NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Friday, March 28, 2008 ::
Here's the passage from the U.S. v. Ressam oral argument that I was referring to:JUSTICE SCALIA: General, could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?
GENERAL MUKASEY: A statute like that would be entirely unreasonable. It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you've added something enormously volatile.
JUSTICE SCALIA: Surely it depends on what the felony is. If the felony is the filing of a dishonest tax return and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony. That's what troubles me about this. I'm tempted to -- I think everybody is tempted to distort the "during" to mean something else, simply because the consequences of performing a completely lawful act wearing a wristwatch, carrying explosives -- given the broad definition of explosives, I guess it would include having -- having some cartridges, explosive cartridges?
GENERAL MUKASEY: It would. But the temptation --
JUSTICE SCALIA: That's perfectly lawful, and you get another 10 years for it just because you're mailing a letter to the IRS at the same time.
GENERAL MUKASEY: It is perfectly lawful. Congress was aware that Title 18, not to mention all the other titles, are chockablock with felonies. There are thousands of them out there. But nonetheless, it wanted to make sure that the mainstream that it was concerned with, which is nicely illustrated by the facts of this case, were taken care of; and so it passed a very broad statute. We concede that it was a very broad statute. "Any felony" couldn't be broader. But that was Congress's choice. And if
Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.
So, the AG has made two points:
(1) If you mail a false income tax return while you have can of gasoline in your car (or maybe just enough gas in your tank to get to the mailbox?), you can get an extra ten years tacked onto your sentence for that.
(2) Congress has made pretty much everyone a federal felon, and it did so in order for U.S. Attorneys to have the "tools" they "need" to go after the ones that in the "mainstream" we're "concerned with."
:: David M. Wagner 12:13 PM [+] ::
...
:: Thursday, March 27, 2008 ::
Scalia Criticizes News Media, the news media are reporting (guess who's going to win this round).At a conference of attorneys in Washington, Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.
He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."
Well yeah, and it's an old, old problem. Even at the supposedly highest levels of journalism, no one cares about the law in reporting legal cases: the human drama, which of course is part of the story, becomes the entire story. As if there were no written or unwritten law to go on, and an injured plaintiff were simply kneeling before the Court and asking "Do Your Honors think it would be a good thing or a bad thing if I were compensated for my injuries?"
And if the ruling is that Congress didn't intend to protect plaintiffs in this category (leaving them, perhaps, to state remedies), or that the Due Process Clause doesn't oblige state government to come to their aid, or that a particular plaintiff is not among those who have an excuse for missing a well-known filing deadline, or whatever other grounds might exist under a rule-of-law system for denying relief in a particular case, all that the New York Times-reading caste -- the people who rule us -- ever learn about the matter, over their coffee or in their taxicab, is that the "conservative" Court just tossed another widow into the snow.
Meanwhile, apparently beneath the NYT's radar screen, Justice Scalia has lambasted Attorney General Mukasey for trying to add ten years to a "lying to a federal official" offense because it was committed while possessing a firearm:The case involved the so-called "Millennium Bomber," Ahmed Ressam, who tried to smuggle explosives into the United States from Canada. A jury convicted Ressam on nine counts, including carrying explosives during a felony (lying to an immigration agent). Ressam's lawyers argued that the lie was not related to the explosives, so count nine should be thrown out for sentencing purposes.
Justice Ruth Bader Ginsberg asked Mukasey, who was a federal judge for almost 20 years, why prosecutors tied the explosives charge to the false statements in the first place, "instead of some charges with which it would have been more logically linked," like conspiracy to commit an act of terrorism.
Mukasey said the evidence supporting the false statements charge "was, to use a colloquialism, a lead pipe cinch. He had clearly made a false statement. He had clearly carried an explosive while doing it." Prosecutors wanted a charge on which jurors were sure to convict him.
Justice Antonin Scalia asked, "If the felony is the filing of a dishonest tax return, and you have a can of gasoline with you when you mail the letter," can you get another 10 years added to your sentence just because technically you were carrying explosives?
Chief Justice John Roberts asked whether there's a Justice Department policy not to bring those kinds of absurd prosecutions.
"Not that I'm aware of," Mukasey responded.
:: David M. Wagner 6:43 PM [+] ::
...
:: Tuesday, March 25, 2008 ::
From the Chief's opinion for the Court in Medellin:A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not “express[ly] or implied[ly]” vest the President with the unilateral authority to make them self-executing. See [Youngstown] at 635 (Jackson, J., concurring). Accordingly, the President’s Memorandum does not fall within the first category of the Youngstown framework.
And, distinguishing Dames & Moore v. Regan:The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” can “raise a presumption that the [action] had been [taken] in pursuance of its consent.” Dames & Moore, supra, at 686 (some internal quotation marks omitted)....
Even still, the limitations on this source of executive power are clearly set forth and the Court has been careful to note that “[p]ast practice does not, by itself, create power.” Dames & Moore, supra, at 686.
...Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws....
I'll only have time to eyeball the dissent briefly today. Far more law-review articles are cited there than in the opinion of the Court. What do you expect? If you want support for the proposition that public international law reduces everything else -- including the traditional police powers of the states, including the U.S. Constitution itself -- to mere and interchangeable "municipal law," you have to go to "the commentators," because actual sources of American law won't help you very much.
:: David M. Wagner 1:23 PM [+] ::
...
Reading over Medellin right now. Looks like the right outcome: even for us Curtiss-Wrightists, the presidential claims here went far indeed. But because the domestic application of international public law was also at stake, the role-reversal within the Court is pretty much complete, with the liberal wing supporting presidentialism as long as it's twinned with womping Texas with a treaty. At least that's my first take.
