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constitutional law, criminal law procedure, governments, international law, international trade law, military veterans law, and pensions benefits law

Introduction After more than a century under U.S. rule, the political status of Puerto Rico remains unresolved. A constitutional law scholar has advanced the proposition that, "Puerto Rico and the United States are truly at the crossroads, in a situation of crisis, at a time when a critical decision must be made." 1 A Spanish colony for 400 years, it came under the sovereignty of the United States in 1898. By then, Puerto Rico had developed its own identity as a Spanish-speaking Latin American nation of the Caribbean. Since then, three major pieces of legislation enacted under congressional powers to "make all needful rules and regulations" regarding the territories are of special significance. 2 First, the Foraker Act of 1900 3 ordained a civil government to replace military rule, set the conditions for relations between local and federal governments, and provided for an elected, non-voting delegate, a "resident commissioner," to the U.S. Congress, which continues to exist to this day. The second organic act, the Jones Act of 1917, 4 added, among other provisions, an elected Senate, extended U.S. citizenship to Puerto Ricans (in spite of vigorous opposition by the sole elective body, the House of Delegates, 5 now renamed "House of Representatives"). The third important congressional enactment was Public Law 600 of 1950, authorizing a process whereby the people of Puerto Rico could draft and approve a constitution for a strictly local government. 6 Public Law 600 amended the provisions of the 1917 Jones Act establishing the ...

civil procedure, computer internet law, governments, and healthcare law

I. Introduction A. Congress-Court Relations During the Rehnquist Court The Rehnquist Court (OT1986-OT2005) has been described as an ideologically divided Court with two blocs of "stalwarts" (a conservative bloc and a liberal bloc) and with Justice O'Connor as the pivotal swing vote. 1 The Rehnquist Court was also known for its (conservative) activism. 2 Professor Cass Sunstein noted that "In its first seventy-five years, the Supreme Court struck down only two acts of Congress. In the eighteen years since Ronald Reagan nominated William H. Rehnquist as Chief Justice, the Court has invalidated more than three dozen. Under Rehnquist, the Court has compiled a record of judicial activism that is, in some ways, without parallel in the nation's history." 3 Professor Mark Tushnet argued that on the Rehnquist Court: Everyone is a judicial activist. The Rehnquist Court has invalidated laws whose constitutionality was clear under long-established doctrine, using novel analyses that it has sometimes acknowledged cannot be tied closely to the Constitution's text or original understandings. In addition, the Rehnquist Court has asserted, more strongly than the Warren Court, a primary role in enforcing the legal boundaries Congress has to respect, so much so that two respected scholars have written an important article with the accurate title "Dissing Congress." 4 During the "Second Rehnquist Court," the Court pursued a federalism agenda and was active in striking down congressional statutes. 5 Professor Thomas Keck concluded, "In its view toward federal legislative power ... the later Rehnquist Court has been the ...

constitutional law, criminal law procedure, governments, and international law

I. Introduction After the terrorist attacks of September 11th, 2001 the U.S. Congress responded by passing the shockingly evocative Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, 1 while the Westminster Parliament, though not directly affected by the incident, passed the blander, but not altogether unevocative, Anti-Terrorism, Crime and Security Act of 2001. 2 Moreover, Westminster's response to the London bombings of July 2005 did not come until March 2006. This time the terrorist incident had occurred in their own country, yet the response in terms of short titles was even less evocative: the legislature responded by enacting the innocuously titled Terrorism Act 2006. 3 When the financial crisis was first perceived in 2008 Congress passed the Emergency Economic Stabilization Act of 2008, 4 while Westminster enacted the Banking (Special Provisions) Act 2008. 5 Congress's subsequent major response to the financial crisis was the Dodd-Frank Wall Street Reform and Consumer Protection Act, 6 while Westminster's other major responses to such matters were the Banking Act 2009 7 and the Corporation Tax Act 2009. 8 But differences in short titling between the lawmaking bodies lie in other unexpected areas as well, such as mental health. While the subject of mental health is not usually a divisive issue by most standards, Congress apparently feels the need to employ evocative language in titles relating to such matters, while Westminster titles appear more measured. For example, Congress passed the Combating Autism Act ...

civil procedure, civil rights law, constitutional law, criminal law procedure, and governments

