On the Docket to See Case Dealing with Scope of Presidential Power

On Wednesday, October 10th On the Docket will be taking Georgetown undergraduates down to see Medellin v. Texas. Details of the case are as follows:

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), I.C.J. No. 128 (judgment of Mar. 31, 2004), the International Court of Justice determined that 51 named Mexican nationals, including petitioner, were entitled to receive review and reconsideration of their convictions and sentences through the judicial process in the United States. On February 28, 2005, President George W. Bush determined that the United States would comply with its international obligation to give effect to the judgment by giving those 51 individuals review and reconsideration in the state courts. However, the Texas Court of Criminal Appeals held that the President’s determination exceeded his powers, and it refused to give effect to the Avena judgment or the President’s determination. This case presents the following questions:

1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States’ treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment?

2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?

We will meet at the GUTS bus stop in front of Leo's at 6am and be back on campus by 12 noon. Breakfast will be provided for those who come to the case. Sign up now by emailing onthedocket@georgetown.edu!

Some Upcoming Cases of Note

The media have been very talkative lately about a 1) death penalty case 2) voter ID and 3) several cases dealing with detainees in the upcoming term. The NY Times' Linda Greenhouse predicts that that this upcoming term will be marked by severe disagreement among the justices and lots of dissent.

Take a look at what Greenhouse has to say here.

Circuit Court Ruling Affirms FAIR Decision

A valiant effort by Yale Law School to challenge the Solomon Amendment once again fails in the federal courts. The 2nd Circuit of the Court of Appeals affirmed the jurisprudence laid out in the Rumsfeld v. FAIR decision handed down by the USSC in 2006. Circuit Judge Pooler wrote the opinion for the case which can be found here.

The court rejected the law school's argument saying that its academic freedom was violated by a government policy which would rescind federal funding of the law school if it did not give military recruiters the same access as other job recruiters.

Read more about the case here.

Government Collection of Traveler Data a Violation of the 4th Amendment?

An article published in the Washington Post today reveals that the Department of Homeland Security has been collecting more data on travelers than previously thought. Through the use of something called the Automated Targeting System, the data on travelers has been collected since the mid 1990s to "assess the security threat posed by all passengers entering the U.S."

However, recent dossiers obtained from the Department of Homeland Security's ATS suggest that the information gathered goes above and beyond what is required to check for a "security risk" as the government has data on "the travel habits of millions of Americans who fly, drive or take cruises abroad, retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried."

Apparently, those critical of the system say that information could be used to make correlations and create relationships that may not actually be valid. The Washington Post reports:

"Edward Hasbrouck, a civil liberties activist who was a travel agent for more than 15 years, said that his file contained coding that reflected his plan to fly with another individual. In fact, Hasbrouck wound up not flying with that person, but the record, which can be linked to the other passenger's name, remained in the system. "The Automated Targeting System," Hasbrouck alleged, "is the largest system of government dossiers of individual Americans' personal activities that the government has ever created."

He said that travel records are among the most potentially invasive of records because they can suggest links: They show who a traveler sat next to, where they stayed, when they left. "It's that lifetime log of everywhere you go that can be correlated with other people's movements that's most dangerous," he said. "If you sat next to someone once, that's a coincidence. If you sat next to them twice, that's a relationship.'"

If the ATS does ever reach a court dispute over whether or not it violates the Privacy Act of 1974, which prohibits, among other things "gathering of data related to Americans' exercise of their First Amendment rights, such as their choice of reading material or persons with whom to associate," the question could ultimately come down to whether these searches and seizures are reasonable under the 4th Amendment's prohibition of unreasonable searches and seizures.

New Jersey Supreme Court Punts Questions about Beginning of Life

On September 12th, New Jersey's high court unanimously ruled that a "doctor had 'no legal duty' to tell her that her six-to-eight-week-old embryo was “a complete, separate, unique and irreplaceable human being.'"

According to the NY Times article, the case has some bizarre beginnings as a malpractice suit. They report:

"The decision handed down today reversed a unanimous ruling by a three-judge appeals panel. The case began in 1998, when Rosa Acuna of Bound Brook, a mother of two, sued Sheldon C. Turkish, her gynecologist in Perth Amboy, over an incomplete abortion, and charged that he had not given her sufficient information before she allowed him to perform the abortion.

Mrs. Acuna, now 40, said in court proceedings that when she was in the early stages of pregnancy in 1996, she had asked Dr. Turkish “if it was the baby in there” and that Dr. Turkish had replied, “Don’t be stupid, it’s only blood.”

According to court papers, Dr. Turkish denied having made such a statement, adding that he probably told her that a “seven-week pregnancy is not a living human being,” but rather that it “is just tissue at this time.”

Mrs. Acuna had an abortion, and several weeks later went to the hospital after experiencing bleeding. She said that only after a nurse told her that “the doctor had left parts of the baby inside” did she realize it “was a baby and not just blood” inside her.

In court papers she said that she would not have had the abortion if she had received proper answers to her questions, and that she went on to suffer post-traumatic stress because of the procedure."

Apparently, Ms. Acuna wants the decision appealed to the USSC, so it is a possibility that we could see it go to the court for the spring term next year. The NJ high court did not ultimately rule on when life begins instead saying that, "There is not even remotely a consensus among New Jersey’s medical community or citizenry that the plaintiff’s assertions are medical facts, as opposed to firmly held moral, philosophical and religious beliefs, to support the establishment of the duty she would impose on all physicians."

Five of the court's seven justices weighed in on the case with the two others recusing themselves. No explanation was given for their recusal.