Also -- way to hand down a controversial decision before the last week in June, Roberts Court!
:: David M. Wagner 1:01 PM [+] ::
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:: Friday, March 21, 2008 ::
Not the D.C. v. Heller Oral Argument. (Hat-tip: TKB)
:: David M. Wagner 12:31 AM [+] ::
...
:: Sunday, March 16, 2008 ::
The Founders and their agents. From NRO/rotflmao.
:: David M. Wagner 1:16 AM [+] ::
...
JUSTICE SCALIA: General, could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?So, the AG has made two points:
GENERAL MUKASEY: A statute like that would be entirely unreasonable. It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you've added something enormously volatile.
JUSTICE SCALIA: Surely it depends on what the felony is. If the felony is the filing of a dishonest tax return and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony. That's what troubles me about this. I'm tempted to -- I think everybody is tempted to distort the "during" to mean something else, simply because the consequences of performing a completely lawful act wearing a wristwatch, carrying explosives -- given the broad definition of explosives, I guess it would include having -- having some cartridges, explosive cartridges?
GENERAL MUKASEY: It would. But the temptation --
JUSTICE SCALIA: That's perfectly lawful, and you get another 10 years for it just because you're mailing a letter to the IRS at the same time.
GENERAL MUKASEY: It is perfectly lawful. Congress was aware that Title 18, not to mention all the other titles, are chockablock with felonies. There are thousands of them out there. But nonetheless, it wanted to make sure that the mainstream that it was concerned with, which is nicely illustrated by the facts of this case, were taken care of; and so it passed a very broad statute. We concede that it was a very broad statute. "Any felony" couldn't be broader. But that was Congress's choice. And if
Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.
(1) If you mail a false income tax return while you have can of gasoline in your car (or maybe just enough gas in your tank to get to the mailbox?), you can get an extra ten years tacked onto your sentence for that.
(2) Congress has made pretty much everyone a federal felon, and it did so in order for U.S. Attorneys to have the "tools" they "need" to go after the ones that in the "mainstream" we're "concerned with."
:: David M. Wagner 12:13 PM [+] ::
...
At a conference of attorneys in Washington, Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.Well yeah, and it's an old, old problem. Even at the supposedly highest levels of journalism, no one cares about the law in reporting legal cases: the human drama, which of course is part of the story, becomes the entire story. As if there were no written or unwritten law to go on, and an injured plaintiff were simply kneeling before the Court and asking "Do Your Honors think it would be a good thing or a bad thing if I were compensated for my injuries?"
He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."
And if the ruling is that Congress didn't intend to protect plaintiffs in this category (leaving them, perhaps, to state remedies), or that the Due Process Clause doesn't oblige state government to come to their aid, or that a particular plaintiff is not among those who have an excuse for missing a well-known filing deadline, or whatever other grounds might exist under a rule-of-law system for denying relief in a particular case, all that the New York Times-reading caste -- the people who rule us -- ever learn about the matter, over their coffee or in their taxicab, is that the "conservative" Court just tossed another widow into the snow.
Meanwhile, apparently beneath the NYT's radar screen, Justice Scalia has lambasted Attorney General Mukasey for trying to add ten years to a "lying to a federal official" offense because it was committed while possessing a firearm:
The case involved the so-called "Millennium Bomber," Ahmed Ressam, who tried to smuggle explosives into the United States from Canada. A jury convicted Ressam on nine counts, including carrying explosives during a felony (lying to an immigration agent). Ressam's lawyers argued that the lie was not related to the explosives, so count nine should be thrown out for sentencing purposes.
Justice Ruth Bader Ginsberg asked Mukasey, who was a federal judge for almost 20 years, why prosecutors tied the explosives charge to the false statements in the first place, "instead of some charges with which it would have been more logically linked," like conspiracy to commit an act of terrorism.
Mukasey said the evidence supporting the false statements charge "was, to use a colloquialism, a lead pipe cinch. He had clearly made a false statement. He had clearly carried an explosive while doing it." Prosecutors wanted a charge on which jurors were sure to convict him.
Justice Antonin Scalia asked, "If the felony is the filing of a dishonest tax return, and you have a can of gasoline with you when you mail the letter," can you get another 10 years added to your sentence just because technically you were carrying explosives?
Chief Justice John Roberts asked whether there's a Justice Department policy not to bring those kinds of absurd prosecutions.
"Not that I'm aware of," Mukasey responded.
:: David M. Wagner 6:43 PM [+] ::
...
A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not “express[ly] or implied[ly]” vest the President with the unilateral authority to make them self-executing. See [Youngstown] at 635 (Jackson, J., concurring). Accordingly, the President’s Memorandum does not fall within the first category of the Youngstown framework.And, distinguishing Dames & Moore v. Regan:
The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” can “raise a presumption that the [action] had been [taken] in pursuance of its consent.” Dames & Moore, supra, at 686 (some internal quotation marks omitted)....I'll only have time to eyeball the dissent briefly today. Far more law-review articles are cited there than in the opinion of the Court. What do you expect? If you want support for the proposition that public international law reduces everything else -- including the traditional police powers of the states, including the U.S. Constitution itself -- to mere and interchangeable "municipal law," you have to go to "the commentators," because actual sources of American law won't help you very much.
Even still, the limitations on this source of executive power are clearly set forth and the Court has been careful to note that “[p]ast practice does not, by itself, create power.” Dames & Moore, supra, at 686.
...Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws....
:: David M. Wagner 1:23 PM [+] ::
...
Also -- way to hand down a controversial decision before the last week in June, Roberts Court!
:: David M. Wagner 1:01 PM [+] ::
...
:: David M. Wagner 12:31 AM [+] ::
...
:: David M. Wagner 1:16 AM [+] ::
...
