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 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."
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?)
