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The Supreme Court’s opinion in Bond v. U.S. will be about separation of powers. But about separation of WHICH powers?

Update appended. 5/17 at 1:37 p.m.

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I’ve written several times in the last three-plus years about a Supreme Court case called Bond v. U.S. Actually, to be precise, Bond v. U.S. is two Supreme Court cases, although it’s only one lower-court case. This is not unusual, but the case itself is; both the facts and the legal issues are downright weird.

The case first came to the Court in 2010 as a “federalism” (states’ rights!) case, albeit a highly unusual one: Unlike virtually every other criminal-law-related case ni which federalism is at issue, the criminal defendant in this case was prosecuted not in state court but in federal court.  She argued, successfully, to the Supreme Court, on “direct” rather than “collateral” review–a distinction that gives federal criminal defendants an actual shot at Supreme Court review in order to clarify, broaden or narrow criminal or constitutional law; state-court defendants have virtually no chance, and are (very) effectively precluded, by the Supreme Court’s extreme (absurd) interpretation of a federal “jurisdictional” statute, from any such opportunity in the lower federal courts–that she herself had “standing” under the doctrine of federalism to challenge the constitutionality of her federal prosecution. Notwithstanding that she is not a state. But she had been prosecuted under a ridiculously broad reading of a federal anti-terrorism statute, of what should have been a state prosecution.

You have “standing” to sue if there is a direct, actual or imminent injury to you that could be rectified by a favorable court ruling on the issue you want to raise.

Kennedy wrote the opinion, in which he wrote: See, I told you that federalism equals freedom! (Okay, I’m paraphrasing. But you figured that out by yourself.)  Federalism , Kennedy said, is the separation of powers between the federal and the state governments.  Which makes us freer.  Even when it means that state courts (in criminal and civil cases) and prosecutors are free to violate individuals’ constitutional rights. (Okay he didn’t say that latter in that opinion, but he and his colleagues say it regularly in other opinions.)

The Court send the case back to the lower federal appellate court for review of Bond’s substantive claim: Was her prosecution under a ridiculously broad reading of a federal anti-terrorism statute instead of as a run-of-the-mill assault under state criminal law unconstitutional under the doctrine of federalism?  And while her case was in the lower appellate court, she argued that the Chemical Weapons Convention Implementation Act–the statute under which she was prosecuted, and which Congress had enacted under it’s “enumerated” constitutional power to enforce and interpret treaties– was unconstitutional because, well, the part of the treaty that Congress had enacted the statute to enforce, at least as interpreted by Congress in enacting that statute, was an unconstitutional power grab by the executive branch, which had negotiated the treaty.  At least as interpreted by Congress in enacting that statute.

Something like that. I am, I hope it suffices to say, not an expert on international law.  I’m, I just say, way more comfortable discussing the usual federalism (states rights!) controversies than even mentioning, say, treaty law. But I will note that the Constitution’s Article II, Section 2, Clause 2, enumerates that the President “shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Bond lost in the lower court on both her grounds, and the Supreme Court agreed to hear the case again.  The case was argued last November, in the same group of argument “sittings” as Town of Greece v. Galloway.

I had assumed until last week, when Town of Greece was released, that Kennedy would write the opinion in Bond–another ode-to-federalism-because-it-means-freedom opinion–and that Roberts would write the opinion in Town of Greece. (They sort of balance things that way.)  But I was wrong about that. Kennedy wrote Town of Greece and Roberts is writing (or has written; the opinion might be issued on Monday) Bond.  And Vanderbilt law prof. Ingrid Wuerth, who is an expert on international law, writes that she expects it to be a blockbuster.

Wuerth says, if I understand her correctly, that she expects that the opinion will substantially rewrite (i.e., limit) the extent of the federal government’s treaty powers–under some theory of the “structure” of the federal government under the original Articles.

