Jurisdiction Stripping Circa 2020: What the Dialogue (Still) Has to Teach Us
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Homeland Security
Homeland Security FEDERAL LAW ENFORCEMENT TRAINING CENTERS OFFICE OF CHIEF COUNSEL ARTESIA LEGAL DIVISION ARTESIA, NM INDIAN LAW HANDBOOK 2016 Foreword October 2015 The Federal Law Enforcement Training Centers (FLETC) has a vital mission: to train those who protect our homeland. As a division of the Office of Chief Counsel, the Artesia Legal Division (ALG) is committed to delivering the highest quality legal training to law enforcement agencies and partner organizations in Indian Country and across the nation. In fulfilling this commitment, ALG Attorney-Advisors provide training on all areas of criminal law and procedure, including Constitutional law, authority and jurisdiction, search and seizure, use of force, self-incrimination, courtroom evidence, courtroom testimony, electronic law and evidence, criminal statutes, and civil liability. In addition, ALG provides instruction unique to Indian Country: Indian Country Criminal Jurisdiction, Conservation Law, and the Indian Civil Rights Act. My colleagues and I are pleased to present the first textbook from the FLETC that addresses the unique jurisdictional challenges of Indian Country: the Indian Law Handbook. It is our hope in the ALG that the Indian Law Handbook can serve all law enforcement students and law enforcement officers in Indian Country and can foster greater cooperation between the federal government, state, local, and tribal officers. An additional resource for federal, state, local and tribal law enforcement officers and agents is the LGD website: https://www.fletc.gov/legal-resources i The LGD website has a number of resources including articles, podcasts, links, federal circuit court and Supreme Court case digests, and The Federal Law Enforcement Informer. -
OWRB's Brief in Support of Application to Assume Original Jurisdiction
Case No. #11037 5 IN THE SUPREME COURT OF THE STATE OF OKLAHOMA Oklahoma Water Resources Board, Petitioner, vs. The United States on behalf of the Choctaw Nation of Oklahoma, a federally recognized Indian Tribe; the United States on behalf of the Chickasaw Nation" et aI., Respondents. BRIEF IN SUPPORT OF APPLICATION TO ASSUME ORIGINAL JURISDICTION PATRICK R. WYRICK, OBA #21874 NEAL LEADER, OBA #5310 Solicitor General Senior Assistant Attorney General 313 NE 21 ST Street 313 NE 21 ST Street Oklahoma City, OK 73105 Oklahoma City, OK 73105 (405) 522-4448 (405) 522-4393 (405) 522-0669 FAX (405) 522-0669 FAX [email protected] [email protected] TABLE OF CONTENTS PAGE Background Information 2 Relevant Facts 4 Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983) 6 Ethics Comm'n v. Cullison, 1993 OK37, 850 P.2d 1069 8 43 U.S.C. § 666 6 82 O.S. § 105.6 7 Art. 7, Sec. 4 of the Oklahoma Constitution 8 Summary of the Argument 8 Argument and Authorities - 9 I. The Court should assume original jurisdiction because the adjudication is of critical importance to the State of Oklahoma and to the health, safety, and general welfare of its citizens 9 Keating v. Johnson, 1996 OK 61 , 918 P.2d 51 9 Sporhase v. Nebraska., 458 U.S. 941 (1982) 10 82 O.S. §§ 1-1801.4 10 Art. X, §§ 27A & 39, of the Oklahoma Constitution 10 Okla. Admin. Code §§ 785:1-1-1 10 II. The Court's exercise of original jurisdiction will allow for an expeditious final resolution of claims and issues of critical importance to the State, the Nations, and all other claimants to the water resources at issue ' 11 III. -
The Framers' Constitution: Toward a Theory of Principled Constitutionalism
The Framers’ Constitution: Toward a Theory of Principled Constitutionalism By Geoffrey R. Stone and William P. Marshall September 2011 All expressions of opinion are those of the author or authors. The American Constitution Society (ACS) takes no position on specific legal or policy initiatives. The Framers’ Constitution: Toward a Theory of Principled Constitutionalism Geoffrey R. Stone* & William P. Marshall** For the past forty years, political conservatives have effectively framed the national debate over constitutional interpretation. According to the conservatives’ narrative, their approach to constitutional interpretation adheres to the true meaning of the Constitution and to the Rule of Law, whereas “liberal” jurisprudence is concerned only with achieving specific desired outcomes, without regard to the text, history or meaning of the Constitution. The gains that conservatives have achieved by characterizing the debate in this manner cannot be overstated. Because the public has generally