Monthly Archives: March 2010

brb, out of town.

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There are exactly two conferences this year that I had any interest in attending: the American Society of International Law Annual Meeting and PAX East. This meant, predictably, that they would both be scheduled for the same weekend. Drat it. Gaming vs. international law, how’s a girl possibly supposed to decide?

But I guess it’s clear where my priorities lie. The ASIL Annual Meeting is conveniently located in Washington, DC — but I’m going up to PAX East instead, whoohoo. I still think the ASIL people should have thought this through and rescheduled the conference, so as not to cause any conflicts for me, but they declined to do so.

-Susan

Cuccinelli Birther – Health Care Conspiracy, Redux

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Half of the predictions in my last post has come true. According to the Washington Post, Cuccinelli’s office confirms Virginia will sue over health care. As Cuccinelli noted, the only way he, as the AG, could get a chance to challenge the Obama birth certificate is “only if there is a conflict where we are suing the federal government for a law they’ve passed. So it’s possible.” Looks like he found his chance. According to the AG’s letter to Rep. Pelosi,

[T]o be validly enacted, the Senate bill would have to be accepted by the House in a form that is word-for-word identical. Should you employ the deem and pass tactic, you expose any act which may pass to yet another constitutional challenge. (Emphasis added.)

And just what, pray tell, are the ‘other’ challenges? That the Bill was not signed into law by a valid president?? You heard it here first, folks.

-Susan

Could the Virginia Attorney General Use Federal Health Care Reform to Bring the Obama Birth Certificate Controversy to Trial?

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h/t Blogasm

Virginia Attorney General Ken Cuccinelli has been learning the hard way that prohibiting educational institutions from prohibiting discrimination against gays and lesbians is not a good way to make friends. He is also learning that it tends to lead to an unwanted increase in scrutiny from the public. Although Cuccinelli was not a name anyone not unusually dedicated to Virginia politics would know, that all changed after he told Virginia universities that they were not allowed to forbid discrimination based on sexual orientation.

As a result of this new-found notoriety, a blogger has turned up an audio clip in which Cuccinelli speaks about his possible “birther” beliefs:

Q What can we do about Obama and the birth certificate thing?

Cuccinelli: It will get tested in my view when someone… when he signs a law, and someone is convicted of violating it and one of their defenses will be it is not a law because someone qualified to be President didn’t sign it.

Q: Is that something you can do as Attorney General? Can you do that or something?

Cuccinelli: Well only if there is a conflict where we are suing the federal government for a law they’ve passed. So it’s possible.

Ouch. I bet today wasn’t a very fun day for the AG’s office.

For the record, no, I don’t actually think it’s even remotely likely that Cuccinelli intends to launch such a campaign challenging the validity of all post-Obama federal enactments. But clearly Cuccinelli has at least thought about the quest as an academic matter, so I’m allowed to do so as well.

And Cuccinelli’s right. He very much could institute a suit challenging President Obama’s qualifications for the presidency. And given his office, such a case would likely be taken a lot more seriously than anything instituted by lawyer-dentist Orly Taitz.

So assuming Cuccinelli did intend to argue in court that Obama is not the lawful president, where might he find such a possible conflict between Virginia and federal law to bring the case to court?

Well, conveniently, the Virginia state government recently enacted what is potentially the perfect vehicle for such a law suit: the Virginia health care nullification bill. (Of course, Cuccinelli would have to beat out the Florida Attorney General if he wanted to be first to challenge it in court.)

Nullification refers to the practice of states passing legislation that purports to contradict or nullify a federal enactment. Under the Supremacy Clause, the theory of nullification does not have much of a legal leg to stand on, though it remains as a fairly powerful form of symbolic protest by states against the federal government.

Most legislators know this, and do not seriously believe that a nullification law can do what it purports to. This is somewhat problematic in its own right — as a general rule, and ignoring my own personal opinions on the desirability of a federally enforced individual mandate, I strongly dislike the idea of states deliberately passing unconstitutional laws in order to make a political point.

Moreover, the last time Virginia engaged in a campaign of nullification was back in the 1950’s, when Virginia passed a series of laws resisting desegregation, using a number of different convoluted legislative strategies to try and avoid the force of federal law. These attempts were eventually struck down by federal courts.

Nevertheless, Virginia went ahead and became the first state to enact a bill that purports to negate any potential federal health care bill that would require citizens to purchase insurance. The bill

“[p]rovides a resident of the Commonwealth shall not be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services … The measure also states that no provision of Title 38.2 renders a resident liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage.”

If this bill were ever challenged in court, and the commerce clause challenges to it were swatted aside, Cuccinelli could always argue that the Virginia statute is lawful because the supposedly preempting Federal health care bill was not signed into law by a Constitutionally valid president.

So if Cuccinelli really wanted to go ahead and prove that Obama was some sort of Constitutional changeling, with his qualifications for the Presidency switched at birth, assuming a federal bill with a provision for individual mandates ever gets passed, he’ll have his chance.