I think it will use a different part of the original Constitution, though, than the one that structures the federal government so that Section 2 of the Fifteenth Amendment, and the habeas corpus provision in the Constitution’s Article I and much of the Fourteenth Amendment (as necessary), are largely nullities. This part of the Constitution, I expect, will have been written not by James Madison, or by Oliver Wendell Holmes (to whom credit will be given, nonetheless), but instead by the Koch brothers, who await this ruling.  The purpose of which will have nothing much to do with terrorism–except the environmental kind that Koch Industries, ExxonMobil, and coal-fired power plants perpetuate.

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UPDATE: Reader Mike Hansberry and I exchanged the following comments in the Comments thread to this post:

HANSBERRY:  Your comment puzzles me. If the Court rules that the federal government overreached in prosecuting Ms Bond, that will strengthen Reid v. Covert, which teaches that the Treaty clause does not empower the Pres. and Senate to override Const,. protections, rather than weaken it. In my opinion, the court ought to expand on Reid and say that the Treaty clause does not empower the Pres. and Senate to violate structural principles any more than it allows them to violate enumerated protections.

Moreover the Court could simply say that the treat power extends as far as Missouri v Holland, but no further. So there is no need whatever to for this ruling to have an impact on the law as it stands.

ME:  Your comment indicates that you understand perfectly the point of my post, Mike.  Reid v. Covert indeed teaches that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens, in that case, to a U.S. citizen living abroad and tried and convicted, by a military tribunal, of murdering her husband.

I do understand that a major part of the Conservative Legal Movement is to privilege states’ alleged rights over the rights of the federal government and the rights of individuals who aren’t rightwing culture warriors, and attribute this to, as I put it in a new post on this blog, “the Constitution–by its structure, its history, its … whatever.  Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.”

You acknowledge that a ruling in Bond that expands Reid’s “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens–a ruling that expands it to a “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s alleged sovereignty guaranteed to individual states American citizens–would be a clear expansion of Reid’s teaching.  It would, in fact, be not just an expansion but an alteration of the purpose Reid’s teaching, which was to protect individuals, not states, from evisceration of the Constitution’s direct guarantees to individuals.

The question is not whether a treaty can supersede the Constitution’s structure, but instead the right’s claim that the Constitution’s structure is, in essence, the right’s legislative agenda.  That is, the question is: What actually is the Constitution’s structure. In this case–and, really, this case only–a ruling for Bond based on the right’s claims about the Constitution’s structure also would reflect the left’s idea of the Constitution’s structure, but in an entirely different respect.  Carol Bond should win, but because her own individual constitutional rights were violated by a bizarre application of a federal statute.  She should not have to piggyback on some rightwing claim that states, and especially state courts and state prosecutors, are sovereigns whenever they choose to be, including whenever they choose to violate a criminal defendant’s constitutional rights.

THAT would avoid a de facto reversal of what Holmes actually wrote in Missouri v. Holland, as I read that opinion.

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Greece, Greece, I Tell You!

It’s not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore‘s Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers’ views on religion made it into Monday’s decision on public prayer.

But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.

— Professor says Supreme Court drew flawed conclusion from book: University of Baltimore expert says Framers deliberately avoided sectarian language, John Fritze, The Baltimore Sun, May 10

No, the title of this post doesn’t refer to the bond-vigilantes/austerity/confidence-fairy crowd, but instead to (yet again) the Supreme Court’s 5-4 decision issued last week in Town of Greece v. Galloway–and to what will be the rallying cry of the pro-Christian-prayer-at-government-meetings crowd, going forward.

Before I swear off posting on AB about that Supreme Court opinion, I want to make one more point, this one about the perniciousness of the Court’s conservative majority’s pretense that in order to understand the original Constitution and the Bill of Rights, or the Reconstruction-era amendments, or anything else about the Constitution, you presume that the framers intended to freeze things the way they were before the Constitution, the Bill of Rights, the Reconstruction-era amendments, were drafted and ratified.

Which raises this question: Why engage in a laborious process of gathering a large number of people to draft a Constitution and shortly afterward draft and ratify amendments, or fight a Civil War and, after you win, draft and ratify amendments reflecting the outcome of the war, if your purpose is to solidify the pre-Constitution, pre-Bill of Rights, pre-Civil War, pre-Reconstruction-era status quo?

