democratically elected legislature.

Has the president not heard of Roe v. Wade (1973), where the court invalidated the democratically enacted laws of all 50 states? And even Marbury v. Madison (1803), which struck down a section of the First Judiciary Act?

How about INS v. Chadha (1983), where the court invalidated over 200 statutory provisions, many enacted by overwhelming bipartisan majorities?

Is the president unaware that the court in recent years has declared unconstitutional the Line Item Veto Act (struck down in 1998), major portions of the Sentencing Reform Act (2005), the Religious Freedom Restoration Act (1997) and two different attempts at campaign-finance law (in 1976 and 2010) — just to name some of the most prominent?

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Diana Schaub

The U.S. Constitution is, as Justice Ruth Bader Ginsburg has recently reminded us, “a rather old constitution.” In her parlance, old does not mean venerable or worthy of imitation. Speaking on Egypt’s Al Hayat TV, she advised constitution-drafting Egyptians to look to newer models; she singled out the Constitution of South Africa (1996), Canada’s Charter of Rights and Freedoms (1982), and the European Convention on Human Rights (1950).

Admittedly, the oath she swore to “bear true faith and allegiance” to the U.S. Constitution does not require Justice Ginsburg to recommend its adoption by all and sundry. There might be good reasons—rooted in history and circumstance—why a constitution suited to one people is not suited to another. Laws ought to be in accord with the general spirit of a nation, as Montesquieu, the great theorist of modern constitutionalism, argued. This was not the Justice’s point, however. She thinks there are blueprints worthy of export, just not the one ratified by Americans in 1787.

Her opinion is the fashionable one. A forthcoming article in the New York University Law Review confirms the declining influence of the U.S. Constitution. The reason?—“it is increasingly out of sync with an evolving global consensus on issues of human rights,” authors David S. Law and Mila Versteeg argue. This focus on rights (the more, the better) is evident in the documents Ginsburg endorsed. Two of them aren’t even constitutions in the usual sense of a plan of government. Instead, one is a supranational convention about human rights; another is a national charter of rights (added to the Canadian Constitution of 1867 when Canada, in 1982, finally became fully independent of the British Parliament).

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Richard Epstein

Observations on ObamaCare

There are a number of constitutional and logical slips in the seductive argument that Paul Krugman puts forward in favor of the constitutionality of the individual mandate.  First, the question why any form of health insurance involves a question of “interstate commerce” at all.  Under the current elastic and indefensible definitions of interstate commerce, any form of local activity that influences the quantity and price of goods in interstate commerce becomes itself a form of interstate commerce, at which point there is precious little that lies outside that domain.

Note the potential reach of this argument  by the standard definition that Krugman embraces, getting sick and buying insurance influences the ability of the United States to deal with foreign nations, so that Congress can presumably regulate it as a form of commerce with foreign nations.  More impressively, since the health of their populations influences health in this country, why not say that the Constitution gives the Congress the power to expand the health care benefits that Canada, Great Britain and the rest of the world supplies to their own population.  It is a form of constitutional newspeak to treat all these local activities as though they were commerce among the several states, when they are, most emphatically anything but.

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David Davenport

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.”  This closes off, for now, an attempt by Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.

But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state.  To that the answer is “no, for now.”

The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation.  But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.

Click to read more.

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Laura Huggins

The big brown trout I was fishing for yesterday on the Limay River in Patagonia was nowhere to be found but I did manage to come across an old hang out of Butch Cassidy.

Being from Montana, where the Hole-in-the-Wall Gang pulled off their last job—a holdup of a Union Pacific train—before fleeing to South America, I was happy with this historical catch.

Legend has it that Butch became friends with Jarred Jones who ventured down to Argentina from Texas in 1887 to make his fortune. Jones didn’t find gold but he did manage to open a general storeat the mouth of the Limay. The old store, which is now a friendly restaurant, still holds the shops books, old photos, and a frontier atmosphere of a century ago.

Jones earned enough money at the store to purchase two big ranches, which he fenced off with barbed wire—the first to be seen around these parts. Today, barbed wire is strung across much of the 98 million hectares of the Patagonian Steppe to enclose vast quantities of sheep.

Unfortunately, a flock of sheep can gobble up great expanses of native grasses, and in southern Argentina, they’re clearing some serious vegetation. In addition to vegetation loss, overgrazing equates to lost habitat for other animals, and damages waterways with runoff and silt from erosion, which affects the fish, which affects tourism.

Continue reading Laura Huggins…

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