In Shielding US from Legal Obligations, Kavanaugh Conflates International Law with Foreign Laws

Supreme Court nominee Brett Kavanaugh has nothing but contempt for international law. But he has shown uncritical deference to executive power, particularly in the so-called war on terror cases, argues Marjorie Cohn.

By Marjorie Cohn

The two primary sources of international law are treaties, and what’s known as “customary international law.” Ratified treaties are part of domestic U.S. law under the supremacy clause of the Constitution, which says treaties “shall be the supreme law of the land.” Furthermore, it has long been established that customary international law, which arises from the consistent and general practice of nations, is also part of U.S. law.

Although he professes to interpret the Constitution as written by the founders, Kavanaugh has apparently overlooked the supremacy clause and simply scorns customary international law.

Jordan Paust, international law scholar and professor emeritus at University of Houston Law Center, told me in an email, “The unanimous views of the Founders, Framers, and Supreme Court Justice opinions is that the President and all members of the Executive Branch are bound by international law.” Paust also referenced a 2016 article he wrote in the Houston Journal of International Law documenting this fact.

Kavanaugh, however, erroneously conflates international law with foreign law. The U.S. agrees to the terms of treaties it ratifies. And in most instances, the United States can opt out of a customary international law norm if the U.S. objected while the norm was being developed. Foreign law, on the other hand, is the law of other countries — such as French law, German law, etc.

In the 2016 case of Al Bahlul v. United States, a Guantánamo detainee argued that since “conspiracy” was not an offense under the international laws of war, he should not be tried for conspiracy before a military commission.

Kavanaugh: Doesn’t seem to know difference between international and foreign law.

Kavanaugh’s concurrence in that case characterized al-Bahlul’s argument as “extraordinary” because “it would incorporate international law into the U.S. Constitution as a judicially enforceable constraint on Congress and the President.”

That would mean, Kavanaugh cynically wrote, that wartime decisions made by the president and Congress to try unlawful enemy combatants before military commissions “would be subject to the dictates of foreign nations and the international community, as embodied in international law.”

He added: “The federal courts are not roving enforcers of international law. And the federal courts are not empowered to smuggle international law into the U.S. Constitution and then wield it as a club against Congress and the President in wartime.”

Kavanaugh and the War on Terror

For 12 years, while serving as a judge on the D.C. Circuit Court of Appeals, Kavanaugh had the opportunity to rule on several cases stemming from the “war on terror.” In nearly all of them, he demonstrated nothing but disdain for international law and an uncritical deference to executive power.

During the Bush administration, the Supreme Court checked and balanced the executive branch in several war on terror cases. They included Rasul v. Bush (which established that federal courts have jurisdiction to hear Guantánamo detainees’ habeas corpus petitions); Hamdi v. Rumsfeld (which held that a U.S. citizen held as an enemy combatant has due process rights to contest his or her detention); and Hamdan v. Rumsfeld (which concluded that Bush’s military commissions violated the Uniform Code of Military Justice and the Geneva Conventions).

In 2008, the high court ruled in Boumediene v. Bush that Guantánamo detainees held as enemy combatants have the right to file habeas corpus petitions in U.S. federal courts to challenge their detention.

But in the wake of the Boumediene decision, Kavanaugh tried to neuter detainees’ habeas corpus rights in cases that came before him on the Court of Appeals, such as Omar v. McHugh and Uthman v. ObamaUniversity of Texas law professor Stephen Vladeck noted in a 2011 article that since Boumediene was decided, commentators “have accused the D.C. Circuit in general — and some of its judges in particular — of actively subverting [Boumediene] by adopting holdings and reaching results that have both the intent and the effect of vitiating the … decision.”

Prominent among those judges is Kavanaugh,” Edith Roberts wrote at SCOTUSblog. 

In the 2010 case of Al-Bihani v. Obama, Kavanaugh ruled that the Authorization for Use of Military Force (AUMF), under which al-Bihani was held as an enemy combatant, should not be interpreted in light of the international laws of war.

