July 26, 2002

• On Tuesday, July 23rd, Judge Diarmuid F. O'Scannlain, United States Circuit Judge, Ninth Circuit testified to the United States House of Representatives Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property. His testimony at the Subcommittee's hearing on H.R. 1203, the Ninth Circuit Court of Appeals Reorganization Act of 2001 can be read by clicking HERE (PDF).

July 10, 2002

• In Federal Maritime Commission v. South Carolina States Port Authority, the Supreme Court ruled that a state's sovereign immunity from lawsuits under the Constitution's 11th Amendment extends to complaints brought before federal administrative agencies. The Constitution's text provides immunity only from "the judicial power of the United States." But the Court's majority determined that the states nevertheless should be immune from agency litigation, which resembles court litigation in material respects, because state immunity is "embedded in the constitutional structure."
  
  In a column published in the July 1 edition of Legal Times, Progress & Freedom Foundation senior fellow Randolph J. May explains that, although the dissenters in FMC criticize the majority's decision for lacking "any firm anchor in the Constitution's text," the dissenters critique is offered in defense of independent regulatory agencies, such as the FMC, FTC, FCC, and SEC, that themselves lack any textual basis in the Constitution. Indeed, the dissenters acknowledge their position is based on flexible constitutional interpretations that "led the New Deal Court to find in the Constitution authorization for new forms of administration, including independent administrative agencies."
  
  May writes that forced to choose between the two non-textual positions debated in FMC, "I see less of a threat to the liberty interests sought to be protected by the power-diffusing principles" that animate federalism than the dissents' notions touting independent agencies "whose most notable feature is a blending of executive, legislative, and judicial powers." According to May, "an argument that, in the end, draws support from talk of 'new forms of administration' that blend government powers worries me more than on grounded in talk about maintaining a healthy balance of power between the federal government and the states." Please click HERE to read the full article.

July 3, 2002

• The Cato Institute has published Policy Analysis No. 440, "There Goes the Neighborhood: The Bush-Ashcroft Plan to 'Help' Localities Fight Gun Crime," by Gene Healy.
  
  The centerpiece of President Bush's crime-fighting program is an initiative called Project Safe Neighborhoods. That initiative calls for the hiring of some 700 lawyers who will be dedicated to prosecuting firearm offenses, such as the unlawful possession of a gun by a drug user or a convicted felon. The basic idea is to divert firearm offenses from state court, where they would ordinarily be prosecuted, to federal court, where tougher prison sentences will be meted out. Project Safe Neighborhoods will also provide funding to escalate gun prosecutions at the state level.
  
  The piece argues that, "The initiative flouts the Tenth Amendment by relying on federal statutes that have no genuine constitutional basis. Moreover, the program will very likely lead to overenforcement of gun laws and open the door to prosecutorial mischief affecting the racial composition of juries. As the constitutional and policy implications of Project Safe Neighborhoods become more apparent, the Bush initiative looks less like a commonsense solution to crime and more like a political gimmick with pernicious unintended consequences." To read the full peice click HERE.

June 7, 2002

• WORTH READING The Yale Law Journal has published an article entitled "The Executive Power over Foreign Affairs," written by Saikrishna B. Prakash & Michael D. Ramsey, in its November 2001 (v III, num 2) journal.
  
  The piece maintains that the Constitution's "text supplies four basic principles that provide a framework for resolving controversies over the source and allocation of foreign affairs powers. First, and most importantly, the President enjoys a "residual" foreign affairs power under Article II, Section 1's grant of "the executive Power." As we seek to establish in this Article, the ordinary eighteenth-century meaning of executive power-as reflected, for example, in works of leading political writers known to the constitutional generation, such as Locke, Montesquieu, and Blackstone-including foreign affairs powers. By using a common phrase infused with that meaning, the Constitution established a presumption that the President will enjoy those foreign affairs powers that were traditionally part of the executive power.
  
  Second, the President's executive power over foreign affairs is limited by specific allocations of foreign affairs power to other entities-such as the allocation of the power to declare war to Congress. Thus, the President has a circumscribed version of the traditional executive power over foreign affairs. Notwithstanding the common understanding of executive power, the President cannot regulate international commerce or grant letters of marque and reprisal. Third, Congress, in addition to its specific foreign affairs powers, has a derivative power to legislate in support of the President's executive power over foreign affairs and its own foreign affairs powers. But contrary to the conventional view, Congress does not have a general and independent authority over all foreign affairs matters. In particular, Congress cannot establish relations with a foreign country or establish foreign policy. Fourth, the President's executive power over foreign affairs does not extend to matters that were not a part of the traditional executive power, even where they touch upon foreign affairs. In particular, the President cannot claim power over appropriations and lawmaking, even in the foreign affairs arena, by virtue of the executive power. That is to say, the President is not a lawmaker, even in foreign affairs."