Tag Archive | "U.S."

A Look Back: From the Death of Justice Antonin Scalia to the Nomination of Judge Neil Gorsuch

Gorsuch

President Trump shaking hands with Judge Neil Gorsuch, his nominee to replace Justice Antonin Scalia on the Supreme Court, on January 31, 2017.

While The View From Above generally posts on issues and topics concerning international law, I believe it prudent to address President Trump’s Supreme Court nominee—which will surely have a future impact on international law and the role the United States plays in it. This post briefly analyzes the following in response to the passing of Justice Antonin Scalia: Presidential Appointment Powers; then-President Obama’s nominee, Chief Judge Merrick Garland; and President Trump’s nominee, Judge Neil Gorsuch.

An Originalist Perspective on the Presidential Appointment Powers

For better or worse, in the context of constitutional interpretation, Republicans are often affiliated with the theory of Originalism. Justice Scalia, perhaps the most famous Originalist to date, defined originalism in this way:

“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

Article II, Section II, Clause II of the United States Constitution [1], known as the Appointments Clause, empowers the President of the United States to nominate certain public officals with the “advice and consent” of the Senate. This clause of the Constitution gives the President the power to nominate judges, but it also gives the Senate the affirmative power to provide “advice and consent” and places no limits on how the Senate discharges this power. Nowhere in the Constitution does it state that the Senate must hold a hearing for, let alone consider, a Supreme Court nominee. Keeping this perspective in mind, the Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee. As such, when the Constitution is interpreted from an Originalist perspective, the argument that the Senate has a “Constitutional Duty” to consider a Supreme Court nominee is likely erroneous.

The unusual circumstances resulting from the untimely death of Justice Scalia (where the President nominates an individual to the Supreme Court in an election year and where the Senate is controlled by a party other than that of the President) has occurred twice before in our nation’s history. In each instance, regardless of which party controlled the White House or the Senate, the Senate has held a hearing for the Supreme Court nominee. In 1895, Democratic President Grover Cleveland nominated Rufus Wheeler Peckham to the bench before a Republican-controlled Senate. The Senate held a hearing for Peckham and confirmed his nomination. More recently, in February 1988, a Democratic-controlled Senate confirmed Republican President Ronald Reagan’s nominee for the Supreme Court, Anthony Kennedy. [2] In fact, every Supreme Court nominee since 1875 has received a hearing before the Senate— well, every nominee except one.

As such, I believe that the Senate should promptly consider and vote on every presidential judicial nominee, not necessarily because the Senate has a constitutional obligation to do so, but, rather, because a historical basis exists upon which this claim may rest.

(Then-) President Obama’s Nominee: Chief Judge Merrick Garland

On March 16, 2016, then-President Barrack Obama nominated Chief Judge Merrick Garland, of the United States Court of Appeals for the District of Columbia Circuit, for Justice Scalia’s vacated Supreme Court seat. In an unprecedented act of childish discourtesy, the Republican-controlled Senate refused to hold a hearing for, or even consider, President Obama’s nomination of Chief Judge Garland.

As explained above, the Senate might not be obligated to hold a hearing for a Supreme Court nominee, let alone explain its reasons for not doing so. Someone should have told this to Republican Majority Leader Mitch McConnell. Senator McConnell stated that the reason for the Senate not holding a hearing was because the American people should have a voice in the filling of Justice Scalia’s vacancy. This argument from silence should not be ignored, and is particularly unpersuasive given the general affiliation between Republicans and Originalism, as outlined above.

President Trump’s Nominee: Judge Neil Gorsuch

On January 31, 2017, President Trump nominated federal appeals court Judge Neil Gorsuch [3] to fill the Supreme Court seat that has sat vacant since the passing of Justice Scalia. Judge Gorsuch is certainly a qualified nominee. He earned his Juris Doctor degree from Harvard Law School (where he was a classmate of former-President Obama) and his Doctor of Philosophy degree in Legal Philosophy from University College, Oxford. Additionally, Judge Gorsuch was a law clerk for Justice Kennedy. [4]

While it is likely that the Senate will hold a hearing for Judge Gorsuch, it will be interesting to see whether Democrats attempt to block his confirmation because of the events (or lack thereof) surrounding then-President Obama’s nomination of Chief Judge Garland. While some Democrats want to block Judge Gorsuch’s confirmation because of his willingness to endlessly extend religious freedoms [5] and his desire to reduce the power of regulatory agencies [6], many Democrats want to block the confirmation of Judge Gorsuch based on principle. However, I question whether that would be a wise course of action. Given President Trump’s unpredictability, Democrats might want to allow the confirmation of Judge Gorsuch. No one knows who President Trump’s next nominee might be.