-Susan

Gay Rights as Economic Policy

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Whether or not sexual orientation can be made a protected class by Virginia agencies has been a very prominent news topic the past few weeks. When Governor McDonnell eliminated anti-discrimination protections for gays and lesbians, I doubt he expected a political quagmire to erupt. The heat on McDonnell only got worse last week when Attorney General Cuccinelli issued an opinion stating that Virginia’s public schools and colleges were prohibited from treating sexual orientation as a protected class.

Those opposing Governor McDonnell policies, however, now have a new argument to add to their list of reasons reversing McDonnell’s exclusion of gays and lesbians from state protection: economic policy.

Although gay rights have long been debated on the basis of morality, human rights, and equality, the current debate in Virginia has started to strike a rather pragmatic tone. While the Falls Church School Board reacted to Cuccinelli and McDonnell’s recent actions by defying the State government and adding gays and lesbians to its anti-discrimination policy, the Falls Church Chamber of Commerce has released a (draft) statement focusing on the fiscal considerations. If McDonnell’s policies stand, they argue,

“[M]any new and relocating businesses will choose to avoid Virginia because this posture on discrimination (by Cuccinelli-ed.) will have a profoundly chilling effect on prospective employees, contractors, vendors and customers… Surveys confirm overwhelmingly that those seeking employment in the high-tech sectors of the national economy, such as defines the predominant economic growth of Northern Virginia, hold very strongly to values of equal rights and justice for all persons.”

This is more than a hypothetical. Northrop Grumman, a California-based company, is planning to move to the East Coast — the mid-Atlantic, to be precise, and Virginia, Maryland, and D.C. are all courting the corporation. Last month, a Maryland representative wrote a letter to Northrop suggesting that Maryland would make a better new home for the company, as it does not have the exclusionary policies Virginia does.

Yesterday, however, a State Senate panel voted to add the following language to a bill designed to encourage Northrop Grumman to relocate to Virginia: “The Commonwealth of Virginia maintains an ecumenical atmosphere in its sexual orientation hiring policies in the private and public workforce.”

And passing this sort of legislation makes sense, from the perspective of a state seeking to vitalize the local economy. On first blush, whether or not Virginia provides protections to gays and lesbians wouldn’t seem to be an important business consideration, as State discrimination policies have no effect on a private corporation’s own internal regulations. However, it could make a very real difference in acompany’s operations, through affecting the signaling strategies the company hopes to adopt as well as the quality of the local talent it hopes to recruit. A state with an open minded and modern view on gays rights may well prove to be a better source of the dynamic, modern work force that corporations need in order to synergize and break the paradigm, or whatever else it is big corporations do.

A company could also help establish a “hip and vibrant” image by settling in a more socially progressive state in order to improve its corporate branding. For instance — and no offense intended to my home state’s lovely next door neighbor — but if Google were based in Alabama instead of Northern California, it would probably not have succeeded in attracting a lot of the young, college-educated talent that it does have.

Unfortunately, the gay-friendly language was eliminated from the Bill today, showing that Virginia is not quite ready to embrace gay rights as a fiscal policy initiative. This whole episode, however, does indicate the potential of using market forces as a way to promote human rights.

-Susan

“Untreated Chronic Pain Violates International Law”

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When I saw the above headline, it struck me immediately as a possible contender for the Most Absurd Claim To A Customary Norm of International Law Yet. (Even one of my long time favorites, the ATS case involving the use of under-aged camel jockeys, had a better basis.) Although there is a very good case to be made that, under international law, states have a duty to avoid causing chronic pain in their citizens, there is hardly one whit of support for the idea that they are obliged to treat it.

It turns out the story is based upon a Human Rights Watch Report [PDF] that presents access to narcotics and relief from chronic pain as a human right enshrined under international law. Somewhat surprisingly, HRW starts not with a CIL argument, but claims that that the right to treatment of chronic pain is a treaty based obligation. For this they cite a single paragraph of the preamble of the Single Convention on Narcotic Drugs of 1961, which provides that the signatory states are

Concerned with the health and welfare of mankind, [and]

Recogniz[e] that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes…

Unfortunately for the HRW report, however, the Convention was clearly not intended to address the availability of pain medication, but rather was entered into by states in an effort to curb cross-border drug trafficking. “Pain” or “suffering” is not mentioned again in the treaty’s text. Even giving it the most generous interpretation, all this language signifies is that the object and purpose of the treaty is to reduce world drug trafficking while not also prohibiting the legitimate medical use of narcotics.

The HRW report also undermines any claims that the Single Convention on Narcotic Drugs of 1961 is the basis of a customary norm that has developed since the treaty entered into force. According to the HRW report, “approximately 80 percent of the world population has either no or insufficient access to treatment for moderate to severe pain.” Given the total absence of any opinio juris on the subject, a mere 20% compliance rate does not a norm make.

I will not even address the report’s batpoop crazy claim that the well established and more-or-less globally accepted norm against cruel, inhumane, and degrading treatment applies to chronic pain, because “[a]s part of this positive obligation [against CITD], states have to take steps to protect people from unnecessary pain related to a health condition.” Seriously, HRW?