Kavanaugh wrote, “International-law norms that have not been incorporated into domestic U.S. law by the political branches are not judicially enforceable limits on the President’s authority under the AUMF.”

A Dangerous Presumption

Paust: Kavanaugh, “ahistorical” and “anti-constitutional.” (Photo: Cornell Law School.)

Paust noted in a law review article that Kavanaugh “embraced and basically relied merely on a radical ahistorical and ultimately anti-constitutional minority viewpoint” in that statement.

Kavanaugh “prefers a radical and dangerous view that ‘courts may not interfere with the President’s exercise of war powers based on international-law norms that the political branches have not seen fit to enact into domestic U.S. law,’” Paust wrote.

In fact, Kavanaugh twisted the law to reach what appear to be politically motivated results. Paust opined, “Bias is strikingly evident in [Kavanaugh’s] non-judicious use of the phrase ‘lurking international-law.’”

This sardonic mischaracterization of law,” according to Paust, “is one that [Kavanaugh’s] former colleagues in the White House (for example, [Alberto] Gonzales, [George W.] Bush, [David] Addington, and [Dick] Cheney) might have appreciated during their infamous era of serial criminality orchestrated in the White House.” But, Paust added, “it is decidedly out of place in an impartial appellate chamber within the judicial system of the United States.”

Another example of Kavanaugh’s disrespect for international law and fondness for executive power is the 2009 case of Kiyemba v. Obama.Seventeen Uighur men found to be unlawfully detained at Guantánamo feared being returned to China in violation of the United Nations Convention Against Torture and a federal statute, given the likelihood that they would face torture upon their return. Kavanaugh took the position that courts must defer to the president’s determination of whether there is a likelihood of torture upon return. Most of the Uighurs were ultimately relocated to other countries, but many remain in detention.

Kavanaugh’s deference to the president goes even further. In a 2014 law review article, he wrote that the take care clause of the Constitution requires the president to enforce the law, “at least unless the President deems the law unconstitutional, in which event the President can decline to follow the statute until a final court order says otherwise.” Kavanaugh would create a dangerous presumption in favor of a president who refuses to follow the law.

If confirmed to the Supreme Court, Kavanaugh will almost certainly defer to the president’s wartime decisions during the perpetual war on terror. He will likely extend that deference to Donald Trump’s immigration policies under the guise of “national security.” And Kavanaugh’s frightening theory will encourage the president to disobey any law he deems unconstitutional, including customary and treaty-based international law.

Copyright © Truthout. Reprinted with permission

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of Veterans for Peace. The second, updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, was recently published.

32 comments for “In Shielding US from Legal Obligations, Kavanaugh Conflates International Law with Foreign Laws

  1. August 2, 2018 at 15:04

    The American Constitution is the prevailing Law in all U.S. jurisdictions, period. The notion that the American Bill of Rights is “flexible” or modifiable by the Supreme court may be a pleasant fantasy, but it is simply not based in fact. See the Enactment Clause for further information.

    The “Law of the Land” (not of the Sea) is the prevailing principal in Common Laws based on the Will of the People. Admiralty Courts are another story altogether. Perhaps Mr. Kavanaugh needs to read up on these details, before he pops off with more of the sort of nonsense he has become so famous for…

    Excerpted from: Law of the land – Wikipedia >
    “The phrase law of the land is a legal term, equivalent to the Latin lex terrae, or legem terrae in the accusative case. It refers to all of the laws in force within a country or region including statute law and case-made law.”

    Please review the remaining text on cited page for further clarification.

  2. August 2, 2018 at 12:40

    The mischief that followed nine eleven is enormous and not considering any conspiracy theories about nine eleven, there is little doubt that the movers and shakers were waiting for the opportunity to authorize perpetual war and a big brother society. Almost as if they pounced when it happened. It appears unlikely that such an enormous blue print to change our society so drastically could have been created overnight.