While Judge Gorsuch has been very conservative in his past rulings, he does so by means of a consistent interpretation of the Constitution, (generally) without including his own personal beliefs—the polar opposite of Justice Alito. As such, it will be interesting to see whether, if given the opportunity, Judge Gorsuch aligns more with Justices Alito and Thomas, or Chief Justice Roberts. Additionally, while the Court is currently in a 4-4 (Republican-Democrat or Conservative-Liberal) split, Judge Gorsuch is set to take the place of Justice Scalia, a reliable conservative vote of the Court. With the recent talk of Justice Kennedy’s (the Court’s recent swing vote) potential stepping-down and Justice Ginsburg’s (a reliable liberal vote) advanced age, Democrats might want to hold their revenge for another day.

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[1] 1 “He [The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” U.S. Const. art. II, § 2, cl. 2 (emphasis added).

[2] Anthony Kennedy was nominated by then-President Reagan in November 1987. Banen, Steve (February 15, 2016). “Justice Kennedy’s confirmation debunks key GOP talking point“. MSNBC. Retrieved February 3, 2017.

[3] Judge Gorsuch has been a federal appellate judge on the United States Court of Appeals for the Tenth Circuit since August 2006.

[4] It will be interesting to see whether, because of their past relationship, Judge Gorsuch would push Justice Kennedy towards voting more conservatively than he has in the recent years.

[5] See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).

[6] See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).

Joseph Apisdorf is currently a second-year law student at University of Denver Sturm College of Law and managing editor of the Denver Journal of International Law and Policy. He is also a member of the Federalist Society.

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Julia Preston reporting on the immigration crisis at the U.S. border with Mexico.

Critical Analysis: Mexican and Central American Children Seeking Refuge in U.S.

November 1, 2014


The United States has caught more than 68,000 children crossing the United States border—primarily via the Rio Grande Valley into Texas—in the past year, doubling last year’s number.
  The majority of children are coming from Honduras, Guatemala, and El Salvador.  In fact, less than a quarter of the children caught are from Mexico.  The increase of children from these Central American countries began in 2012.  Violence, family reunification, and poverty are the main reason for this surge.  For those children from Honduras, there is an especially strong correlation between the increase in children caught at the border with an increase in homicides.

Due to the William Wilberforce Trafficking Victims Protection Act of 2008 (“TVPRA”), children from Central America have a longer before their deportation hearing than those children from contiguous countries (i.e. Canada and Mexico).  Unlike children from Mexico, a Border Patrol officer does not have the authority to make an on the spot determination as to whether a Central American child can stay in the country.

Julia Preston reporting on the immigration crisis at the U.S. border with Mexico.

Julia Preston has been reporting on the immigration crisis at the United States’ border with Mexico where Central American migrants are crossing. Photo and Caption Credit: Todd Heisler/The New York Times, http://www.nytimes.com/times-insider/2014/08/01/witnessing-the-border-crisis/?_r=1

The unequal treatment of children from Mexico versus children from Central America has draw criticism from both sides of the political isle leading to the President to take a strong stance on combatting this influx. In July, the President Obama White House urged an increase in funds—to the tune of just over $2 billion—to strengthen border security, expedite immigration case resolution, and deal directly with the humanitarian issues occurring in the countries of origin.  As with just about every policy and budgetary recommendation this White House has made, this recommendation was met with hostility both on the part of liberals and conservatives.

Liberals, on one hand, believe that the White House’s proposal upsets due process leaving thousands of children vulnerable.  Conservatives, on the other hand, believe this planned action is too little too late.  Regardless of your political stance on the issue, the larger underlying challenge is the United States’ role in this crisis and the potential responsibility it owes to mitigating its effect.

Honduras’s President Juan Orlando Hernandez has been quite vocal as to the United States’ hand in the immigration crisis.  The demand for drugs stemming from the United States has lead to an increase in violence and a decrease in roads for opportunity.  The illicit demand for drugs in the United States, no matter how frowned upon by the government and many citizens, has, in the opinion of many, has created a duty to address the humanitarian impacts.