I suppose I could accept that the right to treatment of chronic pain qualifies as an aspirational norm, albeit a pretty weak one. The World Health Organization does list codeine and morphine on its Model List of Essential Medicines, a list signifying those drugs which states should endeavor to make available to all of their citizens that need them. But that’s about the most I can say for the study’s claims.

Of course, all of this is definitely not to suggest that the report does not in fact identify a genuine problem. As HRW notes, “Burkina Faso estimates that 8 people need morphine per year. Gabon estimates 14. The Gambia, 31.” Hard to argue with a need for education and reform there. But by cloaking every worthy policy suggestion in a nonsensical guise of “international law,” HRW is actually undermining the rule of international law on the global plane.

-Susan

Samantar v. Yousuf…

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… was anticlimactic. Although we succeeded in running into quite a few GW Law people, we did not succeed in getting seated. (I may have succeeded in getting frostbite, however.)

Poor Michael was #52 in line, and they only let a grand total of 50 in. So he has the distinction of being the second loser. Although the first loser had it worst — it was the second time in which he had been the first person to not get seated at a hearing. I will accept some responsibility for us missing the hearing, as I had the bright idea of changing our meet up time from 6am to 7am. Poor form, I know.

The guards stationed in front of the steps informed us that it had been less crowded for friggin’ McDonald than it was for Samantar, which is ridiculous, because it was rainy and cold and Samantar does not involve guns.

Also I still maintain that Michael lost his spot to Harold Koh, who came waltzing across the plaza with his entourage about five minutes before the oral argument started. Excuse me, sir, I do not believe that the U.S. is a party to this case, so you can just go wait in line with the rest of us, thank you very much.

Anyway, as a very poor consolation prize, we were at least in the first group for the silly 3-5 minute viewing exercise they have for tourists. Didn’t really see or hear much, though. The transcripts are up for the case now, but I think at this point I will have to put off reading it until tomorrow. Will probably have more thoughts then.

But I swear, if I ever find out that that class of 8-10 year olds that was let in got seated and we didn’t, I will lose all faith in American democracy.

-Susan

Samantar v. Yousuf, Last Minute Thoughts

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There are two questions in Samantar v. Yousuf that I suspect almost certainly will not get addressed in the morning, at least not in any substantive way, but I’ll post them here now in the hope that I am wrong and I’ll be able to talk about them in greater length tomorrow. These would be:

(1) The statehood of Somalia v. Somaliland, and the ability of the former to adopt the acts of officials that took place in a territory it no longer has any control over, outside of legal fiction. Obviously even if they do bother with the question, the Court will end up punting it to the political branches and making their recognition the be-all end-all, but I would still love to see statehood get addressed in one of the Justice’s opinions. Even better would be for the Court to address the factual issues regarding Somalia or Somaliland’s existence or non-existence, but I won’t hold out hope for that.

(2) The Constitutional question of FSIA’s purported grant of personal jurisdiction over state officials via service of process. If petitioner succeeds on his arguments, there could be a problem with FSIA’s provision for service of process over foreign states — namely, service of process (done anywhere, not just tag-service) is considered sufficient for obtaining personal jurisdiction over a state. But if officials = state for purposes of the FSIA, allowing mere service to create personal jurisdiction for foreign official defendants would create a Constitutional due process issue.

I mostly want #2 to be addressed because I would love to see the Supreme Court finally address the giant gaping inconsistency in U.S. law that is our personal jurisdiction jurisprudence. Since personal jurisdiction is a question of Fifth (or Fourteenth) Amendment due process, if petitioner prevails, we could, at least theoretically, wind up with some interesting issues of the “Constitutional rights” of foreign states that have never had contact with the U.S.

At any rate, I’m sure there will be some amusement to be had tomorrow, out of the slight irony in the case that the side most heavily relying on the support of international law and argues that the court should find it has expansive powers to decide the questions involved is the side hoping that the Court does not find jurisdiction to hear an ATS/TVPA claim, while the side that is calling for a strict adherence to the separation of powers and arguing that any judicial interference would result in Dire Consequences is the side hoping that the court does hear the underlying claim. Strange bedfellows, and all that.

For what it’s worth, I’m rooting for the respondent. Jurisdiction should be found here — to do otherwise would lead to absurd results. That a given defendant claims to have been some sort of official office holder for some sort of government that may have once existed is not sufficient to give him a blanket claim to immunity in U.S. courts. Rather than making this a jurisdictional matter, this case should be heard on a substantive level, with the act of state doctrine helping to provide the proper rules of decision.

Plus, finally, the fact Samantar cherry picks between the multitude of “Somali” governments to find a couple that support his claim is hilarious. If you’re trying to claim sovereign immunity, referring to “the transitional governments,” plural, of your supposed State does not much help your case. If any warlord in Somalia with enough followers can claim to be the sovereign, why on earth should the FSIA or international law believe that Samantar managed to siphon off some immunity for himself?

-Susan