Jurisdiction Stripping

Wed Mar 7 10:51:22 PST 2007

In the dead horse department:  There is no indication whatever, in the text 
or legislative history of the MCA, that Congress had any notion of 
repealing, amending, or modifying the Geneva Conventions, to use Justice 
Field's words.  Even the statement that the commissions conform to Geneva 
requirements is stated as a description of or label for the commissions, 
and not as a modification of Geneva (commissions "are" regularly 
constituted courts).

Thus, so far as the MCA is concerned, the Geneva Conventions as ratified by 
the US remain in force exactly as they were before enactment of the 
MCA.  This takes the MCA out of the Wheeling Bridge category (Congress 
changes the substantive law to be applied) and into the Klein/Marbury 
category (Congress doesn't change the substantive law, but tells the court 
it can't consider it or tells the court what the result must be).

At 10:37 AM 3/7/2007 -0500, earl maltz wrote:

>         Unless I am missing something, the statute at issue in the 
> Chinese Exclusion Cases did not  purport reservations to the treaty 
> obligation; instead, it is entitled "'An act a supplement to an act 
> entitled 'An act to execute certain treaty stipulations relating to Chinese,' "
>
>         But in any event, Justice Field's opinion does not purport to 
> rely on any such distinction.  He states categorically that
>By the constitution, laws made in pursuance thereof, and treaties made 
>under the authority of the United States, are both declared to be the 
>supreme law of the land, and no paramount authority is given to one over 
>the other. A treaty, it is true, is in its nature a contract between 
>nations, and is often merely promissory in its character, requiring 
>legislation to carry its stipulations into effect. Such legislation will 
>be open to future repeal or amendment. If the treaty operates by its own 
>force, and relates to a subject within the power of congress, it can be 
>deemed in that particular only the equivalent of a legislative act, to be 
>repealed or modified at the pleasure of congress. In either case the last 
>expression of the sovereign will must control.
>
>At 05:02 PM 3/6/2007 -0800, Janet C. Alexander wrote:
>>         "The judicial power of the United States is extended to all 
>> cases arising under the Constitution.
>>         "Could it be the intention of those who gave this power, to say 
>> that in using it the Constitution should not be looked into?  That a 
>> case arising under the Constitution should be decided without examining 
>> the instrument under which it arises?
>>         "That is too extravagant to be maintained.
>>         "In some cases, then, the Constitution must be looked into by 
>> the judges.  And if they can open it at all, what part of it are they 
>> forbidden to read or to obey? . . .
>>         "Ought the judges to close their eyes on the Constitution and 
>> see only the law?"
>>
>>         Therefore, Marbury held, judges could not simply follow the law 
>> permitting original jurisdiction over mandamus actions against federal 
>> officials; they were required to "open the Constitution" and follow it 
>> where it applies.  This argument is based on the supremacy of the 
>> Constitution; and since federal laws made in pursuance of the 
>> Constitution and treaties are also the supreme law of the land, the same 
>> reasoning should apply.
>>
>>         The Chinese Exclusion Cases are not a propos because in the MCA 
>> Congress did not repudiate or express reservations to the Geneva 
>> Conventions in any way, let alone abrogate them (in fact, it declared 
>> the military commissions to be in conformity with Geneva 
>> requirements).  The Conventions continue in force, but the statute says 
>> litigants can't raise them as a source of rights in litigation against 
>> the government -- in such cases the judges are to "close their eyes to 
>> [the Conventions] and see only the law [the MCA]."
>>
>>         Janet Alexander
>>
>>At 01:49 PM 3/6/2007, Earl Maltz wrote:
>>>I don't agree that Marbury establishes that point at all; indeed, I 
>>>don't think that that issue was in the case.  For me, Klein stands 
>>>simply for the proposition that Congress cannot allow the Court to take 
>>>jurisdiction and then direct a result.  And don't the Chinese Exclusion 
>>>Cases establish the proposition that Congress can, by statute, abrogate 
>>>the force of treaties (and thus international law) in any case that it wants?
>>>
>>>At 10:44 AM 3/6/2007 -0800, Janet Alexander wrote:
>>>>I agree with Carlos, but saying the Constitution forbids 
>>>>issue-stripping isn't really going "further."  Marbury establishes that 
>>>>if a court has jurisdiction over a "case," Congress cannot forbid it 
>>>>from considering a particular issue in the case.  (This is also one of 
>>>>the myriad interpretations of U.S. v. Klein.)  For this reason, the 
>>>>provision of the Military Commissions Act that purports to prohibit 
>>>>anyone (not just noncitizens held outside the U.S.) from raising the 
>>>>Geneva Conventions as a source of rights in civil litigation against 
>>>>the government or its agents is unconstitutional.
>>>>
>>>>The question whether Congress's power to remove "cases" or categories 
>>>>of cases from the jurisdiction is much harder and there are fewer clear 
>>>>signposts.  Steve has listed the relevant precedents, and many people 
>>>>have written wonderfully on how we should read them.  Gerald Gunther 
>>>>was one who argued that Congress's power is truly plenary (though he 
>>>>got this proposition from the text of the Constitution, not an 
>>>>opinion).  But even if McCardle were read strongly, the tide has 
>>>>shifted since then about the importance of judicial review of 
>>>>constitutional issues, particularly involving individual liberties.  We 
>>>>can't underestimate the influence of Hart's Dialectic.  Even in 
>>>>opinions by members of the "conservative" bloc, the view that 
>>>>preventing all judicial review of a substantial constitutional question 
>>>>"would raise serious constitutional questions" is an undercurrent 
>>>>running through the analysis.  I agree with Steve, Trevor et al. that 
>>>>the Supreme Court did not confront this issue in McCardle, and was at 
>>>>some pains to point out that it was not deciding that issue.  When you 
>>>>add the Suspension Clause into the mix, it's a very difficult question.
>>>>
>>>>Janet Alexander
>>>>
>>>>Janet Cooper Alexander
>>>>Frederick I. Richman Professor of Law
>>>>Stanford Law School
>>>>559 Nathan Abbott Way
>>>>Stanford, California 94305-8610
>>>>650.723.2892

Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892
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