Are Justices Too Powerful?

Back in February the Washington Post printed a provocative article, which began:

If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?

If you are interested in the answers that more than a few law professors in the United States give to these question, I encourage you to read the rest of the article.

Immunity from Criminal Prosecution

Students in my constitutional law courses know (or will know) that the President probably enjoys absolute immunity from criminal prosecution while he is in office. Most legal scholars maintain that the President must first be impeached before he can face criminal charges. But as this post over at the always informative Jurist website notes, judges do not enjoy the same kind of immunity from prosecution. U.S. Federal District Court Judge Samuel Kent recently was convicted of obstruction of justice related to a sexual harassment complaint filed against him. He is now serving 33 months in prison. However, Kent is still a federal court judge. Remember, the only means for removing judges in the federal system is via the impeachment process. This process, as one would expect, has already been started for his removal.

Why Marbury Still Matters

Students of American Constitutional Law learn that Article III, the part of the Constitution that created the Supreme Court, did not actually give the Court the power to review the constitutionality of actions taken by the other two branches of government. This power was derived from the court decision, arguably the most important decision in American history, Marbury v. Madison. Newsweek recently had an interesting story explaining why Marbury is still relevant some 200 years later.

More of the Same, Part 2

A few days ago I wrote about how the Obama Administration is defending of surveillance practices it inherited from the Bush Administration. But it's not just spying that apparently will remain the same. The much maligned practice of extra-ordinary rendition (the prisoner transfer program the involves kidnapping suspect terrorists and moving them to countries that have a . . . well . . . different view of torture than most western countries) apparently will also remain the government's anti-terrorism arsenal. The Los Angeles Times has more.

1 in 7 return to "terrorism"

The New York Times had a fascinating article in yesterday's paper about an internal U.S. Department of Defense report that claims 1 in 7 of the former Guantanamo detainees returns to "battlefield" against the United States. The article also talks about the dilemma facing the Obama Administration over what to do with the rest of the detainees still at Guantanamo. Some, according to experts, cannot be released and will have to face trial. But now members of Congress are balking at the idea of bringing some detainees back to the U.S. mainland for trial. In the article, F.B.I. director, Robert S. Mueller III, said that moving detainees to American prisons would bring with it risks including “the potential for individuals undertaking attacks in the United States.”

This quote left me wondering. How can moving people into American prisons increase the potential for individuals to undertake attacks in the U.S.? Does he mean the individuals who would be put in prison might engage in attacks? Or does he mean that now terrorists will have even more incentive (hard believe that is possible unless one thinks that people like Bin Laden have gone soft on the U.S.) to attack the U.S.?

Apportionment

During a recent Constitutional Law lecture in Münster, a student asked who was counted for purposes of determining a state's population with regards to apportionment of the House of Representatives. As students in most of my classes have learned (or been reminded of) at some point or another, the number of representatives each state has in the House of Representatives is determined by the population of a given state. Most students are surprised to learn that every ten years a recount of the entire U.S. population is conducted via something called a census (this recount, incidentally is required by the Constitution). But I digress.

So who counts when determining a state's population? Everyone. That's right, citizens and non-citizens, legal residents and illegal residents, registered voters and non-registered voters, adults and children. Everyone. More information is provided here by our friendly Census Bureau (the fine folks who conduct this decennial recount).

As an aside, as part of my search for this answer, I came across information concerning a movement here in Germany back in the late 1970s to introduce a census. Apparently a planned census in 1983 was halted by the Bundesverfassungsgericht. More can be found here.

The End of Affirmative Action?

The election of Barack Obama as President has some people wondering the whether programs that give preferences to racial minorities to correct for past discrimination are still necessary. National Public Radio recently hosted a half-hour discussion on the topic of Affirmative Action in the aftermath of the historic 2008 Presidential Election.

How Big Must A Jury Be?

Popular culture has ingrained the belief in us that all juries have 12 people serving on it (the classic film "Twelve Angry Men" being the prime example of this). But the United States Supreme Court has repeatedly made it clear that having 12 people on a jury is not required by the U.S. Constitution. Two American law professors explain why it should be required.

Obama Nominee Blocked by Senate Republicans

Today's Washington Post contains an article about how members of the Republican Party in the U.S. Senate were able to block President Obama's nominee for Deputy Secretary of the Interior. The article provides a nice illustration of a few things that I have already addressed in many of my courses. First, that the President has the power to appoint officers of the Executive Branch. Second, that this power is not absolute because the U.S. Senate must confirm the President's choice. Third, that because of special rules that exist in the U.S. Senate, rules that are not found in the Constitution itself, a minority of Senators can block action in the Senate using something called a filibuster. As students may recall, the filibuster is basically non-stop debate. The Senate cannot vote on the matter at hand until the debate is finished, and under the rules of the Senate a filibuster can only be stopped if at least 60 Senators vote to stop it. The Democrats in the Senate were only able to muster 57 votes in favor of ending debate and thus the fillibuster worked in stopping the full Senate from voting on the confirmation. Take a look at the Post article for more.

The More Things Change . . .

the more they stay the same, so the old saying goes. But is that true when it comes to spying on Americans? Put another way, did the election of Barack Obama as President change the surveillance tactics of the U.S. government? Not really, according to Wired's David Kravets.

