Clarence Thomas on the Indian Commerce Clause

Tip off to Turtle Talk for bringing this to my attention.

Salvatori Professor of American Constitutionalism, Ralph A. Rossum, has authored a fascinating piece about Justice Clarence Thomas and his originalist view of the Indian Commerce Clause.  I highly recommend it.

First, some background.  The Indian Commerce Clause (covered here) is a subset of the full Commerce Clause that resides at Article I, section 8, clause 3 of the US Constitution:

To regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes;

More well known is the Commerce Clause’s use in regulating economic activity among the states, the Indian Commerce Clause has been interpreted as a means through which Congress has the plenary power to legislate exclusively in Indian affairs, a power which no other branch of government (or inferior legislatures, unless it’s a PL-280 jurisdiction) may possess.

Next, let’s turn to Justice Thomas.  Quoting from Rossum’s article directly, here’s this:

Concurring in the judgment [of United States v. Lara], [Justice] Thomas declared, ‘I cannot agree that the Indian Commerce Clause ‘provides Congress with plenary power to legislate in the field of Indian Affairs.’  He found [the Supreme Court's decision], based on decades of relevant precedent, ‘implausible,’ ‘troubling,’ and ‘very strained,” and, wishing to restore the original understanding of the Indian Commerce Clause, he indicated that he ‘would be willing to revisit the question.’

Direct opposite of what I just said, right?  Rossum moves on to say that Thomas’ originalist view is incorrect and presents evidence of the early documents surrounding the Indian Commerce Clause, concluding that the true originalist view is exactly what the decades of precedent said it was.

Beginning with the Articles of Confederation and working his way through the Northwest Ordinance, the Federalist Papers (specifically, #42), and early legislative acts by the First Congress, Professor Rossum shows that when Congress sought to legislate with Indians, it did so “predicated on the assumption that the federal government has plenary power over Indian tribes.”  Rossum, at p. 815.

Rossum next brings together Justice Thomas’ narrow view of interpreting law towards Native Americans with Thomas’ refusal to apply judicial canons of statutory construction that, by default, should always favor the Indians, given their “dependent domestic nation” status.  Thomas routinely ignores these canons, but Rossum doesn’t exactly explain why, except to say that Thomas is focused more on maintaining the federalist structure of our government rather than acknowledge the significance of Native American identity within that federalist structure.  See Rossum, at p. 821.  This leads Thomas to view statutes and treaties narrowly, which explains his disastrous Carcieri v. Salazar opinion wherein he construed the text of the Indian Reorganization Act so narrowly that he effectively gutted it of its power.

Rossum repeatedly tells us that Thomas has a narrow view of interpreting Indian statutes and treaty, but does not call Thomas narrow-minded.  In fact, in the article’s conclusion, Rossum tries to save Thomas from scorn by basically stating that he slowly learns from his mistakes as he “has always and faithfully pursued an originalist understanding [of the Indian Commerce Clause].”  Rossum at p. 826.  But Thomas is very much a slow learner.

I don’t see how an educated and intelligent man of Thomas’ caliber cannot see how the case law, beginning with the Marshall trilogy, and the volumes of scholarship that has been produced on it, has done nothing but cast Indians in an inferior, subordinate, and infantilized role that has stymied their development as full, respected citizens of the United States.  Furthermore, the racist overtones that linger on today in Indian Law jurisprudence cannot but help to remind people like Clarence Thomas — an African American — that we anxiously await our Brown v. Board of Education.  Indian law is still vexed by tiny little splinters of Indian law’s own versions of Plessy v. Ferguson and Dred Scot v. Sanford.  Perhaps if Thomas is still learning to adopt a true originalist stance then maybe he will one day accept the canons of judicial construction that are supposed to favor Indian tribes.  I won’t be holding my breath though.

In the meantime, Rossum’s article is highly thought-provoking and I encourage you to read it.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2085080

 

Presidential War Making

Updated 4/21/2011: See below

With the Libyan thing going full force, I’ve stopped and checked some of our country’s laws on Presidential war making.  It’s never a bad thing to read the Constitution once in a while.  Specifically, read Article II, section 2.

The functions of the Executive Branch are defined in Article II of the Constitution.  With regards to his war powers, the President “shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual Service of the United States . . . .”

While Congress has the power to declare formal war, the President, acting as Commander in Chief of the armed forces, has the power to act militarily in actual hostilities against the United States.  As Eric Posner (re Volokh Conspiracy) points out:

Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war.

Congress and the Judiciary are reluctant to impose any form of guideline or rules against the President’s war making powers because it will “embroil themselves in the resolution of ‘political’ disputes between the other branches of government . . . .”  Laurence H. Tribe, American Constitutional Law 231 (2nd Ed. 1988).

Still, Congress retains some control over the President’s powers.  In Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579 (1952), Justice Jackson’s concurrence illustrated three factors in determining whether a President’s action is constitutional:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

One example of congressional grant or denial is the War Powers Resolution Act of 1973, wherein Congress gave general restrictions on the President’s war making powers, limiting unilateral action by a President to 60 days, after which Congress could either authorize or limit the use of the armed forces.  Regardless of whether Congress was consulted prior to the use of force, the President must make a report to Congress within 48 hours of the action, detailing the who, when, what, where, why, and “how long” the use of force will continue.

