Downes imports oranges, forced to pay taxes
Downes says U.S. Citizen *
sues customs: P.R. = U.S. = Constitution
Uniformity Clause
So, there should be no tax
No Jurisdiction
Diversity of citizenship
articles of confederation 1776 -(1781)-1792
it is possible to imply an intended extraterritorial effect
of u.s. domestic law.
it is possible, but much less likely, to imply a domestic
effect and/or self execution to a u.s. treaty.
Issue: ISSUE– does the u.s. constitution apply to puerto
rico
Rule:
Constitution applies as to fundamental rights
overseas proportionally to actual governance ability.
Application: Taxation with representation and Uniformity
Application
p.r. = overseas
governance ability = rule of law but spanish law and<
language.
ARE THESE FUNDAMENTAL RIGHTS?
1) taxation w/ representation = fundamental.
2) uniformity not fundamental.
1) Was not argued! Is fundamental bc of revolution.
2) was not fundamental, thus did not apply.
is not fundamental and personal i.e. individual.
is collective — purpose is to protect states from
discrimination and to form a common external tariff.
Conclusion
the uniformity clause will not apply.
=================================
de jure
de facto
Boumediene: Does constitution apply to Guantanamo (Gitmo — detainees)
Does habeas corpus apply to Gitmo?
Habeas as a check
De facto and de jure sovereignty?
Multifactor test in the totality of the circumstances [which factors? what weight?]
*citizenship
*place
*practical obstacles
[critique: vague.]
Historical argument: What did England do?
U.S. a successor state to the U.K.
Analogies: India, Ireland, Channel Islands, Hanover
habeas is a fundamental right
which applies to non-citizens
in areas under de facto or de jure control of the u.s.
[depending only on circumstances going to physical security, practical implementation of the theoretical right]
Fundamental freedoms — abstract deductive principles. [critique: conclusory.]
=================================
multi-factor interest analysis
(sometimes called “balancing” — balancing competing interests)
open textured
*which factors?
*what weight?
If a+b+c>d then guilty.
parsimony judge only decides what they must.
we dont need to say whether a+b were greater than d!
analogical reasoning
this case is like that case for these reasons
thus the same rule applies.
is then you _distinguish, this decision from the other decision
i.e. you _qualify
looks to substance, results, not form.
===========================
Facts
THERE IS A PRESUMPTION OF LEGALITY!
*Separation of powers — president’s role is to lead foreign policy. One voice.
*federal lism. — the foreign policy is federal, not state.
Boycott on burma by Mass.
Boycott on burma by feds
Boycott on burma at federal level is after the state law.
Boycott on burma at federal level is less restrictive than the state level.
ISSUE
Whether the federal boycott regulation
and Massachusetts boycott are consistent and enforceable
[?]
does the federal supremacy clause and or the federal international commerce power and or the federal foreign affairs power preempt (displace) the state law?
Rule:
federal preemption of the state law will occur when there is an actual contradiction and _____.
arguments:
congressional law gave the President the power
constitution gives the President plenary power over foreign relations
counterarguments
*purpose of law is to protect fundamental human rights – an important goal!
*this is mass. money!
–budget.
–tax?
–corporation
amicus curia = friend of the court
human rights groups often bring these.
Foreign Commerce
Gewohnheitsrecht
Customary international law
=
praxis – was ist gemacht. what they do.
+
opinio juris – was soll gemacht. what they ought to do
internationally true! universel
jus cogens = non-derogable
piracy
slave trade
genocide
war of aggression
torture
*{sex tourism. child sex}
lex lata = positive binding law
de lege ferenda = laws which are forming.
universal. EVERY State i.e. lawmaker hates it!
*mutual concern.
nuclear weapons?
*no first use
every state MAY enforce.
no state MUST enforce.
i.e. if the state does NOT enforce the norm too bad so sad.
other states can demand extradition of the jus cogens criminal.
conventional law (treaty) can form
positivism = binding law.
natural law has several definitions
-divine law (Gottesrecht) : this one is nonsense.
-law of reason (Vernunftrecht) : this one is not.
Some laws are universal (jus cogens) = natural.
Other laws depend on time and place (legal somewhere illegal elsewhere) = positive.
jus cogens.
universal jurisdiction.
not all customs are jus cogens.
not all universal jurisdiction is jus cogens.
Massachusetts Burma Boycott – Crosby
-Medellin concerned One person, and a criminal
-Crosby concerns an entire country, and businessmen
Federal supremacy clause preempted earlier state law.
RULE
If the federal and state law create conflicting obligations and the state law interferes with the purpose of the federal law then the state law will not be enforced.
REASONS…
Foreign Commerce Clause
Foreign affairs power
Presumption of constitutionality
Presumption of legality
Dormant commerce clause: federal government’s power to regulate interstate commerce implies states have no power to regulate interstate commerce due to the supremacy clause.
(A paralell concept is substantive versus procedural due process: the current view is there is no substantive component to due process see the word process it is a procedural word. contrary argument: “law of the land” provision, also the preamble)
================================================
Tonights lectures will be looking at issues around separation of powers (checks and balances) and federalism (role of states and federal government
dualism – 2 legal orders — u.s. treaties
presumed to have no domestic effect.
1) Text we have text here to show this treaty has direct domestic effect?
2) Context — grammar , structure
3) Historical
4) Purpose.
monism – 1 legal order — as to customary law u.s. is monist.
Medellin: Colombian criminal captured in texas,
wanted to have habeas corpus
not given consular rights.
vienna convention: does not apply
??
ICJ (international court of justice case)
Is the vienna convention directly effective in the U.S.
Separation of powers
Self executing – law is part of U.S domestic law.
Direct effect – private person has a right which they themselves can enforce without the state acting.
Third party effect – private parties having rights and duties against each other based on public law (constitution, treaty)
Unratified treaty isn’t self executing (even if the language of the treaty says it is?)
Ratified treaty which does not say it is self executing will be presumed not to be given domestic effect.
Ratified treaty may be self executing if the language says it is.
President cannot make a treaty domestic law. Senate/Congress must transpose the law into domestic law.
Interpretation:
1) Text
2) Context — grammar, structure
3) History
4) Teleology.
Originalism (text)
versus
Interpretivism (teleology)
because
history is not always known, sometimes contradictory.
Medellin majority: text is clear.
Dissent: yeah, but
======================================
STRUCTURING ARGUMENTS
*Presumptions.
-of constitutionality
-of legality
-non contradiction
*Burden of Proof.
-movant bears burden of proof
*Parsimony: Judges only decide what they Must, and leave anything else for some other time.
concepts:
affirmative/negative
substance/procedure
*relevant, not dispositive – Boumediene