    • irina
      August 2, 2018 at 19:17

      Only eight days after 9-11, a glossy commemorative ‘album’ appeared on the
      checkout aisle magazine racks way up here in Fairbanks, Alaska (we have two
      large military bases nearby). The cover featured the iconic ‘Iwo Jima’ style
      picture of the firefighters. The magazine featured over 100 pages of shiny pictures.

      Who, I wondered, had the resources to get such an item compiled, printed and
      shipped clear across the country to be displayed for sale in only EIGHT DAYS ?

      I looked for info on the publisher. Nothing. NO title page, no photo references,
      nothing. Finally, buried in the back on an inside margin, I found some tiny print
      marching up the spine side of the magazine. I had to turn it sideways to read it.

      “A Publication of the Department of Homeland Security” was all it said.

      And that was all I needed to know to start my own ‘What Really Happened on 9-11 ?’

  3. Alcuin
    August 2, 2018 at 11:15

    I’m not sure how I feel about Kavanagh, but a problem with this article is that after mentioning “customary international law” in the first sentence, the author subsequently drops the important qualification “customary”. The traditional (Roman) idea here is the “ius gentium” as a source of law — something US prosecutors had to rely upon at Nuremberg. It wouldn’t necessarily apply to some of the newfangled “rights” that have been discovered recently. So one could argue that the author conflates “customary” international law with “contemporary” international law.

    A second problem is that it ignores the foundational context of the “separation of powers” or checks and balances argumentation employed by K. – the idea that there are constitutional checks on the judiciary branch as well.

    “Congress enacted the AUMF with knowledge that the U.S. Constitution and other federal statutes would limit the President’s conduct of the war. But neither the AUMF’s text nor contemporaneous statements by Members of Congress suggest that Congress intended to impose judicially enforceable international-law limits on the President’s authority under the AUMF.”

    “In sum, a FEDERAL COURT lacks legitimate authority to interfere with the American war effort by ordering the President to comply with international-law principles that are not incorporated into statutes, regulations, or self-executing treaties.”

    “[T]he limited authority of the JUDICIARY to rely on international law to restrict the American war effort does not imply that the political branches should ignore or disregard international-law norms. The principles of the international laws of war (and of international law more generally) deserve the respect of the United States. Violating international-law norms and breaching international obligations may trigger serious consequences, such as subjecting the United States to sanctions, undermining U.S. standing in the world community, or encouraging retaliation against U.S. personnel abroad. Therefore, CONGRESS and the PRESIDENT are often well-advised to take account of international-law principles when considering potential legislation or treaties. And even when international-law norms have not been incorporated into domestic U.S. law, the Executive Branch, to the extent permissible under its constitutional and statutory authority, is often wise to pay close attention to those norms as a matter of sound policy, international obligation, or effective foreign relations.

    “But in our constitutional system of separated powers, it is for Congress and the President – not the courts – to determine in the first instance whether and how the United States will meet its international obligations. When Congress and the President have chosen not to incorporate international-law norms into domestic U.S. law, bedrock principles of judicial restraint and separation of powers counsel that courts respect that decision.”

    • Ed
      August 2, 2018 at 14:14

      I do know how I feel about Kavanaugh. Kavanaugh was on the crooked team of Ken Starr and was one of Star’s lackeys who helped cover up the murder of Vince Foster and to downgrade the investigation into the Clintons’ real crimes including financial corruption and murder so that Clinton could be shielded from impeachment charges for actual crimes and just face charges of marital infidelity.

      On that score, Brett Kavanaugh knows a lot about “shielding”. He is obviously unqualified for even the positions he has held up until now and would be a very bad Supreme Court justice.

  4. Jaque
    August 1, 2018 at 21:46

    This alone makes Kavanaugh a superior Supreme Court Judge.

  5. anastasia
    August 1, 2018 at 17:25

    Kavanaugh sounds like the man Trump needs for a war with Iran.

