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Does anyone know why or how Justice O’Connor got a star on the walk of fame on 6th Street in Austin?

 

Thanks to M. for the picture.

During my trip to Hamilton, the capital of Bermuda, I took an excursion to the Bermuda Supreme Court during a murder trial. I arrived just as the Judge was about to dismiss the jury for the week on Friday afternoon, so I only was able to get a very brief glimpse of the Bermudian Justice system

There were a lot of similarities. There were 12 jurors. The prosecution (“The Crown” as it is called) sat on the left facing the bench, closest to the jury. The defense sat on the right facing the bench. Before dismissing the jury, the judge gave them the standard warnings–don’t do any independent research on the case (including social media), don’t visit the site of the crime (not too far from the Court), don’t talk about this with anyone else, base your decision only on the evidence in court, etc.

After the jury was dismissed, the attorneys had a conversation that could have happened in any court. The defense attorney said that he had some sort of hearing in Missouri (no clue why), and he told the Court that he may need to request a delay in the trial if it goes till the middle of the August. The Judge asked whether his need to go to Missouri violates his client’s right to a speedy trial. The prosecutor seemed to object to any delay for obvious reasons. The court took it under advisement, and said she didn’t expect the trial to go that long, but she didn’t seem inclined to grant a delay.

There were also a number of differences. First, the judge, the prosecutor, and defense counsel all wore these scraggly-looking powder wigs. And they didn’t even cover the entire head. It was almost like a yarmulka that just sat on top of the head. Here is the biography of the presiding Justice, Hon. Mrs. Justice Norma Wade-Miller (they referred to her as “your ladyship”). Also the clerk who sat in front of the judge also wore a robe.

Perhaps the most striking difference was that the defendants (two young men) sat separately in this box-type section. It was surrounded by wood siding about 4-foot high, and above that was another 4 feet of glass. The defendants looked like they were in a fish bowl. An armed guard sat next to each defendant. I couldn’t tell if they were wearing shackles in the box, but I suspect they were, because when they were led out of the court they were chained.

The Bermuda Supreme Court also serves as a court of first instance for “indictable” offenses such as murder. More minor offenses are resolved by the Magistrates.

By chance, there was also some sort of protest at the Sessions House (their Parliament). Recently the Bermuda Supreme Court decided that many people should be granted citizenship (I don’t really understand how this works under their law). Here is a summary from the newspaper.

He added he rejected applications nearly a year later – a move overturned by the Immigration Appeal Tribunal and upheld by Supreme Court this year.

He added: “In essence, the Supreme Court ruling means that the Minister responsible for Immigration, save for various circumstances as set out in the Act, must grant Bermudian status to a PRC holder if the holder was granted a PRC as a result of having been in Bermuda on or before July 31st 1989, submits an application for naturalisation to become a British Overseas Territories Citizen and an application for Bermudian status under Section 20B (2)(b) of the Act, and if he Minister supports the naturalisation application and the Governor approves it.

“This provision in the Act became active as a result of PRC legislation being passed in 2001. When the matter was brought to the attention of the Ministry in October 2012 under the previous government, nothing was done to interfere with the relevant section of the Act.”

Mr Fahy said that 578 PRC’s are of British descent, 545 PRC’s are of Portuguese descent, 157 or so are of Jamaican descent and the remainder hail originally from Canada, America, Philippines, Barbados, Ireland and many other countries.

Anyway, this decision led to a protest. The Bermudians are very protective over granting citizenship, and basically only grant it by birth, or if you marry a Bermudian and live there for 10 years. This decision seems to be an outlier.

Also, due to the lack of land, property ownership is effectively impossible. (It reminds me of the oligopoly at issue in Hawaii Housing Authority v. Midkiff). No one can buy land. You sign a 99-year lease with the government. Foreigners can’t lease land, unless they promise to only live their 6 months out of the year, and only use it as a summer home. Michael Bloomebr owns a palace there. As does Ross Perot. I understand he blew up some coral reef so he could his speed boat. Don’t mess with Texas.

 

Hello everyone. Welcome to Property I. You can find the syllabus here.

Here is your first assignment.

