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Roper, Foreign Law, and Separation of Powers

Roper indicates that the next bugaboo of constitutional law will be incorporating foreign law as part of the ratio decendi.  In Roper, Justice Kennedy wrote for a 5-4 Court:

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10.11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

International law expert Julian Ku noted that "the U.S. government has specifically reserved to the question of the execution of juveniles in signing and ratifying the ICCPR and in signing the Convention on the Rights of the Child," and may have reserved the issue in every other foreign source cited.  Now comes the issue.

Under Art. II, sec. 2, cl. 2, the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur [ ]."  Under the treaties cited, the President and the Senate determined that international legal prohibitions against the death penalty would not apply.

But the Roper Court used these treaties as a basis for its decision.  In so doing, the Court ursurped the Treaty Clause power from the President the Senate.  It relied on provisions of international treaties that the President and the Senate rejected.  That, good readers, is the biggest injustice of Roper.

Justice Kennedy has talked a good separation of powers talk.  In Clinton v. City of NY, he wrote:

Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty.  The Federalist states the axiom in these explicit terms: ‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands...may justly be pronounced the very definition of tyranny.'

Justice Kennedy has also partially walked the walk.  In Clinton v. NY, Justice Kennedy concurred with the majority in denying the President a line-item veto, thereby ensuring that the Executive shall not have legislative powers and that no bill shall become law absent Bicameralism and Presentment. Justice Kennedy wrote the majority opinion for in City of Boerne v. Flores, where the Court struck down the Religious Freedom Restoration Act and thus denied Congress the power to interpret the substantive protections provided under the 14th Amendment.  Congress is limited to enforcing Constitutional rights through the use of its Section 5 power but it may not draw the countours of Constitutional rights, since it is the power of the judiciary to say what the law is. 

Justice Kennedy's separation of power jurisprudence also makes liberal use of justiciability doctrines to further separation of powers.  In Nixon v. United States Justice Kennedy joined the Court in holding that processes used by Senators for impeachment trials is a nonjusticiable under the political question doctrine.  The Constitution allows for the Senators to “try” those who have been impeached, thereby demonstrating a textual commitment to a co-equal branch.  Also, in Gonzaga University v. Doe, Justice Kennedy joined the strong language of the Court making clear that it is not proper for Federal Courts to imply private rights of action unless Congress clearly and unambiguously manifests its intent for a private remedy.

In City of Boerne, Justice Kennedy offered Congress a stark reminder:

Under our Constitution, the Federal Government is one of enumerated powers.  The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. 

The judicial power is limited, and does not include the power to ratify treaties.  But Justice Kennedy ignored separation of powers in a wilfull move to allow the Courts to cite as persuasive authority treaties rejected by the other two branches - and in whom the authority to make international law resides.

Some argue that there was no harm in citing the treaties.  This might be true had the President and the Senate not explicitly rejected the provisions cited by the Court.  But where co-branches of government with the enumerated power to adopted the treaties act, the Court must defer to those two branches and not rely (in any way) on the rejected provision of the treaties.

Thanks for  Prof. Bainbridge for the link to Prof. Wu's post.

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