  6. anastasia
    August 1, 2018 at 17:13

    In truth, Kavanaugh is not following the constitution of the United States as it concerns treaties. Apparently, he is not a “strict constructionist” as it concerns the US constitution. This sounds very much like the Kavanaugh some of us know – the Kavanaugh who was the US attorney hired by the Special Prosecutor investigating Vince Foster’s death. Miguel Rodriguez was hispredecessor US attorney who was not permitted to investigate that murder and resigned in protest. Kavanaugh took over for Rodriguez and covered up the whole thing. That’s how he got his federal judgeship. It was over the dead body of Vince Foster. Kavanaugh should be a “great” judge. He fits right in.

    • Gregory Kruse
      August 2, 2018 at 11:10

      The only other candidate that would rival him in creepiness is Roy Moore.

  7. rgl
    August 1, 2018 at 13:47

    The ‘Law of the Jungle’ is the only ‘law’ amerikkka practices.

  8. Joe Tedesky
    July 31, 2018 at 23:45

    Ever since Earl Warren penned his name to the Warren Report did I lose all faith in our Supreme Court judiciary.

    • Alcuin
      August 2, 2018 at 09:11

      I dropped out of law school after reading Bork’s The Tempting of America.

  9. Anne Jaclard
    July 31, 2018 at 22:42

    I wonder if Kavanaugh will choose to deny the authorities of international corporate and business courts as well, such as the Investor-State Dispute Settlement in trade deals like NAFTA and the cancelled TPP and TTIP. He seems disrespectful of international law in general, and Republican judges like John Roberts have penned court opinions excoriating ISDS as a violation of the constitution. If so, his stance might not be entirely negative. Such laws are major problems for those who wish to confront the problems posed by climate change and human rights issues (such as BDS). However, such a stance could also prevent US companies from being prosecuted under any binding treaty against transnationals created by the UN. Does anyone else have thoughts on where this might lead?

    • Realist
      August 1, 2018 at 03:08

      Oh, I suspect that Trump simply forwarded the name in the envelope provided to him by his shadowy string pullers. I think the postmark on the parcel was Davos, Confoederatio Helvetica.

    • Sam F
      August 1, 2018 at 07:57

      The Supreme Corruption and politicians will decide on the basis of the effect upon private cash flows to their party and political campaigns, probably based upon lobbyist input. They can take or leave any international law just by inventing specific excuses, because they just ignore statements that the excuse contradicts their other decisions.

  10. CitizenOne
    July 31, 2018 at 22:25

    Of course Trump would pick a judge who sided with the president and had contempt for international law. Surprised that nobody so far has brought this to light. Judge Kavanaugh was spotlighted as an endearing family man who loves the Constitution and America and has a solid conservative voting record. There were suspicions that he might be the judge that would defer to and support presidential plenary powers in a time of war up to and including the authority to cancel and nullify his own impeachment in a time of war.

    What this means in reality is that the president might be positioning the Supreme Court to vote to nullify any investigation into the presidency if the Commander in Chief posses a critical role in the defense of the nation. It makes some sense on its face in that any legal trouble might hamper the ability of the USA to defend itself if international affairs were mired in domestic political disputes which hampered the Commanders ability to command our nations military in a time of national emergency.

    Oddly enough this was exactly the same reasoning which led republicans to decry Bill Clinton’s intervention in the Bosnian conflict as “wagging the dog” or Bill Clinton’s alleged attempt to escape impeachment by signing on to the NATO led military intervention against the Serbians and their proxy superpower supporter Russia to defend militarily the Muslim territory’s in Kosovo.

    Back then, republicans were on the side of the Russians and opposed to Clinton’s strong military response to the atrocities committed by Serbians against Muslims in Kosovo. The republican doves were urging peace and not war while staging Clinton (the Commander in Briefs) who had lost all “moral authority” to lead the war because of his impending impeachment and alleged guilt in the Kenneth Starr investigation of his various and widely diverging multiple alleged crimes. Eventually the republican House Managers were successful in Clinton’s impeachment over a dalliance with an Intern. The House Impeachment was never ratified by the Senate and Clinton finished his term scarred and vilified but not impeached.