Class 1 – 8/18/14

From Nature to Commons

• Johnson v. M’Inotsh, 3-10
• Notes and Questions, 10-18
• Toward a Theory of Property Rights, 40-46

 

As I noted earlier, the House voted to authorize a suit against the Obama Administration for violations of the separation of powers.

In the WSJ, David Rivkin and Elizabeth Price Foley, whom the Journal dubbed the “architects” of this suit, state “The Case for Suing the President.” This editorial focuses on the merits, rather than on standing. Essentially, they argue that if a law doesn’t work, it is for Congress to fix it, not the President. Otherwise, the status quo remains:

Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn’t mean Congress is “broken.” A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president’s bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.

The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.

I make similar points concerning the suspension of the law in Congressional Intransigence and Executive Power.

Todd Gaziano, who recently joined Pacific Legal Foundation to head their Washington D.C. Center, has a piece in National Review dispelling ten myths about the House’s suit (alas no cat gifs). His first two points speak to the standing issue:

Myth 1: The political branches can never sue each other. The federal courts have enforced various subpoenas by a house of Congress against the executive branch, especially when it is clear that the suit is authorized by the entire branch. The famous ruling against President Nixon for the production of his Oval Office tapes was initiated by a grand jury, but the court stated that Congress might also compel a president to produce records in certain circumstances, even if the president has invoked executive privilege. The courts should not get involved in the substance of a policy dispute, but “saying what the law is” sometimes includes enforcing the separation of powers by drawing lines between the branches and declaring that, yes, the president does have the authority to do X or he does not. The interesting question is what kinds of cases the courts will and will not hear, not whether they will hear any at all.

Myth 2:The Supreme Court held in Raines v. Byrd (1997) that Congress can’t challenge the execution of a law. Although the Court held that several members of Congress did not have standing to contest the constitutionality of the line-item-veto law at issue, the Court explained that three factors influenced its decision in that case, none of which would apply to the contemplated House suit: The suit by a handful of members (“sore losers”) was disfavored; the challenged provision had not yet been exercised, which made the suit hypothetical; and there likely would be private citizens who could (and did) bring a similar challenge when the veto was invoked. It would have been so much simpler for the Court to write that a legislature can never sue to enforce its powers if that were so, but the Court has never said that. Indeed, the High Court held in Coleman v. Miller (1939) that a majority of state senators may challenge an action by the state’s lieutenant governor, who they alleged invalidated their votes, in federal court.

Rounding up the coverage, the WSJ has a house editorial, titled “So sue him.” The piece distinguishes the Boehner suit from the recently-dismissed challenge by Senator Ron Johnson (which I blogged about here and here)–the former is authorized by the entire House.

The courts have generally held that Members of Congress as individuals lack the “standing,” or concrete injuries, to sue. As recently as this month a federal district court in Wisconsin rejected a case brought by Senator Ron Johnson over an ObamaCare provision. Standing doctrine that limits the judiciary to “cases and controversies” is one of the few meaningful restraints on its power.

Yet even as he tossed Senator Johnson’s suit for that reason, Judge William Griesbach wrote in his careful opinion that the executive branch had rewritten the ObamaCare provision “so as to render it essentially meaningless,” which, if proven, “would be a violation of Article I.” He cited Madison’s admonition in Federalist No. 47 that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”

The difference between Mr. Johnson’s suit and Mr. Boehner’s is that the House is making an institutional challenge to executive abuse. The courts may take such a challenge seriously, in particular because the suit claims that Mr. Obama’s abuses are usurping the institutional power of Congress under the Constitution. The obligation of elected officials on both ends of Pennsylvania Avenue is to leave their offices no weaker than they found them, and Mr. Boehner realizes that Congress’s core power to write the law is being hijacked by Mr. Obama.

The Supreme Court has already responded when this President’s law-breaking have been challenged by private parties. This past term the Supreme Court rebuked the White House for its unilateral overreach in appointment powers (Noel Canning), unlawfully rewriting the Clean Air Act (Utility Air Regulatory Group) and infringing on religious freedom (Hobby Lobby).

Stay tuned.

 

Here is the roll call. The final vote was 227 YEAS, 196 NAYS, and 9 NVs. All Democrats voted no. One Republican, but one, voted yes. The specific tallies are not yet showing up on Thomas for H.Res. 694.