The Supreme Court Will Decide a Federal-State Tug of War (Forbes.com) April 24, 2012
Posted by daviddavenport in Newspaper Columns/Essays.Tags: Supreme Court
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The U.S. Supreme Court is closing its term with a bang, having devoted several days to the historic battle over healthcare and concluding this week with the legal challenge toArizona’s immigration law. But below the surface, these landmark cases are not just about newly enacted laws. In fact, these lawsuits constitute major battles in a larger tug-of-war between state and federal power.
The healthcare case has brought the commerce clause into popular conversation, since the mandate for individuals to buy health insurance is defended by the federal government’s authority to regulate matters affecting interstate commerce. Is no commerce (refusing to buy health insurance) commerce? And if the federal government can regulate that, is there any limit left to its power under the commerce clause? Several justices asked the government lawyers to articulate a “limiting principle,” a query that could hardly have been surprising, yet was never satisfactorily answered.
But at least as important to states is the provision of the new healthcare law that would give them new federal money for state Medicaid programs, but with powerful strings, requirements, and additional expenses attached. This clever deployment of federal power to regulate health and general welfare, a matter belonging to the states, is defended by resort to the Congressional spending power. The Supreme Court has said that Congress may place conditions on the use of federal money by states, but not so heavily as to constitute “coercion.”
You may wonder, for example, how K-12 education, a classic state and local policy matter, has become federalized through “No Child Left Behind” and “Race to the Top” reform programs. The answer is: through the Congressional spending power. The feds, in effect, bribe states to follow their ideas about education reform by putting out precious grant money to cash-starved states and school districts. As some of the justices asked in oral argument, how could states not feel “coerced” to follow federal rules at the risk of losing the largest grant program they now receive fromWashington?
Tallying our inventory of federal challenges to state power, so far we have the most important commerce clause litigation since the New Deal, and the largest case questioning possible federal coercion of states in 25 years. Then comes theArizonaimmigration case, in which the federal government has deployed its preemption power in an attempt to stopArizonafrom increasing enforcement against illegal immigration, an area in which the federal government has taken the lead but, by all accounts, has woefully underperformed.
Here the federal government’s power comes from the supremacy clause, establishing that federal law is the supreme law of the land. But states are still free to operate in those areas unless federal law “preempts” the field and states are not acting in conflict with the federal approach. AsArizona’s attorney, Paul Clement, pointed out: “This is another federalism case. This is not all about immigration. It’s really about the relationship between the federal government and state government.”
Next up, perhaps next term, will be same sex marriage cases, which again raise fundamental questions of federal and state power. Who decides what the law of marriage is, what marriage itself is? Is that a question for states or for the federal government? And surely someone will challenge the federal takeover of K-12 education through reform and testing laws such as “No Child Left Behind” and “Race to the Top” as unlawful exercises of “coercive” federal spending powers.
Beginning with the “New Deal” legislation of the 1930’s, we have witnessed a steady expansion of federal power, much of it at the expense of state sovereignty. We may well have reached a tipping point where the Supreme Court will say “enough”, and in at least one of these cases—healthcare, immigration, same sex marriage—federal power will be pushed back.
Do we really needWashingtonto tackle every question? Is everything “a federal issue?” Is there no room for variety among the states, especially on social and values questions? DoesKansasneed to follow everythingCaliforniadoes? And if so, will we reach a point where state governments themselves—which were an essential part of our founding and federalist system—seem like unnecessary layers of middle management? Stay tuned for the Supreme Court’s response this summer.
To view the article in Forbes, please click on the link:
http://www.forbes.com/sites/daviddavenport/2012/04/24/the-supreme-court-will-decide-a-federal-state-tug-of-war/
Mitt’s Credentials (Townhall.com) April 12, 2012
Posted by daviddavenport in Radio Commentaries.Tags: Presidential Elections
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As Mitt Romney consolidates his hold on the Republican nomination, a number of folks are puzzled that conservatives have not fully embraced him. But there has long been a tension in the Republican party between the more pragmatic, business leaders and the more philosophical conservatives.
Business leaders are out to make things work, to create an environment for success. Philosophical conservatives want to see their principles heard and embraced.