accepted the conservative account, Republican presidents have been much more aggressive than their Democratic counterparts in appointing judges with strongly ideological inclinations, and constitutional doctrine has veered sharply to the right as conservative jurists have become ever bolder in their pursuit of politically conservative results. Meanwhile, at the grassroots level, a new strain of conservative constitutionalism has recently emerged that insists that even such traditional legislative measures as civil rights laws and social welfare programs are unconstitutional, reflecting an even more aggressive conception of conservative judicial ideology. The conservative constitutional narrative is deeply unprincipled and patently wrong, both in its defense of conservative judicial ideology and in its attack on what conservatives deride as a result-oriented “liberal” jurisprudence. -
The 14Th Amendment and Due Process
The 14th Amendment and Due Process The 14th Amendment to the United States Constitution Section 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Within months of the end of the Civil War, former rebellious Confederate states began passing Black Codes. These laws were designed to restrict the civil rights of recently freed African Americans. Though the 13th Amendment had ended slavery, it did not specifically assure the rights of citizenship. Congress soon passed a Civil Rights Act to assure equal civic participation and protection for black people. But President Andrew Johnson vetoed it. He believed that Congress lacked the constitutional authority to enact the law. Congress overrode the veto, but a new constitutional amendment was needed to make sure that civil rights legislation would be constitutional. This was the 14th Amendment. To rejoin the Union, all rebel Southern states had to ratify the new amendment. Dred Scott (Library of Congress) Declared adopted on July 28, 1868, the amendment nullified (voided) the Supreme Court’s decision in Dred Scott which denied citizenship for black Americans. It also provided a constitutional basis for civil rights legislation. Ultimately the new amendment changed our constitution. The Constitution, in its original form, served only as a restriction on the power of the federal government. The rights and protections against government power in the Bill of Rights did not apply to the actions of state governments. -
The General Trends of EU Administrative Law
The General Trends of EU Administrative Law JAN KLUCKA* I. General Introduction The creation of European Administrative Law (hereinafter "EAL") results from interac- tions between the European legal order and those of the EU Member States., Indeed, the EU has created a legal order in permitting mutual influences between national and EALs. This cross-fertilization process has led to the approximation of the applicable administra- tive legal rules and principles that make up EAL. According to Susana de la Sierra, "European Administrative Law is the final step of a process, where various legal orders interact and produce principles or norms of general 2 application in the territories where those legal orders apply." Its inherent feature is its dynamic character in that it is influenced by its reciprocal interactions with the national legal orders. In line with these influences, one can also observe the increasing amount of 3 mixed administrative proceedings. Those proceedings demonstrate the willingness of the EU to maintain and use the national legal rules and structures, instead of absorbing them. Another important aim of EAL is to strengthen the rights enjoyed by individuals vis-a- vis administrative authorities. There is a general trend, both in the Member States and in the European Community (the "Community"), to focus on the relationship between the 4 citizen and the administration and to assert rights of the latter vis-5-vis the former. Judge, European Court of Justice. This article was written as part of a symposium following a summit between the Supreme Court of the United States and the European Court of Justice organized by the SMU Dedman School of Law. -
Baker V. Carr (1962)