The United States has the unique challenge of striking a balance between providing appropriate due process to those children who have made the journey to the United States, working with the immigrant’s countries of origin to address the underlying humanitarian issues, and corresponding the rate of deportation with the progress made in addressing humanitarian issues.  Perhaps easier said than done.

Alicia Guber is a 3L at the University of Denver Sturm College of Law and the Editor in Chief of the Denver Journal of International Law and Policy.

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Critical Analysis: The Lime Crisis of 2014

The other day, I walked into a bar and ordered a gin and tonic. Instead of the customary lime wedge or wheel, my gin and tonic came equipped with a slice of orange. In response to my confused look, the server mumbled something about Mexican cartels. This piqued my interest and led me to discover that Mexican cartels, while a key ingredient, are not solely to blame for the current lime shortage. Flooding, disease, and a domestic lime shortage are also contributing to low lime supply and elevated prices.

Conflict in Mexico is contributing to the shortages of limes and the increase in prices. Image Source: Huffington Post

Conflict in Mexico is contributing to the shortages of limes and the increase in prices. Image Source: Huffington Post

Lime prices in Denver are currently set to a troubling high of $.50 each at Safeway, and $.89 each at King Soopers. Large-scale orders are faring even worse, with 40-pound cases going for a whopping $100, compared to just $15 last year. The graph to the right is a U.S. Department of Agriculture graph, republished by the Huffington Post, which demonstrates the price spike.

This price elevation is mainly due to the age-old relationship between supply and demand. Supply is down because of a disease, huang long bing, also called “Yellow Dragon,” that has hit lime trees in the Yucatan and is spreading to other regions, such as the high export state of Veracruz. Unusually harsh rains in November and December also diminished lime yields because of damage inflicted to lime blossoms. Demand, however, has remained stable and is even increasing, particularly with the Americanized Cinco de Mayo holiday just around the corner.

The panic, however strong in Denver, seems all the more real in New York City, where some people are growing their own in order to avoid the shortage and even profit from it. Things are getting even scarier in the Mexican state of Michoacán, where the conflict is coming to a head. The violent Knights Templar Cartel has been threatening and attacking local farmers, taking their limes and their lands hostage in order to take advantage of elevated lime prices.

Image Source: Latin Post/Getty Images/Joe Raedle

Forty pound cases of limes are selling for $100 each. Image Source: Latin Post/Getty Images/Joe Raedle

An interesting twist to this story is that a handful of farmers and laborers in Michoacán have taken up arms to protect their families and their livelihoods, forcing the Knights Templar to retreat out of the area. Some speculate that this could lead to revolution on a larger scale, particularly as people who had migrated to the United States return home to combat the cartel. Hopefully, this conflict will demonstrate to Americans that even the seemingly inconsequential decision of garnishing their beverage of choice with a lime wedge can lead to striking consequences abroad.

 

Katie McAuley is a 2L, a Staff Editor for the Denver Journal of International Law and Policy and the incoming Candidacy Editor.

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Critical Analysis: The 20-Year Anniversary of NAFTA

How did you ring in the New Year?  Did you raise a toast to the 20th anniversary of North American Free Trade Agreement?  Probably not, but January 1, 2014, marked the 20th year of NAFTA’s existence.  NAFTA is one of the largest trading blocs in the world and thus still remains a relevant point of discussion when evaluating United States (U.S.) trade policy.

In many ways NAFTA did just what a free-trade agreement is primarily aimed at accomplishing: increase trade.  Today, trade between Mexico, the U.S., and Canada has increased by 3.5 times the levels seen in 1994.  In 2010, the U.S. had $918 billion in trade with Canada and Mexico.  Mexico has become a major automaker.  It now produces 3 million vehicles per year, an increase of 50% since 1994.  Finally, the U.S.’s and Mexico’s investment in Canada has tripled since 1994.

In terms of trade liberalization, NAFTA is a success.  Yet, NAFTA still faces criticisms for perpetuating economic and social barriers and inequalities.  Some of the identified underlying economic and social goals of the signing parties to NAFTA are as follows: promote equitable wages, job growth, align environmental standards, and increase investment.