Violence shapes the lives of American Indian 1 women. By some estimates, sixty percent of all Indian women are assaulted, one third are raped, and forty percent experience domestic violence in their lifetimes. 2 Yet when these crimes occur on tribal land, a jurisdictional loophole allows some perpetrators to escape punishment entirely. Tribal governments' authority to pursue criminal charges depends on the racial status of the potential defendant: non-Indians enjoy absolute immunity from criminal prosecution in tribal courts. 3 On February 28, 2013, Congress passed the Violence Against Women Reauthorization Act of 2013 4 (VAWA 2013). The law includes a novel expansion of tribal court jurisdiction aimed at addressing this legal loophole, which "leaves victims tremendously vulnerable and contributes to the epidemic of violence against Native women." 5 Section 904 of VAWA 2013 allows tribal prosecution of non-Indians accused of domestic and dating violence crimes. 6 As the first and only statute to reverse, even if only partially, the Supreme Court's rejection of tribal courts' criminal jurisdiction over non-Indians in Oliphant v. Suquamish Indian Tribe, 7 section 904 is more than a mere jurisdictional grant. By redefining the contours of tribal authority over non-Indians, it represents a reclamation by Congress of the lead role - occupied by the Court for more than three decades - in balancing tribal sovereignty and constitutional values. VAWA 2013 is the third and most recent reauthorization of the groundbreaking Violence Against Women Act of 1994. 8 Welcomed by many as long overdue and critically ...

civil rights law, constitutional law, criminal law procedure, governments, international law, international trade law, and military veterans law

Despite the executive branch's leadership in the war on terror, 1 Congress has periodically passed legislation regarding military detention. 2 Congress's latest effort was the National Defense Authorization Act for Fiscal Year 2012 3 (NDAA), which it passed on December 15, 2011, and which President Barack Obama signed into law later that month. 4 In addition to affirming and potentially expanding the President's detention powers, 5 the NDAA extends for another year restrictions on the President's ability to transfer Guantanamo Bay detainees to the United States and foreign countries. 6 Although President Obama signed the bill into law, he issued a signing statement criticizing the restrictions on both policy and constitutional grounds, arguing that they could in certain circumstances violate the separation of powers. 7 Although flawed as policy, the NDAA's detainee-transfer restrictions do not unconstitutionally infringe upon the President's Commander-in-Chief or foreign affairs powers. 8 Rather, the restrictions are a welcome assertion of Congress's proper role in regulating wartime detention. The NDAA's counterterrorism provisions take up fourteen of the Act's 507 sections. 9 Section 1021 explicitly recognizes the President's authority under the 2001 Authorization for Use of Military Force 10 (AUMF) to detain, "pending disposition under the law of war," 11 those who were directly involved in the September 11 attacks 12 or who are "a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." 13 The section, however, expressly avoids ...

banking law, civil procedure, constitutional law, criminal law procedure, evidence, governments, and real property law

I. Introduction In United States v. Renzi, 1 the United States Court of Appeals for the Ninth Circuit was asked to decide whether a nondisclosure privilege exists under the Speech or Debate Clause ("Clause") for members of Congress. 2 The Ninth Circuit boldly refused to recognize such a privilege and found that evidence of a congressman's "negotiations," which gave rise to allegations of extortion, mail fraud, wire fraud, and conspiracy, was not protected from disclosure or prosecution. 3 The D.C. Circuit had previously concluded that the Clause gave members of Congress a nondisclosure privilege. 4 The Ninth Circuit nonetheless created a circuit split by holding that such a privilege cuts against Supreme Court precedent and "makes Members of Congress super-citizens, immune from criminal responsibility." 5 In so holding, the Ninth Circuit correctly reigned in the Clause and refused to recognize a nondisclosure privilege by properly relying upon the Clause's plain language, the framers' intent to balance power among the branches of government while preserving Congress's integrity, and Supreme Court precedent. This Note argues that the Ninth Circuit's delineation of the Clause in Renzi is correct, and that such an interpretation strikes the proper balance in fighting corruption in Congress while maintaining Congress's integrity and independence. Part II provides a brief review of the Clause's legal background. Part III summarizes the relevant facts and procedural history of Renzi. Part IV presents a brief discussion of the D.C. Circuit decision from which the Ninth Circuit split and ...

business corporate law, constitutional law, international trade law, and tax law

I. Introduction "High Court Allows Foreign Campaign Finance" 1 and other deceptive headlines contributed to popular misunderstanding 2 of the Citizens United v. Federal Election Commission ruling. 3 Somehow, journalists, law professors, think tanks, 4 members of Congress, 5 and even the President 6 confused the majority opinion. 7 In the opinion's wake, legislators have stoked fear of foreign corporate influence and have made U.S. corporations with foreign links the target of legislative proposals. The Citizens United Court, however, was not tasked with addressing - and indeed did not address - foreign political influence. At issue was the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibition on corporate sponsorship of electioneering communications, 8 and the 5-4 decision held that corporations and unions may make unlimited independent expenditures from their general treasury funds on political advertisements. 9 After Citizens United, the ban on direct contributions by corporations in 2 U.S.C. � 441b remains valid. 10 Ever since the Court's ruling (and especially in the lead-up to the 2012 elections), opponents have called for a reversal. In fact, more than two-thirds of the public opposes the Court's holding. 11 Last term, the Supreme Court Justices seized an opportunity to revisit their precedent after the Montana Supreme Court ignored Citizens United and upheld a state law regulating corporate political spending. 12 Reversing the Montana Supreme Court, the Supreme Court found the "holding of Citizens United applied to the Montana state law." 13 Neither of these cases, however, asked the Court ...