    The difference in the position of the republicans on how to judge a president was revealed again to be along political lines when President Bush launched the War with Iraq after 9/11. This time republicans were arguing that the president had plenary powers to take control and command the military as Commander in Chief (not Commander in Briefs) despite whatever Congress might authorize or block according to the War Powers Act which granted Congress the sole authority to authorize war against foreign nations which came out of the Vietnam war. Republicans argued on behalf of Bush that as the sole plenary military commander he had wide power to do whatever he wanted. Republicans were often heard claiming that anyone who opposed the Commander in Chief were guilty of sedition and could be brought to justice under military tribunal law bypassing civilian laws protecting the rights of citizens of the country to exercise their free speech rights to oppose the war.

    The treatment of the Clinton presidency versus the Bush presidency was drawn on sharp and opposing positions based on the party affiliation of the Commander in Chief. If the Commander was a democrat he was wagging the dog and trying to avoid impeachment but if the president was republican he was protected by vast plenary powers which gave him blanket authority to do whatever he wanted.

    Fast forward to the current nominee of Judge Kavanaugh to the Supreme Court and it is no wonder that he is on the side which proposes that the (republican) president has vast powers to rule in a time of war as he sees fit and is immune to civilian prosecution.

    Such is the double standard which republicans have applied to the power of the presidency depending on the political affiliation of the Commander in Chief.

    It is a double standard and an example of flip flopping which the republicans have famously capitalized on in former election campaigns such as the moniker of “flip flopper” applied to John Kerry in his bid for presidency. The old saying goes that it takes one to know one and this can be perfectly used to apply to the double standard flip flopping of the republicans based on party affiliation of what a president can and cannot do.

    If the president is a democrat he is powerless and is merely attempting to escape justice if he engages in international diplomacy or military engagement but if he is a republican he has unlimited authority to do the same things.

    Sure this is a common denominator in the political fights in Washington but it reveals a lopsided partisan bias on the part of republicans to place the security of the nation and international stability squarely in the political arena of US politics.

    That is not something that the republicans should be proud of. The influence of the United States in foreign affairs should transcend domestic party politics in the best interest of the Nation but time and time again we have seen republicans align on party lines to either attempt to strip the powers of the president or grant the president unlimited powers based purely along political party affiliation.

    This behavior is unpatriotic. The foreign policies of America should surely address the security of the Nation as a whole and also should surely not be arbitrarily drawn up on political fronts at home.

    But this is just one example of how party politics has taken supremacy over national interests and foreign policy in order for one party (the republicans) to gain control.

    It is indeed strange how the republican party which has positioned itself as the last best defense of America routinely chooses to pick sides based on politics and self aggrandizement.

    • Alcuin
      August 2, 2018 at 09:00

      Pedantic correction to para 4: “Impeachment” is roughly equivalent to “indictment” and needs no ratification by the Senate. If the Dems win in November Trump will most likely be the third president in US history to be impeached, following Andrew Johnson and Bill Clinton, regardless of what the Senate does afterwards.

      • CitizenOne
        August 4, 2018 at 23:33

        I am corrected.bbI said that the Senate failed to “Ratify” the verdict of the House for impeachment of Clinton. More correctly I should have stated that a two thirds majority in the Senate failed to indict the presidential charges for impeachment by the House .

        The laws governing treaties also require that a two thirds majority must ratify treaties which is the same majority needed in the Senate for Impeachment. Impeachment by Congress in order to remove a sitting president requires approval by both houses of Congress the final vote by the Senate requiring a two thirds majority.

        Treaty ratification Under the US Constitution:

        “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… ”

        The laws of Impeachment of a sitting president also require a two thirds majority in the Senate after a simple majority vote in the House of Representatives to remove a president from power.

        Ratification or conviction by a two thirds majority applies to the Senate for treaties or for impeachment of a sitting president so it is merely semantics how the definition of the requirements for a super majority of the Senate decides via ratification as in treaties or a super majority as in Senate Impeachment. The numbers required are the same.