As Romney says, his pragmatic approach addresses issue number 1 in the campaign: the economy—and it will connect well with centrist voters in the fall. But to cap his successful run for the nomination, he should also make clear the deep principles in which he believes.
And he can nominate a strong philosophical conservative for vice president, all of which positions him to be a very serious contender in the fall.
To listen to the audio please click on the link:
http://townhall.com/talkradio/dailycommentary/637674
Healthcare: The Constitutional Tipping Point (Townhall.com) April 10, 2012
Posted by daviddavenport in Radio Commentaries.comments closed
President Obama and other liberal democrats seem shocked that the Supreme Court might actually strike down Obamacare as an unconstitutional exercise of federal power. They argue mightily, the president even publicly, that the Court would be out of line with precedent to do so.
But, in fact, the case represents what author Malcolm Gladwell would call a “tipping point.” Federal power has grown steadily until, as some justices asked, what limits would be left on Congress if this went forward?
In fact, there are two constitutional tipping points in this case: stretching the commerce clause to require individuals to buy insurance, and expanding the Congressional spending power so the federal government may control state medicare programs.
Here’s hoping the Court will pull us back from the constitutional brink, which is the role it should play.
To listen to the audio please click on the link:
http://townhall.com/talkradio/audioplayer/637526
The ICC and Palestine: A Response (OpinioJuris.org) April 6, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
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In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could: the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States. The only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found. Typical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009). Or a previous post’s argument that went straight to political motives—that Prosecutor Moreno-Ocampo “contrived to reject the existence of the state of Palestine”—when, again, the proper issue before a criminal court was whether its own jurisdictional requirement was satisfied.
The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg. A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction. Those debates belong in political bodies, not in criminal courts. This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.
So, what now? Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally. How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later? If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations. And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations. Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.
Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively. Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.
To view the op/ed please click on the link:
http://opiniojuris.org/2012/04/06/the-icc-and-palestine-a-response/
International Criminal Court Prosecutor Resists Palestinian End-Run (Forbes.com) April 4, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
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For three years, the Prosecutor of the International Criminal Court in the Hague has been trying to decide whether he had jurisdiction over Israel for alleged war crimes in Gaza. Even though the legal answer (“NO”) seemed obvious from the start, both politics and the inevitable expansionist agendas of international courts kept the question alive and Israel potentially subject to the Court.
Finally this week the Prosecutor announced that he would not pursue the investigation of Israel “for acts committed on the territory of Palestine since 1 July 2002.” For now, this closes off yet another legal front of attack on Israel, and also thwarts another end-run by Palestine around the path by which Palestinian statehood is supposed to be resolved; namely the Middle East peace process and the United Nations.
The interesting question is why it took so long for the Prosecutor to reach what seemed like a no-brainer outcome from the start. In January 2009, the Palestinian Minister of Government filed a submission with the ICC asking the Court to take jurisdiction over Israel’s actions in Gaza. But the Court’s own rules require that any matters submitted must come from a “State.” Since Israel is not a party to the treaty creating the Court (nor is the U.S. and 70 or so other nations), and since Palestine is neither a party nor a State, it seemed obvious to most international lawyers that the ICC had no jurisdiction over the matter.
This is precisely what Prosecutor Luis Moreno-Ocampo concluded at first, that he had no jurisdiction. But a few weeks later, he reversed field and said he wanted to think further about whether Palestine might have sufficient earmarks of a State to submit a case to the Court. And so the hunt for those earmarks began. Some argued, for example, that because Palestine walks like a state and talks like a state, it therefore must be a state. Only in the vagaries of international law might one describe such a legal argument as “teleological” and therefore be taken seriously. Others said that because some states interact with Palestine as a state, it must be a state.
But when you look at the list of nation-states that belong to the United Nations, Palestine is not there. Instead it is listed as an “observer” at the U.N. And when you review those who attended the meetings creating the International Criminal Court itself, again Palestine is not listed as a state, but rather as one of the “other organizations” in attendance. Indeed, Palestinian officials themselves have long admitted that statehood is their objective, not something they have already attained.