civil procedure, constitutional law, criminal law procedure, governments, international law, international trade law, military veterans law, and transportation law

Few constitutional grants of power have undergone less scrutiny than the plenary power of Congress over foreign commerce. Compared to the number of forests felled in delineating the scope of its considerably more famous interstate commerce cousin, the Foreign Commerce Clause 1 has generated very little copy since publication of The Federalist No. 11 2 in New York newspapers in 1787. But given that Congress may invoke its power to regulate foreign commerce more and more as the list of truly global concerns expands, this jurisprudence cannot long remain in desuetude. Recently, in United States v. Clark, 3 the Ninth Circuit disdained the strictures of Interstate Commerce Clause doctrine in holding that the provision of the Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today Act of 2003 4 (PROTECT Act) criminalizing international child sex tourism is a valid exercise of Congress's power under the Foreign Commerce Clause. 5 The Ninth Circuit's bid to quit the nest of interstate commerce doctrine is laudable, but its doctrinal flight may prove Icarian. Grounding the statute in the Treaty Clause and Necessary and Proper Clause may provide the necessary ballast. In 2003, Michael Lewis Clark became the first person to be charged under 18 U.S.C. 2423(c), a provision of the PROTECT Act. 6 Clark, a seventy-one-year-old U.S. citizen, maintained domiciliary ties to the United States but claimed Cambodia as his primary residence from 1998 onward. 7 Acting on information from a local NGO, the Cambodian ...

business corporate law, civil procedure, constitutional law, criminal law procedure, evidence, and governments

INTRODUCTION Any watcher of television police programs will recognize the following as familiar: You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before you answer any questions. 1 In Miranda v. Arizona, 2 the United States Supreme Court concluded that authorities must utilize procedural safeguards in order to protect the self-incrimination rights of those persons taken into custody. 3 The warnings the Court in Miranda articulated were a required prerequisite in order to overcome the pressures inherent in the atmosphere of interrogations. 4 The warnings were also a prerequisite for the admissibility of any statement made by the defendant. 5 In Dickerson v. United States, 6 the United States Supreme Court held that Miranda was a constitutional decision and could not be overturned by an act of Congress. 7 The question presented in Dickerson concerned whether 18 U.S.C. 3501 8 governed the admission of confessions or whether Miranda governed such admissions. 9 Such a question turned on whether the Miranda exclusionary rule was a constitutional requirement or whether Congress could modify such a rule. 10 This Note will first review the facts and the holdings throughout the procedural history of Dickerson. 11 Next, this Note will cite and review background cases in the ...

business corporate law, commercial law (ucc), contracts law, governments, international law, international trade law, real property law, and transportation law

II INTRODUCTION The United Nations Convention on the Law of the Sea (hereinafter LOS Convention), 1 widely considered a "Constitution for the Oceans," 2 was adopted on April 30, 1982 and opened for signature on December 10th of the same year. The Convention, consisting of 17 parts, 9 annexes, and 320 articles, entered into force on November 16. 1994. Designed to regulate the use and utilization of 70% of the earth's surface, this Convention has been praised as the most comprehensive political and legislative work ever undertaken by the United Nations. At the time this article is being written, there are 162 parties to the LOS Convention, 3 but the United States - despite being a leading maritime power and possessing the largest Exclusive Economic Zone (EEZ) and one of the longest continental shelves - has never ratified the treaty. After several years of inaction, the United States Government is once more turning its attention to this treaty. Currently, the Obama administration and Senator John F. Kerry (D-Mass.), Chairman of the Senate Foreign Relations Committee (SCFR), are pushing for Senate ratification of the LOS Convention. The administration has held interagency meetings on plans for ratification, and teams of officials have briefed some senators on the drive to approve the treaty. 4 In recent hearings by the SCFR, a powerful cast of U.S. officials has articulated their support of the treaty. 5 Nonetheless, a small but ardent group of senators continues ...

computer internet law, constitutional law, criminal law procedure, environmental law, evidence, governments, international trade law, and transportation law

