From Cork to Toronto

So said Judge Anna Diggs Taylor in her opinion calling a halt to the warrantless, FISAless tapping of phones by US intelligence (sic) agencies. Slate has what seems a good article here , noting its follow-on to Hamdan vs Rumsfeld . Let's hope a similar, thorough examination of signing statements is not far behind. Taylor quotes Justice Black: The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who make laws which the President is to execute. The first section of the first article says that 'All legislative powers herein granted shall be vested in a Congress of the United States' Taylor ends by quoting Justice Warren: Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the ...

According to Adam Cohen in the New York Times (rego required or use Bugmenot) seminars on the Rehnquist Court are avoiding discussion of perhaps its most historic case . Cohen argues that Bush vs Gore was right in law but wrong in remedy, and that Democratic petitioners attempting to use Bush vs Gore to ensure electoral fairness are winning in lower courts but being reversed when the cases are heard en banc at the District Courts of Appeal. There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power. The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not). Elections that systematically make it less likely that some voters will get to cast a vote that is c...

As a non-lawyer, reading a dense judgement riven with partial joinings and multiple dissents such as this week's 185 page Hamdan versus Rumsfeld from the United States Supreme Court, it is difficult to make sense of the legal appropriateness of the 5-3 decision, with Justice Kennedy siding with the majority and Chief Justice Roberts abstaining due to involvement in previous Court of Appeals proceedings. I can only go with my gut instinct which is to agree with Justice Breyer's comments: Congress has not issued the Executive a “blank check.” [...] Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengt...

The Supreme Court of the United States recently decided Rumsfeld vs Forum for Academic and Institutional Rights, Inc. A coalition of American law schools whose policies denied the US military equal access to career facilities at those schools under non-discrimination policies were fighting the Solomon Amendment . This statute ( 10 U.S.C. § 983 ) allowed the US government to withhold federal funding to those institutions who refused the military access equal to any other employer receiving the most favourable treatment. The non-discrimination policies related to the treatment of homosexuals in the military, including the "don't ask, don't tell" policy which was instituted under President Clinton. I noticed the judgement first at Mental Meanderings in a post headed " Can't stop them now " which referenced SCOTUSblog's coverage . Somewhat irritated, in comments I pointed out to Fiona that Chief Justice Roberts had said quite the opposite - The Solom...