The answer is that you don’t, and you don’t pretend that others did.  Unless you’re a 1980s-era Conservative Legal Movement lawyer, judge or justice.*

But it also highlights what is becoming a hallmark of the Roberts Court’s conservative majority: misrepresentations of the very meaning of words, phrases, legal doctrines, and (now, apparently) academics’ writings.

I wrote here recently that we’re “witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.”

The title of Meyereson’s book is Endowed by Our Creator: The Birth of Religious Freedom in America.  As I said here yesterday, town governments are people, my friend.

I do think the Supreme Court has crossed a threshold now.  This crowd observes no recognizable bounds of propriety in achieving the Conservative Movement’s policy goals via the Court’s transparent machinations of history, language, false analogy. Nothing–nothing–is sacred any longer. Except, of course, Christianity.

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[Next up, later this week: Why I believe that Ruth Bader Ginsburg will announce her retirement at the end the Supreme Court term in late June, pending confirmation of her replacement. And the UnElena Kagan who I expect will replace her–and why it would be a very good development, for once.]

 

*This paragraph and the one above were edited for clarity and inclusion of an inadvertently-missing clause after posting, 5/14 at 6:28 p.m.

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Town Governments Are People, My Friend.

For citizens against the prayers, the decision sets dangerous church-state precedent. For the town of Greece, court’s ruling is a victory for religious freedom.

— Brett Harvey, senior counsel at Alliance ­Defending Freedom, which represented the town of Greece, in Town of Greece v. Galloway, at the U.S. Supreme Court, writing as a guest in the National Law Journal.

That’s right. States are people entitled to equal protection of federal law under the Constitution’s Fifth Amendment. Corporations are people entitled to freely practice their religion under the First Amendment’s free exercise clause, and to use the fund of their unwitting shareholders to exercise their CEO’s First Amendment right to free speech.

And town governments are people entitled to exercise their religious majority’s right to freely practice their religion under the First Amendment’s free exercise clause.

The Alliance has successfully defended freedom.  The decision “not only protects the ability of the government to accommodate the faith of the people, but it adds further protection for people to publicly pray and express their own faith,” Mr. Harvey writes.

Which is good, because of all those people–right here in America–who were being arrested for praying publicly and expressing their own faith. No longer will Americans have to worry about being able to make bail and retaining criminal counsel after praying outside.

And now they can even go Christmas caroling around their neighborhood each December while carrying two cell phones, and make it home unmolested by arrest.

 

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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.

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*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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Do take advantage of your brand new prayer opportunities. Along with your newly created job opportunities and all your new freedoms.

The most important turn in Monday’s Supreme Court ruling in Town of Greece v. Galloway—a case that probes the constitutionality of explicitly religious prayer in legislative sessions—isn’t that the courts no longer have a role in policing the Establishment Clause, or that pretty much any sectarian prayers can be offered at town meetings so long as they do not “threaten damnation, or preach conversion” to minority religions. No, I think the interesting change in the court’s posture today is that sectarian prayer in advance of legislative sessions is no longer characterized merely as “prayer.” In the hands of Justice Anthony Kennedy, who writes for five justices, these benedictions are now free and unfettered “prayer opportunities.” And “prayer opportunities” are, like “job creators” and “freedoms,” what make America great.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

My Polish-Jewish-immigrant grandmother, who’s been spinning in her American-cemetery grave since yesterday morning (trust me on that), might calm down once she realizes the benefits of this new all-in-one-case body of law.  Which are that town residents who’d rather not take advantage of their prayer opportunity but who do want to attend a town-government meeting can plug their iPhone earphones into their ears and enjoy some music until the policymaking stuff begins. And not have to worry about appearing rude.

Hopefully, someone will give some visual signal that the prayer opportunity is over and that everyone who didn’t grab the opportunity when it was available will have to wait until Sunday church service for another one. Although there probably isn’t a prayer that that will happen. And if all hell breaks loose before Sunday, like during the policymaking debate, that missed prayer opportunity will be regretted. My grandmother would have appreciated being forewarned.

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