I. Introduction On September 5, 2007, the Tenth Circuit Court of Appeals handed down its decision in United States v. Schaefer. 1 The decision reversed the District Court and acquitted Mr. Schaefer, who had been convicted for receipt and possession of images involving the sexual exploitation of minors, which was made a federal crime under 18 U.S.C.��2252(a)(2) and (a)(4)(B). 2 The Tenth Circuit overturned the conviction based on the fact that the Government could not prove that any of the images had traveled in interstate commerce, despite the fact that the images were sent using the internet. 3 The court reasoned that Congress had not exercised its full authority under the Commerce Clause to ban child pornography that had a substantial effect on interstate commerce and had, instead, only banned child pornography that had traveled across state lines. 4 The court intimated, however, that Congress could in fact ban purely intrastate child pornography if it wished to amend the statute. 5 On October 8, 2008, 6 President George W. Bush signed the Effective Child Pornography Prosecution Act of 2007. 7 The Act was a direct response to United States v. Schaefer. 8 Essentially, the Act is an effort by Congress to fully exercise its power under the Commerce Clause by banning child pornography that has a substantial effect on interstate commerce. 9 Few people would question Congress's good intentions in doing everything within its power to prosecute and hopefully deter those that would take advantage ...

antitrust trade law, business corporate law, communications law, constitutional law, copyright law, criminal law procedure, education law, governments, and real property law

I. Introduction The subject of this Essay is the Founders' view of copyright and the copyright power they granted to Congress in Article I, Section 8, Clause 8 of the United States Constitution, as of 1791. The year 1791 is one of several notable years - along with 1787, 1788, 1789, and 1790 - that might have been chosen. In 1787, the Founders, in their capacity as framers, drafted the United States Constitution, including the Copyright (and Patent) Clause;n1 in 1788, the several states approved the Constitution; in 1789, the Founders established the Federal Government; and, in 1790, the first Congress enacted the first Copyright Act. n2 The year 1791, however, has a special - and generally unrecognized - significance in American copyright history. In that year, the new nation adopted the Free Press Clausen3 of the First Amendment, which has a unique relevance to the Copyright Clause. Both clauses deal, among other topics, with Congress's power over the printing press (and, more generally, expression). The Copyright Clause gives Congress the power to regulate the printing of one's own writings. The Free Press Clause denies Congress any power to "abridge the freedom of ... the press." Superficially, at least, the two constitutional provisions are in conflict. And because the First Amendment was adopted subsequent to the Copyright Clause, there is at least a superficial argument that it is superior to that clause as a matter of both constitutional interpretation and public policy. n4 But ...

civil procedure, constitutional law, criminal law procedure, governments, immigration law, international law, and military veterans law

Petitioners were aliens captured abroad and detained at the United States Naval Station in Guantanamo Bay, Cuba, under authority granted to the President by Congress in the Authorization for Use of Military Force (AUMF). 1 Each petitioner was determined to be an enemy combatant by a Combatant Status Review Tribunal (CSRT), a military tribunal established by the Department of Defense. 2 The detainees sought to challenge their detentions by seeking writs of habeas corpus in the United States District Court for the District of Columbia. 3 The district court dismissed the cases for lack of jurisdiction because Guantanamo is outside the sovereign territory of the United States. 4 The dismissal was affirmed by the Court of Appeals for the District of Columbia Circuit. 5 The Supreme Court granted certiorari and held that statutory habeas corpus jurisdiction extended to Guantanamo; consequently, the Court reversed the decision of the court of appeals and remanded the cases to the district court. 6 The district court then considered the detainees' cases in two separate proceedings, with one judge holding that aliens captured and held outside the United States had no cognizable constitutional rights and another judge holding that they did indeed have constitutional due process rights. 7 While appeals to the D.C. Circuit were pending, Congress passed the Detainee Treatment Act (DTA), amending the habeas statute to strip courts of jurisdiction to hear habeas petitions from aliens detained at Guantanamo and giving the D.C. Circuit exclusive jurisdiction to review CSRT determinations. 8 In ...

constitutional law, governments, international law, international trade law, and military veterans law

I. Introduction There has been considerable national debate in recent years concerning the extent to which United States foreign policy objectives in the post-Cold War era should be pursued through multilateral organizations, and in particular through the UN. In the course of this debate, legislation was repeatedly proposed in Congress that would have significantly limited the President's authority to involve U.S. military forces in UN peace operations by prohibiting, as a general rule, U.S. military personnel from serving under non-U.S. commanders in UN operations. President Clinton opposed these legislative proposals as unconstitutional and vetoed the one version that was passed by Congress. Proposals to prevent U.S. troops from serving under foreign commanders in peace operations have continued to surface, most recently in the context of a March 1999 House resolution concerning North Atlantic Treaty Organization (NATO) peacekeeping operations in Kosovo. 3 This confirms that the subject is one of continuing significance. Because these are important constitutional issues not yet addressed by scholars and commentators, the author, on behalf of the Committee on Military Affairs and Justice of the Association of the Bar of the City of New York, undertook this comprehensive review. 4 The questions considered in this article involve classic separation of powers issues: the dividing lines between the President's commander in chief and foreign affairs powers, on the one hand, and Congress's authority to "make rules" for the government and regulation of the armed forces, on the other hand. The constitutional issues can be characterized by a ...