Yet the ICC Office of the Prosecutor spent three years pursuing a lengthy and, for a prosecutor, almost bizarre process of consideration. First, prosecutors entertained “submissions”, not only from parties but from anyone, really, who had something to say. Memoranda were filed by human rights organizations, NGO’s, academics and countless others, with many of these posted on the Prosecutor’s website. Then the Prosecutor invited eight international lawyers who had made submissions, to come to the Hague for a chat about the matter. If it’s difficult to imagine your local prosecutor holding afternoon tea sessions to discuss whether to prosecute war criminals, again welcome to what passes as the world of “international law.”
It is both interesting and important to understand why the Prosecutor took so long with this question. For one thing, the impulse of international organizations is inevitably to expand their jurisdiction. They want more power and influence, not less. Since the purpose of the ICC was to halt impunity for war crimes, genocide and crimes against humanity, the human rights organizations that were behind formation of the Court worry less about legal niceties such as jurisdictional rules and want broader jurisdiction. The Prosecutor himself may share those views but, at the very least, he feels pressure from those who founded this relatively new court in 2002, a court that only recently completed its first trial.
The Prosecutor also faces political pressures that he is only bringing cases against Africans and not those from other, more powerful countries. Indeed, virtually all of his early investigations have been against Africans and perhaps he needed to keep this case alive, if only to demonstrate some balance. Further, he may have been under pressure to keep his hand in the Middle Eastern peace process, holding the threat of prosecution over Israel’s head. And, the ICC could have been one more ticket for Palestine to punch in its effort to receive recognition from international organizations and move along toward its goal of statehood.
But in the end, all those political pressures could not find a proper legal argument to carry the day, and the Prosecutor had to admit that the question of statehood, and therefore the ability to bring cases to the ICC, was really a decision for the United Nations, and not for the Court. Imagine, though, all the time, effort, frustration, and political leverage that were invested in a decision that could and should have been reached three years ago.
To view the article please click on the link:
http://www.forbes.com/sites/realspin/2012/04/04/international-criminal-court-prosecutor-resists-palestinian-end-run/
The Prosecutor of the International Criminal Court Makes a Sensible, if Delayed, Decision (Advancing A Free Society) April 3, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
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The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.” This closes off, for now, an attempt by Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.
But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state. To that the answer is “no, for now.”
The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation. But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.
The Prosecutor, Luis Moreno-Ocampo, seriously entertained the question for three years, following a remarkable prosecutorial process of inviting outside submissions, posting briefs on the Internet, and hosting roundtable arguments in his offices in The Hague. He seemed open to the possibility that the definition of “State” for purposes of the ICC might be different than a “State” in international law generally. He spent three years looking at arguments that Palestine possessed this or that mark of statehood. One sensed that he was under political pressures to open the doors of the Court more widely to take this case.
In the end, the Prosecutor said it was really up to the United Nations to decide what is a “State” and that, so far, Palestine was only treated there as an observer. It thus becomes a political decision for the U.N., rather than a legal decision for an international court, which was surely the right answer all along. The lengthy process for what should have been a straightforward decision reminds us of the dangers of these politicized and expansionist international courts.
To view the article please click on the link:
http://www.advancingafreesociety.org/2012/04/03/the-prosecutor-of-the-international-criminal-court-makes-a-sensible-if-delayed-decision/#more-5729
International Court Resists Palestinian End-Run (Townhall.com) April 17, 2012
Posted by daviddavenport in Radio Commentaries.Tags: International Law
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For three long years, the Prosecutor of the International Criminal Court has been trying to decide whether he has jurisdiction to investigate Israel for alleged war crimes in Gaza in 2008-09.
Although the legal answer was clearly NO, he faced political pressures to acknowledge Palestine as a state, and to bring Israel, under the jurisdiction of international criminal law.
Finally this month he said no, Palestinian statehood is a question for the United Nations, not a criminal court, and therefore Palestine’s complaint against Israel could not be taken up.
There are good reasons why the U.S., Israel and 70 other nations have not joined this Court because, like many international tribunals, it is often more about politics than law. It took far too long, but at least they got this one right.
To listen to the audio please click on the link:
http://townhall.com/talkradio/audioplayer/639975