Tag: Constitutional Law

Ganging Up on RICO: Narrowing Gonzalez v. Raich to Preserve the Significance of the Jurisdictional Element as a Constitutional Limitation in the Racketeer Influenced and Corrupt Organizations Act – Note by Noelle Formosa

From Volume 82, Number 1 (November 2008)
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Almost four years after the Supreme Court decided Gonzales v. Raich, its uncertain effect on as-applied constitutional challenges remains visible in many lower federal court decisions. Circuit courts struggle to determine when and how to apply Raich’s “broad regulatory-scheme principle,” which, when liberally construed, states that Congress may regulate any intrastate activity so long as the regulation is rationally included within a broad statutory scheme. Lower federal courts are faced with unanswered questions about the scope of the broad regulatory-scheme principle, particularly whether the principle applies to a statute that does not regulate a “fungible commodity,” and whether Raich governs when the principle’s application will extinguish the viability of as-applied challenges to criminal statutes that include explicit jurisdictional elements. The latter of these two questions provides the basis for this Note, which suggests an answer to the jurisdictional-element question in the context of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) as applied to noneconomic gang activity.

 

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The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey – Postscript (Comment) by Patrick J. Glen

From Volume 82, Number 1 (November 2008)
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On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment. On its face, the holding of the Fourth Circuit regarding this issue seems spectacularly uninteresting—immigration proceedings have long been recognized to be civil in nature, and thus the Sixth Amendment does not provide any right to counsel. Without a constitutional right to counsel, there can be no constitutional violation if privately retained counsel performs ineffectively, as there will be no nexus in those circumstances between the counsel’s ineffectiveness and the state action required for invoking the Constitution. Notwithstanding this seemingly straight-forward analysis, the Fourth Circuit joined just one other court, the Court of Appeals for the Seventh Circuit, in finding that ineffective assistance of counsel in immigration proceedings does not constitute a violation of an alien’s right to due process. Every other court of appeals that addressed this issue has found that, although the Sixth Amendment does not guarantee a right to counsel in immigration proceedings, ineffective assistance of counsel may render the proceedings so fundamentally unfair and so impeding the presentation of an alien’s case that the ineffectiveness could deprive an alien of his right to due process under the Fifth Amendment. These courts have reached this conclusion in a perfunctory fashion, without squarely reconciling Supreme Court precedent that seems to argue strongly against the possibility that the ineffective assistance of counsel may constitute a violation of due process in circumstances where the Constitution does not provide a right to counsel.

 

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The Unabomber Strikes Again: An Investigation into Whether the Victim and Witness Protection Act of 1982 Violates the First Amendment or Conflicts with the Copyright Act of 1976 – Note by Michael B. Norman

From Volume 81, Number 6 (September 2008)
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Over a decade after being arrested in a western Montana cabin, Theodore Kaczynski is once again grabbing headlines. Although he is currently in a federal maximum-security prison serving the life sentence that he received for committing the Unabomber crimes, Kaczynski is now engaged “in a legal battle with the federal government and a group of his victims over the future of [his] handwritten papers.” The government has proposed selling “sanitized versions of the materials” via an Internet auction in order to raise money for a group of his victims, and Kaczynski is fighting that plan.

At issue, largely, is the extent of the government’s power under the Victim and Witness Protection Act of 1982 (“VWPA”) and further, what the government may do with the property it seized from Kaczynski. This property includes his “handwritten . . . journals, diaries and drafts of his anti-technology manifesto . . . [which] contain blunt assessments of 16 mail bombings from 1978 to 1995 that killed 3 people and injured 28, as well as his musings on the suffering of victims and their families.” Moreover, due to its unique set of facts, Kaczynski’s case also provides an intriguing opportunity to evaluate whether the VWPA violates the First Amendment of the U.S. Constitution or conflicts with the Copyright Act of 1976 (“Copyright Act”), and to explore the fascinating interplay between these two areas of law, both of which provide protection for individuals’ free expression.

 

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Carhart, Constitutional Rights, and the Psychology of Regret – Article by Chris Guthrie

From Volume 81, Number 5 (July 2008)
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In Gonzales v. Carhart, the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court’s analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court’s misunderstanding of this emotion, this Article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other rights protected by the Constitution.

 

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Brown v. Kamehameha Schools: An Instrumental Critique of Remedial Self-Segregation in Private Education – Note by Donald A. Thompson

From Volume 81, Number 4 (May 2008)
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The Kamehameha Schools are a series of private, nonprofit, nonsectarian campuses interspersed throughout the Hawaiian Islands. Founded in the late nineteenth century, they have operated continuously ever since, fulfilling their mission to provide a “good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women.” With over five thousand students enrolled in kindergarten through grade twelve, the Kamehameha Schools are collectively among the largest independent primary and secondary educational institutions in the United States. Otherwise—apart from their strong academic reputation and champion athletic teams—they might be perceived as fairly typical schools. This perception is deceiving. To the contrary, they are anything but.

 

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The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine – Article by Margaret H. Lemos

From Volume 81, Number 3 (March 2008)
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The nondelegation doctrine is the subject of a vast and ever-expanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress’s other delegate—the federal judiciary.

 

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On the Commander in Chief Power – Article by David Luban

From Volume 81, Number 3 (March 2008)
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Since the attacks of September 11, 2001, the Bush Administration has made frequent dramatic appeals to the president’s commander in chief power, arguing that his decisions as military commander in chief in the global war on terror cannot and should not be second-guessed by the other branches of government. The “cannot” comes from Article 2 of the Constitution, which assigns the commander in chief authority solely to the president. Presumably this is what Mr. Bradbury, quoted in the epigraph above, means when he asserts that under the law of war the president is always right. The “should not” comes from elementary common sense. It seems self-evident that legislators and judges lack institutional competence to kibitz commanders about military matters. Their meddling would invite disaster. In its strong “cannot” form, the argument holds that it would be unconstitutional to enforce otherwise-valid laws that constrain the commander in chief’s pursuit of the war—a separation of powers argument for what has come to be known as the “commander in chief override” of other laws. In its weaker “should not” form, the argument holds that other branches of government, particularly courts, must adopt an extremely deferential stance toward the commander in chief’s decisions. Lawyers and legislators simply do not backseat drive on the battlefield.

 

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Unreasonably Wrong: The Supreme Court’s Supremacy, the AEDPA Standard, and Carey v. Musladin – Note by Padraic Foran

From Volume 81, Number 3 (March 2008)
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Plenty of injustices go judicially unresolved. On the Supreme Court’s docket, however, injustices in the criminal context have become alarmingly perfunctory, and the cause is a single procedural mechanism: a piece of legislation passed in 1996 called the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Though in effect for more than ten years now, two representative cases serve to demonstrate the enormous power of the AEDPA.

 

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