It is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.
Scalia's View
The question is not what case or congressional action prevents federal courts from applying the law of nations as part of the general common law; it is what authorizes that peculiar exception from Erie’s fundamental holding that a general common law does not exist. . . .
American law—the law made by the people’s democratically elected representatives— does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, and automatically gives rise to a private action for money damages in federal court.
Customary International Law
What is customary international law?
Is there a generally agreed to codification?
What is the chief argument for executive power to override customary international law?
Who overrode customary international law in Ferrer- Mazorra v. Meese, 479 U.S. 889 (1986)?
Did the court indicate that any executive branch official could do this?
Can Congress ban the United States Supreme Court from considering customary international law as a precedent in US law cases?
The Use of International Law as a
Guide to Interpretation of the United States Constitution
‘‘The use of international law is even more compelling than most interpretive methods because it is not the subjective decision of a single judge, but a product of years of distillation of principles formed through international consensus."
What are the weaknesses of this argument?
What are the disadvantages of Scalia's position?
Chapter 8 - General War
Vietnam War
Introduction to the Vietnam War - read this for the history
What are other conflicts with roots in colonial empires?
What would winning have meant?
Vietnam is now communist - does that matter?
Why don't we worry about communists any more?
Key points
Once the dominos were safe, Vietnam was only a proxy for the US/Communist Block conflict
The same conflicts played out in the mideast
Johnson and Nixon lied about the conduct of the war
How did this change the relationship between the Congress and the President?
Vietnam was the first modern media war
Lying to the media became dangerous
How have we managed the media in the Iraq wars?
The Tokin Gulf Resolution
How is the Tokin Gulf incident like WMDs in the Iraq war?
Is the Tokin Gulf Resolution a declaration of war?
Is it anything at all, legally?
If not, what does that tell us about presidential power?
Why didn't it matter when Congress repealed the Tokin Gulf Amendment?
What did Congress keep doing?
Orlando v. Laird United States Court of Appeals, 443 F.2d 1039, cert. denied, 404 U.S. 869 (1971)
Who are plaintiffs?
What is their claim?
Why do they have standing when other citizens do not?
What is the ‘‘mutual participation’’ standard for prosecution of the war?
What is plaintiff's theory on why Congress was not free to reject the war?
Why is resolving this a political question?
Pentagon Papers
What were the Pentagon Papers?
What was their political significance?
They are discussed more fully in Chapter 37
Their publication and the attempts to stop it were a major national drama
Holtzman v. Schlesinger, 484 F.2d 1307 (1973)?
What did the district court order that was being appealed?
Sec. 108. Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia. and not a judicial question. . . ."
How does this show congressional support for the bombing at issue in this case? (Was it before 15 Aug?)
Chapter 9 - War Powers Resolution
The War Powers Resolution
Parse each provision of the War Powers Resolution - figure out what each part means and be prepared to explain it.
What is the purpose of the Resolution?
What is Congress claiming about its right to control presidential powers?
When can the president use troops?
What is the ambiguity in #3?
Consultation with Congress
What does Congress want consultation to mean?
What do presidents think it means?
Reporting
What triggers reporting?
Who does the president report to?
What must the report contain?
Is this a continuing duty to report?
What does Congress do with the report?
When Must the President Report?
What is the clock that the report starts ticking?
How long is it?
What is supposed to happen if Congress does not act before the clock runs out?
What tolls the clock, allowing the troops to stay?
The Joint Resolution
What does the resolution say Congress can do by concurrent resolution?
What does section 8, INTERPRETATION OF JOINT RESOLUTION, try to do to limit the president's actions?
