"Undead" Wartime Cases: Stare Decisis and the Lessons of History

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration's reliance on World War II-era decisions --Ex parte Quirin, In re Yamashita, Hirota v. MacArthur, and Johnson v. Eisentrager--opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by Executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts--none of which should be repeated. But what does it really mean to invoke the lessons of history? Is it merely a rhetorical device or should it have some role in determining the stare decisis effect of these old wartime cases? The fact that each of the four cases cited by the Bush Administration has since been set aside by the United States Supreme Court raises questions about whether stare decisis ever applied to them at all. Can the lessons of history answer those questions?

This Article explores the potential legal meanings of the “lessons of history.” It distinguishes and weighs a number of possible models for how history might be used: (1) history as facts complicating or undermining prior decisions; (2) history as precedent-replacement, with the judgments of Congress, the Executive, or others taking the place of that of judges; and (3) history as a vehicle for constitutional principles, like a fear of Executive aggrandizement in wartime or a belief that “the Constitution is not a suicide pact.” Using the four key cases here as examples --Quirin, Yamashita, Hirota, and Eisentrager--the Article examines the benefits and pitfalls of allowing courts to engage in each of these types of analysis. The result is a clearer understanding not only of how history should affect the fate of old wartime cases, but of the roles history can play more generally.

Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation

The vital role of Spending Clause legislation in the operation of our government flies below the popular radar. Not many people realize that programs like Social Security, special education, and the current economic stimulus efforts take the form of laws exercising Congress's power under the Spending Clause of the Constitution. Spending Clause statutes exercise this power by imposing conditions on the funding recipients. But this source of expansive federal power is under pressure. The United States Supreme Court's conservative members have developed and begun to use more aggressively a clear statement rule of interpretation that, by placing strict requirements regarding the conditions contained in the statutory text, narrows the reach of Spending Clause legislation. This Article provides a comprehensive look at the development and use of the clear statement rule for federal spending legislation. It uses a single statutory scheme, the Individuals with Disabilities Education Act, as a lens to examine the extent of reliance on the rule, with particular focus on two recent cases. I review the federalism-based justifications for the rule and recommend a rule of appropriate scope and strength. The purpose of giving states notice of their essential obligations under spending legislation is served by a far less rigid version of the rule-- one that looks to the core obligations imposed by the statute, and recognizes notice drawn from legislative history, judicial interpretations, and administrative interpretations, in addition to statutory text.

Dynamic Federalism in Human Rights Treaty Implementation

In response to the growing academic and political movement that opposes the direct incorporation of treaties into domestic federal law, numerous scholars have proposed that states take on an increased role in the domestic interpretation and implementation of international human rights treaties. The focus of this scholarship to date has been to locate doctrinal gaps where state legislatures and courts may act without intruding in areas of traditionally federal jurisdiction. Thus far, however, little effort has been directed towards modeling an affirmative obligation for state participation in treaty implementation, despite the fact that state action is arguably required, both pragmatically and doctrinally, if the United States is to comply with its commitments under international human rights law. In this Article, I argue that reframing treaty implementation through a dynamic federalist model could be productive and even necessary, if the United States is going to meet its existing international obligations. As an example, I discuss the ongoing litigation over the United States' failure to honor its obligations under the Vienna Convention on Consular Relations (VCCR). Federal actors have relied on federalism concerns to avoid forcing states to remedy violations of Convention rights, thus leaving the question of whether the United States will reach compliance entirely in the hands of the states, which have generally been slow to take up the call. Drawing on a model proposed by Justice Breyer, I contend that adopting a dynamic federalist model to implement and enforce the VCCR could help to move beyond this impasse, and perhaps more importantly, could help realize the benefits of federalism within the context of human rights treaty implementation.