Wednesday, July 22, 2009

Government's Handling of Detainee Jawad's Case is an "Outrage"

Judge Ellen Segal Huvelle (D.D.C.) held a hearing last week in Guantanamo detainee Mohammed Jawad's habeas case in which she lambasted the government for its most recent gambit: A motion to amend its statement of facts supporting its case against Jawad.  The NYT posted the hearing transcript here

When detained, Jawad was the youngest detainee at Guantanamo Bay; the government has held him for over seven years.  His military commission trial got caught between the Bush administration's military commission system and the Obama administration's efforts to revamp it and to consider other options for Guantanamo detainees.  The case was so bad that the former lead military prosecutor left the military commission last year and submitted a 14-page statement describing Jawad's torture in U.S. custody and stating that the flaws in the military commission system made it impossible "to harbor the remotest hope that justice is an achievable goal."  (I posted on Jawad's case most recently here.)

In Jawad's habeas case, Judge Huvelle most recently granted Jawad's unopposed motion to suppress his inculpatory statements.  Now every one of Jawad's inculpatory statements is out, apparently leaving the government with only the barest trace of a case.

Last week's hearing focused on the government's motion to amend its statement of facts supporting Jawad's continued detention.  The government's DOJ prosecutors asked for more time to consult internally about how to proceed after discovering "new" information--new, apparently, to the DOJ, but already released in Jawad's military commission case.  (Yes, you read that right.)

Given this background, Judge Huvelle understandably expressed deep, deep frustration with the government's move.  (Take a look at the transcript for yourself.  I'd excerpt portions, but I'm afraid I'd end up excerpting the whole thing.)  Nevertheless, she granted the motion and set a merits hearing for August 5. 

If the government doesn't pull any more tricks--and Judge Huvelle specifically ruled out transferring the case to the Southern District of New York, presumably for a regular Article III criminal trial--the government will have to meet the Obama administration's new (but only slightly revised) standard for detention.  And it will have to meet the standard with live witnesses, according to Judge Huvelle's statements at the hearing.

Government attorneys didn't reveal much about their legal positions on Judge Huvelle's instructions.  But take a look at this claim by one of them: "Your Honor, this is a war time habeas proceeding.  So it is not a normal situation where you call live witnesses."  The claim is reminiscent of the Bush administration's seemingly catch-all position that the government can do what it wants because this is war.  Like many, Judge Huvelle was unpersuaded.  In response to the claim, she simply told the DOJ attorney, "Fine, don't."


July 22, 2009 in News, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Lincoln's Constitution Seminar

Designed for graduate students and junior faculty in history, political science, law and related disciplines, the New York Historical Society (in NYC)  will be hosting the seminar Lincoln’s Constitution on Thursday afternoons from 1:00 to 3:00 p.m, on September 17 and 24 and on October 1, 15, 22, and 29, 2009.
The seminar will be taught by  Akhil Reed Amar (Yale College and Yale Law School) and James Oakes (CUNY Graduate Center), who is the author of The Radical and the Republican: Frederick
Douglass, Abraham Lincoln and the Triumph of Antislavery Politics
, as well as The Ruling Race: A History of American Slaveholders.

Picture 1

The deadline to apply is August 30.  More information here.

There will also be an exhibit "Lincoln and New York" beginning October 9.


July 22, 2009 in Conferences, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, History, News, Reconstruction Era Amendments, Scholarship, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 21, 2009

What Judge Sotomayor Didn't Say about Congress's Unenumerated Powers

Judge Sotomayor offered her thoughts about congressional authority, the Tenth Amendment, and enumerated powers in this written exchange with Senator Coburn:

How do you reconcile the tension between an enumerated power, the Tenth Amendment, and the Commerce Clause?

Response:  The Interstate Commerce Clause is one of the constitutionally enumerated sources of congressional power.  Within the scope of that and other sources of federal legislative power, Congress has broad authority.  But the constitutional enumeration of federal legislative power is also a limitation: Congress has no authority to legislate except pursuant to a constitutionally enumerated source of power.  See Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C.J.) ("The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.").  This is a critical feature of our constitutional federalism.  The Tenth Amendment underscores this point by providing that "[t]he powers not delegated to the [United States] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

But Judge Sotomayor didn't say anything about another quote from McCulloch v. Maryland and the Necessary and Proper Clause:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

This quote appeared most recently in a couple of concurrences by Justice Thomas in Gonzales v. Raich (upholding the federal Controlled Substances Act over the state Compassionate Use Act, permitting the use of medical marijuana) and Sabri v. U.S. (upholding the federal bribery prohibition on the use of federal funds).


July 21, 2009 in Commerce Clause, Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Sotomayor on Whether Roe "Made Law"

Judge Sotomayor was predictably reticent in her responses to Senate Judiciary Republicans' written questions.  But several exchanges are worthy of note.  Here's one, with Senator Cornyn:

2.  In your view, did Brown v. Board of Education make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 2, I believe that the Supreme Court "interprets" law.  Brown v. Board of Education . . . is widely regarded as a correct interpretation of the constitutional command for equal protection of the laws.