Baker v. Carr (1962) Baker v. Carr (1962) Argued: April 19–21, 1961 Re-argued: October 9, 1961 Decided: March 26, 1962 Background In the U.S. each state is responsible for determining its legislative districts. For many decades states drew districts however they wanted. By the 1950s and 1960s, questions arose about whether the states’ division of voting districts was fair. Many states had not changed their district lines in decades. During that time many people moved from rural areas to cities. As a result, a significant number of legislative districts became uneven—for example, a rural district with 500 people and an urban district with 5,000 people each would have only one representative in the state legislature. Some voters filed lawsuits to address the inequities, but federal courts deferred to state laws and would not hear these cases. Federal courts did not hear these cases because they were thought to be “political” matters. Courts were reluctant to interfere when another branch of government (the executive or legislative) made a decision on an issue that was assigned to it by the Constitution. For example, if the president negotiated a treaty with another country (a power granted to the president by the Constitution), the courts would generally not decide a case questioning the legality of the treaty. The power of state legislatures to create voting districts was one of those “political questions” that the courts traditionally had avoided. This is a case about whether federal courts could rule on the way states draw their state boundaries for the purpose of electing members of the state legislature. -
Guantanamo, Boumediene, and Jurisdiction-Stripping: the Mpei Rial President Meets the Imperial Court" (2009)
University of Minnesota Law School Scholarship Repository Constitutional Commentary 2009 Guantanamo, Boumediene, and Jurisdiction- Stripping: The mpI erial President Meets the Imperial Court Martin J. Katz Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Katz, Martin J., "Guantanamo, Boumediene, and Jurisdiction-Stripping: The mpeI rial President Meets the Imperial Court" (2009). Constitutional Commentary. 699. https://scholarship.law.umn.edu/concomm/699 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT Martin J. Katz* INTRODUCTION In Boumediene v. Bush,1 the Supreme Court struck down a major pillar of President Bush's war on terror: the indefinite de tention of terror suspects in Guantanamo Bay, Cuba. The Court held that even non-citizen prisoners held by the United States government on foreign soil could challenge their confinement by seeking a writ of habeas corpus in federal court, and that the procedures the government had provided for such challenges were not an adequate substitute for the writ." As a habeas corpus case, Boumediene may well be revolu tionary.3 However, Boumediene is more than merely a habeas * Interim Dean and Associate Professor of Law. University of Denver College of Law; Yale Law School. J.D. 1991: Harvard College. A.B. 1987. Thanks to Alan Chen. -
Religion in the Public Schools November 2019
Religion in the Public Schools Published online in TASB School Law eSource TASB Legal Services Texas Association of School Boards 512.467.3610 • 800.580.5345 [email protected] Religion in the Public Schools TASB Legal Services Legal Background Several federal and state laws form the foundation that guides public school districts in navigating the complex area of religion in schools. First Amendment The First Amendment to the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . .” U.S. Const. amend. I. The First Amendment applies to school districts as political subdivisions of the state through the Fourteenth Amendment. Engel v. Vitale, 370 U.S. 421 (1962). Together, these laws protect private religious expression but prohibit government action to advance, coerce, or endorse religion in the public schools. Plaintiffs may sue the government for violations of the First Amendment through 42 U.S.C. § 1983 (Section 1983). Establishment Clause The First Amendment Establishment Clause, “Congress shall make no law respecting an establishment of religion . ,” prohibits school districts and their employees from establishing religion. U.S. Const. amend. I. Schools must not advance, coerce, or endorse a particular religion or religion over non-religion. Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989). The U.S. Supreme Court has exercised special vigilance over compliance with the Establishment Clause in elementary and secondary schools because “families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” Edwards v. -
Amicus Brief More Than Ten Days Before Its Due Date