As NAFTA turns twenty, the agreement has accomplished what it was designed to do - increase trade. Image Source: The Economist/Dave Simonds

As NAFTA turns twenty, the agreement has accomplished what it was designed to do – increase trade. Image Source: The Economist/Dave Simonds

Although there has been an increase in automotive manufacturing in Mexico, the jobs in the industry are notoriously low paying (about 15% of wages paid in the U.S.).  The wage gap between Mexico and the U.S. and Canada exists in other industries as well.  However, Mexico has failed to strengthen its labor unions even though the competition (Latin American and Asian countries) has, keeping Mexican wages low and failing to reach the goal of wage equality.

Economists still debate whether NAFTA has led to net job growth or net job loss.  On one hand, more jobs have been created in Mexico and Canada in the manufacturing sector and more export related jobs have been created in the U.S. On the other hand, manufacturing jobs in the U.S. have been outsourced to countries, such as Mexico, where the wages are lower. In the manufacturing sector, it seems as though NAFTA members must first accomplish the goals of equitable wages before job growth is a possibility.

Upon the ratification of NAFTA, NAFTA members negotiated a parallel agreement focusing on environmental concerns: the North American Agreement on Environmental Cooperation (NAACE).  The NAACE aims to improve member nations’ understanding of the effects trade has on the environment and to align member nations’ environmental policies.  Although the NAACE has set forth an environmental agenda for NAFTA members, measuring its success has been difficult.  The body has not yet determined what data would produce high-quality environmental linkages to trade.  The connections the NAACE has made show that trade liberalization depletes specific natural resources and leads to increased air and water pollution.  The main reason for such impacts is that NAFTA member nations have failed to integrate trade and environmental policies that combat such negative impacts.

NAFTA has increased investments in all three signatories.  The binding arbitration panels for foreign investors allows “investors to bypass the courts with complaints that government regulation unfairly affects their businesses” and, therefore, are quite favorable to investors.  Those complaints brought before the panel deal with resource management or environmental rules.  In total, Mexico and Canada have paid about $350 million in damages to foreign investors.  What about the U.S. you ask? Well, the U.S. hasn’t paid a penny.  These panels overwhelmingly rule in favor of U.S. investors, exasperating yet another inequality where the U.S. ends up on top.

These failures cannot be overlooked, but is the correlation to NAFTA really as strong as critics seem to think?  NAFTA has done exactly what free trade agreements are supposed to do: increase and liberalize trade.  In order to accomplish the underlying goals, governments need to make broader policy changes. First and foremost, member nations need to align their policies in the areas that effect trade, for example, environmental and worker protection.  Second, members need to invest in themselves to get up to par with these policies.  Third, members need to let go of protectionist measures and let comparative advantage do its work. The U.S. continues to protect markets (namely agriculture) in which it does not have the comparative advantage, disallowing counties (namely Mexico) from holding a larger stake in those markets.

Using free trade agreements as motivation to make larger policy changes might work, but free trade agreements themselves will not fix broken policies.

Alicia Guber is a 2L and the Alumni Editor on the Denver Journal of International Law and Policy.

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Critical Analysis: China’s Air Defense Identification Zone

Senkaku_Islands_Air_embed

Ownership of the disputed islands is crucial for the rights to use the oil, minerals, and fish in the surrounding waters. Image Source: Wikimedia

On November 23, 2013, China declared an Air Defense Identification Zone (ADIZ), which stated that “aircraft in the area must report their flight plans to China, maintain two-way radio and clearly mark their nationalities on the aircraft.”  China’s declaration has drawn harsh criticism from Japan and the United States.

While ADIZs are not a new concept, China’s ADIZ has created tension because the zone includes a chain of islands that are the center of a long dispute between China and Japan.  ADIZs are declared by many nations, allowing the territory to potentially stop unfriendly aircraft from entering its airspace.  James Hardy, the Asia-Pacific Editor of IHS Jane’s Defence Weekly, stated that an ADIZ is “unilaterally imposed, so it doesn’t really have a legal basis and isn’t based on negotiations with neighbors.”  The ADIZ includes the Daioyu/Senkaku islands, which both Japan and China claim as part of their territory.

Secretary of State John Kerry released a press statement on November 23, noting its deep concern over China’s ADIZ and warning that the move will increase tensions and a risk of an accident.  The Secretary stated that the United States does not “apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace,” and urged China not to take action against aircraft that do not comply.  China’s state-run news agency said that the U.S. and Japan are “pursuing double standards,” condemning the countries for voicing concerns over China setting up an ADIZ while both countries have had an ADIZ in place for years.  The state-run news agency said, “Japan set up such a zone in the 1960’s and it even one-sidedly allowed the zone to cover China’s Diaoyu Islands.”