        You are correct in identifying that the Senate does not Ratify an Impeachment but the required votes in the Senate are the same.

        Finally the term “Impeached” does not rise to the level of removal from office unless both houses of Congress according to the rules vote with the required majorities. The use of ratify as a term does not change the math.

  11. F. G. Sanford
    July 31, 2018 at 22:00

    I said it before and I’ll say it again: I’m betting this guy’s appointment will be confirmed, and the Democrats will dutifully approve the nomination. Sure, they’ll hem and haw, just to make it look like they really agonized over the pros and cons and carefully considered all the arguments. In the end, they’ll offer up nebulous jargon to justify why the choice was reasonable and prudent. The erosion of The Supremacy Clause lessens the onus on a particular entity which has much to fear from international opprobrium. That entity has an extremely powerful lobby. By the way, a recent Robert Fisk article illustrates his discovery of American-made missile casings along with inventory, serial numbers and packaging. They were found in strongholds cleared out by the Syrian Arab Army. The missiles would have been shipped originally to some intermediary government, then transferred to hostile forces for the purpose of ‘regime change’ in Syria. Anybody want to hazard a guess which government was the intermediary? When President Trump recently indicated that “other governments” may have been involved in hacking American political entities, does anybody really think he was referring to Estonia? Personally, I kinda doubt it.

    • Realist
      August 1, 2018 at 02:58

      The blue dogs will vote him in and then be defeated in the November elections anyway. All will be well taken care of for their trouble in the congressional retirement plan, otherwise known as the lobby system.

  12. Piotr Berman
    July 31, 2018 at 21:38

    All judges work for pay-to-play party operatives (my expert knowledge is in ME, MA, DC, GA, FL, and CA), and regard their job as the subversion of the Constitution and laws for private gain of party. <- Sam F3

    In the case of private parties, I do not have an opinion. But on basic questions of executive power etc., I think that judges, like the rest of the Establishment, have some deep conviction.

    A conviction that is easy to observe is that the population needs some unifying myths, and nothing can replace the cult of Founding Fathers in the myth package.

    But if we look deeper, our entire Establishment thinks that these chaps, however nicely looking at oil painting, Mount Rushmore, bank notes etc. were a bunch of idiots, and their legacy has to be profoundly, although discretely, corrected.

    • Sam F
      August 1, 2018 at 07:47

      I suggest thinking about the “unifying myth” that leads you to suppose that the federal judiciary has any “deep conviction” other than the value of gold. As you include “the rest of the Establishment” are you not selling that myth as they are living it? I once believed that judicial corruption must be the exception, so I sympathize, but any experience will quickly show you otherwise.

      • Piotr Berman
        August 2, 2018 at 18:06

        I meant you do not need to bribe judges for them to pretend that they adhere to the Constitution when they do not. The pretense is needed to maintain unifying myths, the actual adherence would lead to life being “short, miserable and brutish”, we need a Leviathan (this is how I reconstruct their thinking). Concerning rampant abuses of the Executive, there is a liberal strategy — delays followed by toothless rulings, and a more emphatic approach or statists like Kavanaugh, the results seem to be the same.

  13. July 31, 2018 at 19:33

    The whole concept of the Supreme Court having life tenure has never made any sense to me. They are definitely not “supreme”, and I envision a funny musical based on the absurdity of such a bunch within the overall corrupt USG system. We got George W. Bush and Citizens United from them most recently. I was impressed with David Souter retiring, think he saw through the shallowness of that group.

  14. Sam F3
    July 31, 2018 at 19:14

    Unfortunately the US judicial branch has become utterly corrupted. All judges work for pay-to-play party operatives (my expert knowledge is in ME, MA, DC, GA, FL, and CA), and regard their job as the subversion of the Constitution and laws for private gain of party. The corruption flows downward from the Supreme Court; I haven’t seen any exceptions among 35-40 federal judges, so it is fair to say that nearly every one must be fired before we can have a working judiciary.