Banning the Flag

Can a public high school prohibit students from wearing T-shirts bearing the Confederate Flag? According to the Sixth Circuit Court of Appeals, the answer is yes. The court's decision, which is relatively easy reading, can be found here.

Court Says Florida Cannot Make Foreign Policy

Understanding who has what power in the United States can sometimes be confusing. Determining which branch of the federal government has what power is the easy part (O.K., not really). But more complicated are questions like: When does Congress have the power to regulate activity and when does that power belong to the states? But there is one area that the courts have been pretty consistent on when it comes to the question of who has the power: foreign policy. A recent case out of Florida provides a very nice example.

Local Currency

Article I of the U.S. Constitution gives the federal government sole authority to print money. But that isn't stopping local businesses in cities like my hometown of Detroit from printing their own (il)legal tender. USA Today has more.

Trying To Keep Up

It has been a busy few weeks for critics and defenders of the Bush Administration as numerous memos and reports related to the use of torture by U.S. officials have been released to the public. Trying to keep up with this flurry of information is daunting . . . but not impossible. Thanks to Foreign Policy Magazine's Passport Blog, you too can try to keep up with the latest news on the "war on terror" and torture. Take a look and remember, this is just the tip of the iceberg.

UPDATE - the Economist's Democracy in America Blog also has a torture news round-up. It seems as though torture is all anyone can talk about these days.

Torture Docs Released

The Central Intelligence Agency (CIA) released documents yesterday related to torture techniques used by the prior Administration. The follows on the heals of the release of several legal memos by Attorney General Eric Holder that served as the legal basis in justifying the use of torture. ABC News has more.

After the Fall

A while back I wrote about the impeachment of Illinois Governor Rod Blagojevich. In the last week the former Governor has been indicted AND signed on to star in an American reality show. I guess that answers the question of what happens to a person once they have been impeached.

Parting Thought

Posting has been light because of the semester break. I will resume posting in early April. As a parting shot, I wanted to share a little something from the website of my local paper, which recently had an insert on Barack Obama. The following survey question was on the website for the newspaper:

Gibt Obama auch Ihnen Zuversicht?

	Ja. Ich glaube, dass er überzeugende Antworten auf die globalen Probleme des 21. Jahrhunderts hat.
	Nein. Er wird sich wie fast alle US-Präsidenten um amerikanische Interessen kümmern - um nichts weiter.

So let me get this straight, Obama and all past Presidents are judged by how well they have tackled global problems? If they have instead opted to tackle the problems facing the people who actually elected them, they are seen as merely protecting American interests and nothing more? Is this really a fair question? Not surprisingly, 85% of respondents opted for "Nein."

When Congress Can Reverse the Supreme Court

When is the Supreme Court the law of the land and when is legislative overruling of the Supreme Court appropriate? Today President Obama signed his first bill into law as President. The bill dealt with equal pay for women. More specifically, it dealt with an instance where the Supreme Court interpreted a federal law one way, and Congress turned around and passed a new law which basically said that the Supreme Court's interpretation was wrong (by the way, this is what is meant by legislative overruling). Can Congress do that? Sure, but only when Congress is reversing the Court's interpretation of a FEDERAL LAW. It is different, however, if the Court says that a federal violated the U.S. Constitution. This is what is meant by the Supreme Court is the law of the land. The Court and only the Court has the last say on what is and what is not constitutional. But not every matter deals with the Constitution, and quite often the Court is merely asked to interpret a federal law that has nothing to do with the Constitution. The website Scotusblog has more.

When Family Autonomy Goes Too Far

Students in my Introduction to American Law class recently learned that family law in the United States is primarily regulated by state law. I did, however, give some examples as to when federal law (or more specifically the federal constitution) comes into play in the area of family law. The primary example concerns a liberty interest that is sometimes referred to as familial relations. Put simply, there are some instances when the state, via family law, cannot interfere with the relationship between parents and children. But obviously this has its limits. A recent New York Times piece on parents who are being criminally charged after failing to provide their child with medical care led to her death illustrates the limits. The case concerns parents who believed that only God could heal their sick child. They are now claiming that using child neglect and endangerment laws against them violates their constitutional rights to freedom of religion. This sounds outlandish, but this area of the law is actually still somewhat unsettled in the United States, which is why this case is receiving a bit of attention. The Times piece is a must-read if you are interested in this topic.

Debts and Marital Property

For those of you in my Introduction to US Law class, a recent story in the international press may have caught your eye and made you think. Former Lehman Brothers CEO Richard Fuld apparently "sold" his $13.3 million Florida home to his wife for $100 (or $10 depending on the news story you read). Why would he do that? Isn't it still a marital asset that can be claimed by a creditor? Based upon what we discussed in class, the answer is yes, but as a technical matter the answer is no for a variety of reasons. First, as a general matter, marital debt is shared just as marital assets are. But if shareholders of Lehman obtain a judgement for money against the former CEO, this debt could be considered personal to Fuld alone, not a marital debt. Thus, by transferring the home into his wife's name, it is possible that the home would be protected from creditors of Fuld. Second, Flordia has a law that protects the family home from creditors. Some have agrued that Fuld himself is not a Florida resident but his wife is. Thus, for her this is the family home and it could be protected from creditors under Florida law. You can find a bit more on this here (in German) and here (in English).