3.  In your view, did Roe v. Wade make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  Cases subsequent to Roe v. Wade . . . have re-affirmed the core holding of Roe.  Cases related to termination of pregnancies continue to come before the Court, and therefore it would be inappropriate for me to comment further.

4.  In your view, did Lochner v. New York make law or did it merely interpret law?  Please explain.

Response:  As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  The reasoning in Lochner v. New York . . . has been criticized by the Supreme Court, and that case is now widely regarded as wrongly decided.

5.  In your view, did Dred Scott v. Sanford make law or did it merely interpret law?  Please explain.

Response:  As explained in my response to question 1, I believe that the Supreme Court "interprets" law, but Dred Scott v. Sandford . . . is widely regarded as wrongly decided.

6.  In your view, did Bush v. Gore make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  I would not comment on the merits of a recent Supreme Court decision.

Note Judge Sotomayor's different responses to the question on Roe and to the question on Brown.  These answers didn't need to be different.  She simply could have written that the core of both Roe and Brown have been affirmed and reaffirmed by the Court.  And she had the same good reason not to comment further on Brown that she had on Roe: Brown continues to come before the Court, most recently in the 2006 Term in Parents Involved v. Seattle School District No. 1.

It's dangerous to read too much into responses like these, especially when the questions are so obviously political (and not strictly legal, if there's a difference between the two).  But given that Judge Sotomayor could have safely answered these questions in different ways, I wonder whether her response to the question about Roe says anything about her views on its "core holding." 


July 21, 2009 in Abortion, Fourteenth Amendment, Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, July 20, 2009

Iqbal's Impact

Adam Liptak reports in the NYT on the impact of Ashcroft v. Iqbal, this term's decision dismissing a plaintiff's Bivens complaint against high-level federal officials for failure to describe with enough detail the officials' actions that led to the alleged constitutional violations.  Iqbal thus requires a more specific pleading standard for such actions, and, as we predicted when it came down, has already resulted in a number of dismissals.

Liptak reports that lower courts have cited Iqbal more than 500 times in the last two months.  Liptak:

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.  "It obviously licenses highly subjective judgments," said Stephnen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School.  "This is a blank check for federal judges to get rid of cases they disfavor."

Recall that rather than accepting the plaintiff's allegations as true in Iqbal, the Court created and interposed its own "likely explanations" between the plaintiff's factual allegations and its legal conclusions.  Thus, rather than accepting Iqbal's allegations that the defendants detained him on account of his race, religion, or national origin in violation of his First and Fifth Amendment rights, the Court wrote that

[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the [9/11 attacks] would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.

When Iqbal gives this kind of roadmap for lower courts to interpose their own explanations and defenses, it's easy to see how Professor Burbank is right: "This is a blank check for federal judges to get rid of cases they disfavor."


July 20, 2009 in News, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Sotomayor Vote - Senate Judiciary Committee

The vote on Sotomayor has been held over.
The Committee vote on the nomination of Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court is now scheduled for Tuesday, July 28, at 10:00 a.m. in room 216 of the Hart Senate Office Building.  The meeting will be webcast live online on the committee's website.


The Senate Judiciary Committee's vote on the nomination of Sonia Sotomayor is scheduled for Tuesday, July 21, at 10.00am and will be webcast live on the committee's site here.


July 20, 2009 in News | Permalink | Comments (0) | TrackBack (0)

Sunday, July 19, 2009


The questioning on "judicial values," phrased as "should judges just apply the law or should they bring their own values to the task" is not a uniquely American one.  Indeed, this is the topic on a forum to be held at The Law School of University of Sydney, Australia, August 27, details here.  

The participants include Justice Michael Kirby (former High Court Justice) and Professor Reg Graycar (University of Sydney), who were most recently discussed on Constitutional Law Prof Blog here and here, as well Professor Justin Malbon of Monash University and Bernhard Schlink.

ImageDB.cgi  Schlink, of course, is the author of the bestselling novel The Reader,  which is about a young man's affair with an older woman who is put on trial for her role in the Nazi regime.  The book was made into a popular movie in 2008.  

Schlink is not just a bestselling author, but also a Professor of Constitutional and Administrative Law and the Philosophy of Law at Berlin's Humboldt University, who was previously a justice of the Constitutional Law Court in Bonn, Germany. 

The forum event is being held in conjunction with the Sydney Writers Festival and hosted by Damien Carrick of the Australian Radio National’s "The Law Report."  The publicity frames the discussion this way:

The [Australian] High Court attracted enormous criticism after the Mabo and Wik decisions [relating to Aboriginal land claims] for changing the law to suit the personal values of the (unelected) judges. Judges during the Nazi and South African apartheid eras were criticised for merely applying the law, and were accused of being accomplices to those grotesque regimes. Should judges apply their “judicial values” to their judicial tasks?

Schlink's most recent book is Guilt About the Past, a series of six essays based on his 2008 Weidenfeld lectures at Oxford University and being published by an Australian University Press.


July 19, 2009 in Books, Comparative Constitutionalism, Conferences, Current Affairs, History, International, Interpretation, Profiles in Con Law Teaching, Theory | Permalink | Comments (0) | TrackBack (0)