    All judges have a back channel of influence known to law firms. Nearly all disregard the law in nearly all decisions, seeking no more than excuses for prejudices. All judges are tribalists: Jewish, Italian, female, and Republican judges never judge against one of their kind. They all seek and respect only money, and do what the money says. Where there is no valuing or standard of truth or justice, there is no truth or justice.

    The public is fooled by their own dream of a judicial Santa Claus who will set things right if they are wronged. The few who read cases are fooled by judgments that simply lie about the facts, and assume that the judiciary would not be so audacious. Lawyers depend on the judiciary for survival, and many aim to be judges. The mass media depend on the judiciary for survival, as libel suits are easily thrown against critics. Those who know the truth and dare to speak are rare, and the public will never hear of them in mass media, nor listen to what it fears to believe.

    My experience is with civil rights cases. Here is an excellent article by Paul Roberts on the abject corruption of the criminal justice system:
    Here is an article on judicial corruption and the extensive measures that would be necessary to get rid of it:

    • Realist
      August 1, 2018 at 02:54

      The one justice who shamelessly proved all you say to be true through his words and actions was Scalia… whom Ginsberg claimed was her best friend on the court. If Scalia were still around to confront, I’m sure he would rejoin your accusations with a “whaddya going to do about it?” quip.

  15. mike k
    July 31, 2018 at 18:10

    The Supreme Court of Liars is just another farce of our so called democracy. Just another mechanism totally controlled by the rich, the better to enslave the rest of us. In a totally corrupt government, nothing is what it pretends to be. If you think our “justice system’ is fair and honest, you are just setting yourself up as victim. Try to help some of the unjustly imprisoned, as I have, and you will discover how our courts really function.

  16. Jeff Harrison
    July 31, 2018 at 17:03

    There is one thing in this piece that bothers me. It quotes the constitution’s dictum that a ratified treaty becomes the law of the land. Separately, I understand that the provisions of a treaty are unenforceable unless there is a federal regulation implementing the terms of the treaty. Can someone enlighten me?

    • Sam F
      July 31, 2018 at 17:37

      A treaty becomes part of the “supreme law of the land” alongside the Constitution.
      Most treaties have specific terms and require their adoption into law by statute.

      Courts refused to enforce civil rights until the post-Civil-War civil rights acts, on the claim that a statute was required, whereas statutes merely make principles sufficiently specific to enforce, as civil rights already were. So they might just as irrationally refuse to enforce treaty principles not adopted as law.

      The decisions seem to depend upon judicial corruption contradicting acts of Congress.
      Perhaps Ms. Cohn or another will clarify.

      July 31, 2018 at 20:00

      From Marjorie Cohn: Implementing legislation is needed for a plaintiff to bring a lawsuit in court. But parties to a treaty are still bound on the international plane and treaties are used to interpret domestic laws.

      • Jeff Harrison
        August 1, 2018 at 10:33

        So, like I said, treaties are unenforceable without implementing legislation as a lawsuit is required to obtain enforcement from a recalcitrant government. Saying that we would be bound on an international plane is meaningless if the regime in Washington chooses to ignore it as there are no mechanisms to sanction the US. Any opprobrium from any of the vassal states generally has less effect than water on a duck’s back. I would love to see an example of American law being interpreted in light of a treaty. Hell’s bells, we’re a signatory on a treaty that requires that foreign national prisoners be given access to their country’s Councillor services. That doesn’t seem to work for Mexicans in Texas jails.

  17. Realist
    July 31, 2018 at 16:06

    Either the Democrats are going to have to pull a “Mitch McConnell” and block the appointment of any supreme court justice for the next two and a half years or perhaps even six and a half years (let’s see how that affects their favorability ratings), or they will have to accept another conservative vote on the bench. The GOPers and Trump are not gonna deliver an Earl Warren, or even a David Souter, to them. Might be interesting to see how small Congress can shrink the court if both sides keep playing this game indefinitely.

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