December 29, 2010
House Republicans and the Constitution
House Republicans yesterday released a proposed rules package for the 112th Congress that included two items related to the Constitution: Republicans have proposed a reading of the Constitution on the floor on January 6; and they have proposed a requirement that all bills contain a reference to Congress's constitutional authority to enact the legislation. (The package includes several other important proposed rules, including proposed rules that would increase transparency and rules that would limit spending by replacing the PayGo rule with a "cut-go" rule.)
The Republicans' goal is "to refocus members of Congress, with every bill they introduce, on the Constitution." Whatever one thinks about this--a laudable goal, or a thinly veiled attempt to promote just one interpretation of the Constitution--it's unnecessary. House members already take an oath to support the Constitution, and House rules (Rule XIII, 3(d)(1)) already require committee reports on bills to name the congressional authority for the legislation. (The proposed rules do away with this latter requirement.)
December 28, 2010
Guantanamo Transfers and the Separation of Powers
President Obama last week signed a defense authorization bill that prohibits the use of federal funds to transfer any Guantanamo detainee into the United States, even for the purpose of prosecution in an Article III court.
The provision raises serious separation-of-powers concerns. As David Rivkin and Lee Casey wrote last week in the Wall Street Journal:
The president is the chief federal law enforcement officer and prosecutor. Whether, where and when to bring a particular prosecution lies at the very core of his constitutional power. Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress's wishes rather than his own violates the Constitution's separation of powers.
Peter Margulies came to a similar conclusion writing this fall on Lawfare (but on different legislation):
A congressional limit on transfers for criminal prosecution would upset this careful balance. Prosecutors might well believe that a prosecution in a civilian court for terrorism-related offenses would be the most appropriate path for particular detainees. . . . A bar on civilian trials would also preclude a civilian jury, and make a military commission the sole mode of trial available. Military proceedings can be fair, but a conressional requirement that they be the sole mode of trial for conduct that has already occurred singles out current detainees for harsh treatment, and therefore would violate the Bill of Attainder Clause.
The administration itself raised these concerns just this month. AG Holder wrote to Senators Reid and McConnell:
[The prohibition] is an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects. . . . [It] would undermine my ability as Attorney General to prosecute cases in Article III courts, thereby taking away one of our most potent weapons in the fight against terrorism. . . . The exercise of prosecutorial discretion has always been and must remain an Executive branch function.
December 27, 2010
Sotomayor and Kagan as Newsworthy
Justices Kagan and Sotomayor are newsworthy subjects in these waning days of 2010, and not only because they are half of the number of women who have ever served on the United States Supreme Court (as pictured below).
Nina Totenberg of NPR's Morning Edition had an discussion of Kagan's first months on the Court: although Kagan "has not written any opinions that have yet seen the light of day," she "already has big fans among her colleagues, from the conservative Justice Antonin Scalia to the liberal Justice Ruth Bader Ginsburg." And, Kagan herself is now "relaxed and so able to be herself," because she is "no longer calculating the personal odds of advancement." The 7 minute story is here; and it quotes from the C-SPAN interview with Kagan from earlier in December here.
Meanwhile, Joan Biskupic at USA TODAY and Adam Liptak at NYT are discussing Sotomayor as evinced by her dissents from denials of certiorari. Both Biskupic and Liptak highlight Pitre v. Cain, a prisoner's case, which we discussed here profiling a Linda Greenhouse opinion piece. Biskupic's article describes Sotomayor's "fervent statements protesting the majority's refusal to take some appeals, particularly involving prisoners."
Biskupic and Liptak discuss the seven cases in which there are dissents from denials of certiorari. Biskupic profiles each case in which Justices dissented from the denials of certiorari, noting that while Sotomayor has been the most frequent dissenter, Justice Alito "has been a close second this term in publicly objecting when the majority declines a case. He protested in three cases and authored the opinion in two. On criminal matters, he tends to favor law enforcement."
Liptak phrases it this way: "Not a single member of the court’s four-member liberal wing joined any of the three opinions written by a conservative justice. And not a single member of the court’s four-member conservative wing joined any of the four opinions written by a liberal justice."
Both Liptak and Biskupic also discuss Sotomayor's argument style: assertive.
(image: from left to right, former Justice O'Connor, Justices Sotomayor, Ginsburg, and Kagan, in 2010, via)