The disputed islands, called Senkaku Islands by Japan and Diaoyu Islands by China, are claimed by both Japan and China.  China claims that Chinese fisherman began using the islands in the 1400’s, and has had a right of ownership ever since.  However, Japan recognized the islands as part of its territory in 1895, after conducting a survey in which it “saw no trace of Chinese control of the islands.”    After Japan’s surrender at the end of World War II, the islands were “administered by the U.S. occupation force.” Once the U.S. withdrew in 1972, the U.S. returned the islands back to Japan.

The islands have remained in dispute, but tensions have increased over the past year.  In April 2013, a Japanese nationalist group sent several boats into the disputed waters, a mission aimed at “publicizing Japan’s territorial claim to the area.”   China responded by sending five more ships to the already three ships stationed in the waters to monitor Japan’s activity.  When Japan’s coast guard ordered the Chinese ships to leave, the ships refused, claiming they were “patrolling Chinese territory.” Eventually the ships set out by the Japanese nationalist group left the area without incident.  The islands are important to both countries because the territory that owns the islands has “exclusive oil, mineral, and fishing rights in surrounding waters.”

On November 26, two United States Air Force B-52 planes flew over the ADIZ, and the pilots did not identify themselves as required by China.  Although the United States has stated that it does not recognize China’s ADIZ, it is urging commercial pilots to adhere to China’s new requirements, citing safety reasons.  However, Japan has stated that its commercial airlines will not follow China’s requirements.  As tensions rise in the Pacific, the U.S. has cause for concern – Japan and the U.S. have “a mutual security treaty.”   Although the Treaty does have a provision where both parties undertake to solve disputes peacefully, Article V of the Treaty recognizes that each party would “act to meet the common danger” in the event of an armed attack in Japan.

 

Lisa Browning is a 3L and the Training Editor on the Denver Journal of International Law & Policy

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Critical Analysis: U.S. B-52s Cause More Buzz Over Disputed Diaoyu/Senkaku Islands

On Monday, November 26, the United States sent two B-52 bombers over a group of disputed islands in the East China Sea after China recently declared that the islands were within the country’s air defense zone. The disputed islands, called the Diaoyu Islands by the Chinese, and the Senkaku Islands by the Japanese, are at the heart of an international dispute in which each country claims the islands as their own.

After China released new coordinates for its air defense zone, the U.S. flew two unarmed B-52 bombers over the islands.

After China released new coordinates for its air defense zone, the U.S. flew two unarmed B-52 bombers over the disputed islands.

The islands are prized for their strategically significant location to nearby shipping lanes, and for their potential abundance of natural resources. Modern dispute over the ownership of the islands has existed since the 1970s. However, the dispute over the islands seems to be escalating. A little over a year ago Japan sent fighter jets to the islands after a Chinese plane was sighted in the area on December 13, 2012. That marked the first time that aircraft became involved in the dispute.

A little less than a year later, on November 23, 2013, China released information pertaining to the coordinates of its new air defense zone, which happens to encompass the Diaoyu/Senkaku islands. It accompanied the release with a declaration requiring any aircraft entering the zone to clearly mark the nationality of the aircraft and for pilots of the aircraft to identify themselves and to report their flight plans to Chinese authorities. Additionally, China claimed that it would defensively respond to aircraft that refused to follow these procedures.

Three days later, the United States flew two unarmed B-52 bombers over the islands, which lie within the new Chinese air defense zone. The United States claimed that the flyover was part of a training exercise. The United States conducted the exercise following its normal procedures, which disregard China’s new requirements for aircraft entering the zone. China has not directly responded to the actions of the U.S., but claims that the new air defense zone is a proper exercise of its right to self-defense and territorially integrity.

The institution of the Chinese air defense zone and the United State’s flyover of the Diaoyu/Senkaku islands demonstrate that tensions over the disputed islands are escalating. These events come on the heels of a recently released statement by the United States about its focus on enhancing security in the Asia-Pacific region through increasing the presence of U.S. forces. With a larger U.S. presence in the region, and with an already strained relationship between China and Japan, a diplomatic resolution is needed sooner rather than later. In fact, a peaceful resolution to the Diaoyu/Senkaku dispute could help build a bridge to better relations between all parties involved.

 

Lincoln Puffer is a 3L and is the Cite and Source Editor of the Denver Journal of International Law and Policy

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