That being said, other Supreme Court decisions define the President’s war-making powers broadly.  In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the Court proclaimed that the President, “not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries . . . .”  Id. at 320.  Furthermore:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.  Id. at 319–20.

President Obama was aware of all these precedents as well.  He went to law school, and even served as a constitutional law professor at the University of Chicago Law School.  When he ran for office he knew that his power to unilaterally make war was limited to only those circumstances where an imminent threat was posed to the United States.  (See this blog post.)

Obama, like other American presidents before him, forgot about his limited war making powers when he went into Libya.  There’s arguments to be made on both sides to the legality of actions.  For starters, Congress has yet to give their blessing over the Libya action, but because they’ve neither condemned nor condoned the action, Obama’s action would fall under the second “twilight zone” prong of the Youngstown test.  Bush had Congressional blessing to invade Afghanistan after 9/11 when they passed the Authorization for the Use of Military Force, but it wasn’t good enough to justify his deprivation of habeas corpus rights to Guantanamo detainees.  No such authorization or legislation exists for Libya in much the same way it probably didn’t exist for Clinton when he went into Yugoslavia.  If Congress passes legislation that condemns the action, then the third prong of the Youngstown test applies.  Presumably, any continuation of the Libyan (or any) conflict would be grounds for impeachment.

On the other hand, as an obliging party under the United Nations and the North Atlantic Treaty Organization (which is what this action is being cloaked under), then President Obama can justify his unilateral action under his duty to enforce the laws of the United States.  Foreign treaties, once ratified by the Senate, become the laws of the United States.

Obviously, there is very little formal judicial or congressional regulation of executive duties.  The three branches of our government like to crash each other’s party every once in a while, but there are no dramatic coups because each branch knows that if they start something bad, the other two can gang up on it.  Checks and balances in full effect.  While Congress has some reign over the President’s war making authority, wars, usually, “simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.”  See Posner, supra.

And the research continues…

——–

4/21/2011 UPDATE

One blog article called the Libyan intervention illegal, relying off historical precedents that I believe are largely irrelevant.  However, adding some historical notes to this discussion couldn’t hurt.  While the Founders explicitly called for Congressional authority to declare a war, the actual execution falls with the Commander and Chief.  However, Congress is not entirely powerless – they can just as easily declare a war illegal if the political will exists to do so.  At a bare minimum, the War Powers Resolution ensures that the President keep Congress in the loop and limits his actions to a certain time limit, which the author acknowledges as well.  If Congress doesn’t like it, then they can declare the war illegal, and then the President risks impeachment for defying it.  Congressional consent is not absent from the Libyan intervention, but it is not necessary to deploy troops.  Cooperation between the Executive and Legislative branches of government in times of war made sense in a time when geographical limitations of the United States allowed the branches time to sit and formulate a strategy.  In the modern world, those luxuries do not exist anymore.  In the meantime, the President is acting according to U.S. law based in part on his authority as Commander in Chief as well as his duty to enforce his treaty obligations to NATO and the UN (specifically UN Resolution 1973).

The author doesn’t agree with the Libyan intervention.  Neither do I.  I do not think it is a high enough priority for our nation to involve itself, even in a narrowly defined role as this is, in Libya.  NATO didn’t need our help on this one, that’s for sure, it’s not like they don’t have jets of their own.  The U.S. fought for the privilege of striking the first blow to show the President’s desire to “stabilize” the Middle East and promote good will despite my personal feelings to the contrary.

For more background and legal/political justification, see the Office of Legal Counsel’s formal memorandum on the subject: http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf

 

Would you take John Yoo’s Con Law Class? (I Would)

Fresh from the midterm fire!  Not sure how well I did – especially on my evidence midterm.  God, that was an evil exam.  Not even my dreaded con law midterm, which should have scared the living daylights out of me, did not make me crumble into a fine hot mess as much as evidence did.

Oh, yeah, Volokh put something up about John Yoo co-teaching a class (“Constitutional Design and the California Constitution”) at his current university (Berkeley, if you can believe it).  Of course, Berkeley students are protesting it.  Why wouldn’t they?

To hear any legal insight from this man would be an awesome opportunity, and as the blog post notes, 23 out of 24 seats have already been filled.  While I don’t agree with the conclusions Yoo reached in his infamous memo (domestic use of military for anti-terrorism purposes OK – no 4th amendment warrants or probable cause needed!), I would still take a few hours out of my day to hear the man elucidate on Constitutional Law.

 

California Supreme Court agrees to hear Gay Marriage/Prop 8 Cases

From Yahoo!:

[The legal challenges] claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.

Oral arguments could be scheduled as early as March…

The [anti-Prop 8] lawsuits argue that voters improperly abrogated the judiciary’s authority by stripping same-sex couples of the right to wed after the high court earlier ruled it was discriminatory to prohibit gay men and lesbians from marrying.

[Prop 8] represents such a sweeping change that it constitutes a constitutional revision as opposed to an amendment, the documents say. The distinction would have required the ban’s backers to obtain approval from two-thirds of both houses of the California Legislature before submitting it to voters.

We all knew this was coming.  Will the U.S. Supreme Court eventually take on this issue?