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Constitutional Limits on State's foreign affairs activities
Douglas Kysar (YLS) and Bernadette Meyler (Cornell) have a new paper up at SSRN. The paper is also published in the UCLA Law Review: Kysar, Douglas A. and Meyler, Bernadette A., "Like a Nation State"
UCLA Law Review, Vol.55, No. 6, 2008.
Here's the abstract:
Using California's self-consciously internationalist approach to
climate change regulation as a primary example, this Article examines
constitutional limitations on state foreign affairs activities. In
particular, by focusing on the prospect of California's establishment
of a greenhouse gas (GHG) emissions trading system and its eventual
linkage with comparable systems in Europe and elsewhere, this Article
demonstrates that certain constitutional objections to
extrajurisdictional linkage of state GHG emissions trading systems and
the response that these objections necessitate may be more complicated
than previously anticipated. First, successfully combatting the Bush
Administration's potential claim that state-level climate change
activities interfere with a federal executive position of withholding
binding domestic GHG reductions in advance of a multilateral agreement
including key developing nations, will require demonstrating that the
executive branch is not acting with congressional support and has,
furthermore, declared its position too informally to constitute an
exercise of any of the president's independent constitutional powers.
Second, state efforts to link GHG emissions trading systems with those
of other nations may well take them into territory abutting that which
is constitutionally impermissible under the foreign affairs and Foreign
Commerce Clause doctrines. Finally, state efforts to integrate with
other trading schemes or to otherwise protect the integrity of their
own trading schemes must be carefully constructed lest they invite
challenge as being discriminatory or overreaching, in light of more
conventional dormant Commerce Clause constraints on state regulation.
The Law Library of Congress is hosting two articles by Louis Fisher on Constitutional problems raised by the military commissions/tribunals authorized by President Bush. The site also provides reference to two book-length treatments of the subject by Fisher.
The Law Library of Congress is making a habit of this
More great information from the Law Library of Congress, this time on the State Secrets Privilege. Here you will find links to several articles, statements, and other material by Louis Fisher regarding the privilege in this decade.
Dean Harold Koh Comments on Recent High Court Decision Regarding Treaties
"[A]ll Treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and the judges in
every state shall be bound thereby, anything in the Constitution or
laws of any State to the contrary notwithstanding." U.S. CONST. art. VI. However, when the Senate ratifies a
treaty with a two-thirds vote, does that mean the treaty provisions are
binding on the states? According to a new ruling by the Supreme Court, they are binding only if the treaty explicitly says so or if there is legislation to make that clear.
The decision is Medellín v. Texas, at is available at: http://www.supremecourtus.gov/opinions/07pdf/06-984.pdf As a background note, in the Case Concerning Avena and Other Mexican Nationals (Mex.U.S.), 2004 I.C.J. 12 (
Avena ), the International Court of Justice (ICJ) held that
the United States had violated Article 36(1)(b) of the Vienna
Convention on Consular Relations (Vienna Convention or Convention) by
failing to inform 51 named Mexican nationals, including petitioner
Medellín, of their Vienna Convention rights. The ICJ found that those
named individuals were entitled to review and reconsideration of their
U.S. state-court convictions and sentences regardless of their failure
to comply with generally applicable state rules governing challenges to
criminal convictions. In Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) issued after
Avena but involving individuals who were not named in the
Avena judgment-the Supreme Court held, contrary to the ICJ's
determination, that the Convention did not preclude the application of
state default rules. The President then issued a memorandum stating that the United States
would “discharge its international obligations” under
Avena “by having State courts give effect to the decision. ”Relying on
the President's Memorandum, Medellín filed a second Texas
state-court habeas application challenging his state capital murder
conviction and death sentence on the ground that he had not been
informed of his Vienna Convention rights. The Texas Court of Criminal
Appeals dismissed Medellín's application as an abuse of the writ,
concluding that neither
Avena nor the President's Memorandum was binding federal law
that could displace the State's limitations on filing successive habeas
applications. On Tuesday, the Supreme Court ruled that neither
Avena nor the President's Memorandum constitutes directly
enforceable federal law that pre-empts state limitations on the filing
of successive habeas petitions.
Yale Law School Dean Harold Koh, who served as a State Department
official in the Clinton administration, expressed some concerns over the decision in a statement to National Public Radio: "If our
international allies have no assurance that we're actually going to
keep our word, then they have much less incentive to keep their word
when they're being obliged to do something." To listen to the entire NPR story, go to: http://www.npr.org/templates/story/story.php?storyId=89064847
For more information on treaty research, please see: Marci Hoffman, Researching U.S. Treaties and Agreements (LLRX, May 15, 2001) available at: http://www.llrx.com/features/ustreaty.htm
The English Bill of Rights - a bill of responsibilities!
This is really interesting. The proposed new British Bill of Rights looks
increasingly like a bill of responsibilities. Responsibilities that
are enforceable in court!
More from The Guardian:
A new British bill of rights and duties may include duties of
behaviour between fellow citizens that are enforceable by judges, the
justice secretary Jack Straw indicated yesterday. Straw, also lord
chancellor, is planning a British bill of rights to complement the
European convention on human rights. The exercise is separate from a
possible 20-year plan to introduce a potential British written
Straw made his remarks in a speech at George Washington University,
Washington DC, where he also indicated that a written constitution was
20 years away. He said he was looking at a US-style sentencing
commission that might take into account the size of the prison
population in making broad decisions on sentencing.
The Guardian gets into the constitutional conversation
The constitutional conversation is getting interesting. Here The Guardian gets in its two cents (is that pence?):
Evolution not revolution is the way for constitutions to develop -
except, perhaps, at times in history when a real revolution is under
way. That was the message of justice secretary Jack Straw yesterday, as
he spoke to a Washington audience. The tumultuous circumstances of
American independence allowed the founding fathers to build up enduring
rules from first principles; in more ordinary times a constitution
written on a blank sheet will provide only a paper barrier against the
abuse of power.
Fall-Out from Straw's constitutional comments
That didn't take long. Responses to Straw's comments are coming fast
and furious. This will be interesting to watch. Here is an article in
What a difference a few hours make. In the morning, Jack Straw’s
heavily qualified hints about working towards a written constitution
were welcomed by Unlock Democracy, a leading reform group. Then, in the
afternoon, Mr Straw’s full speech, entitled “Modernising the Magna
Carta”, received a more hostile response: “what a load of cobblers,” as
the OurKingdom website put it.
Jack Straw discusses a written constitution for Britain
Jack Straw discussed the
future of the British constitution and bill of rights and
responsibilities on BBC yesterday. The Guardian picks it up:
Britain is unlikely to have a full written constitution for at
least 10 or 20 years, the justice secretary, Jack Straw, said today.
He confirmed that he is drawing up plans for a draft bill of rights
and responsibilities, which would set down in one document the rights
that citizens have, and also their civic duties.
But he stressed that this would not be the same as a new written constitution, such as America's.