No. 22O154 In the Supreme Court of the United States _______________________________________________________________________________________________________________ NEW HAMPSHIRE, Plaintiff, v. MASSACHUSETTS, Defendant. _______________________________________________________________________________________________________________ BRIEF OF AMICI CURIAE STATES OF OHIO, ARKANSAS, INDIANA, KENTUCKY, LOUISIANA, MISSOURI, NEBRASKA, OKLAHOMA, TEXAS, AND UTAH IN SUPPORT OF NEW HAMPSHIRE’S MOTION FOR LEAVE TO FILE BILL OF COMPLAINT _______________________________________________________________________________________________________________ DAVE YOST BENJAMIN M. FLOWERS* Ohio Attorney General *Counsel of Record 30 E. Broad St., 17th Ohio Solicitor General Floor MICHAEL J. HENDERSHOT Columbus, Ohio 43215 Chief Deputy Solicitor General KYSER BLAKELY Deputy Solicitor General 30 E. Broad St., 17th Floor Columbus, Ohio 43215 614-466-8980 [email protected] Counsel for Amicus Curiae State of Ohio (additional counsel listed at the end of the brief) i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................... ii STATEMENT OF AMICI INTEREST ....................... 1 SUMMARY OF ARGUMENT .................................... 1 ARGUMENT ............................................................... 5 I. This Court’s original jurisdiction in cases between States is mandatory. ......................... 5 II. This Court’s cases holding that original jurisdiction is discretionary should not be applied to disputes between -
Federal Ownership of Land in Oregon and Other States West of the Mississippi
Federal Ownership of Land in Oregon and Other States West of the Mississippi Susan Lea Smith Professor of Law Willamette University January 22, 2016 This analysis responds to the request of the Legal Counsel of the Association of Oregon Counties that I share my opinion about the validity of legal arguments made by Ms. Kris Anne Hall1 concerning the ownership and control of property by the federal government in Harney County, Oregon (namely Malheur Wildlife Refuge). My opinion is based on several decades of experience as a natural resources lawyer who litigated these and related issues, and more recently as a legal scholar who has studied and published on such matters. 2 I have taught natural resources law, including public land law, in Oregon at Willamette University College of Law for the past 26 years. I have also taught Water Law, Federal Constitutional Law, Administrative Law, and State and Local Government Law. Ms. Hall takes the position that the federal government is prohibited by the United States Constitution from owning land within states, other than federal enclaves created with the consent of the states. Ms. Hall adamantly argues that the Enclave Clause itself limits the United States to owning enclave property.3 She also argues that the Property Clause powers only apply to Territories, and that the US holds such property in trust until the Territories become states, at which time the US can no longer own property except pursuant to the Enclave Clause. 4 Ms. Hall asserts that “the Equal Footing doctrine” supports her argument. Ms. Hall primarily relies on an approach to Constitutional interpretation called “textualism.” She maintains that the Constitution can be understood simply by reading the text, without any detailed knowledge of the history and context of its formulation and without taking into account how the Constitution has been authoritatively interpreted by federal courts over the past two centuries. -
The Constitution of the State of Texas: an Annotated and Comparative Analysis
THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS PREAMBLE Humbly invoking the blessings of Almighty God. the people of the State of Texas. do ordain and establish this Constitution. History Each Texas State Constitution has been preceded by a brief preamble. Until 1876 the wording was essentially that of 1845 if we subtract the transitional clause (in brackets below) which refers to the admission of Texas to the federal union. The 1845 preamble read: "We The People of the Republic of Texas, acknow- ledging with gratitude the grace and beneficence of God, in permitting us to make choice of our form of government, [do in accordance with the provisions of the Joint Resolutions for annexing Texas to the United States, approved March 1st, one thousand eight hundred and forty-five,] ordain and establish this Constitu- tion." In 1861 the "State" was substituted for "Republic" but thereafter consti- tution makers settled for "people of Texas" until "State" reappeared in the present preamble. Although the 1875 wording differs somewhat from that of earlier preambles the purpose seems to be the same, i.e., a reference or appeal to God. Explanation No Texas cases refer to or construe the preamble. We do know from references to the longer preamble of the United States Constitution that a preamble is not a part of the constitution. Literally it goes before. Hence a preamble cannot be an independent source of power although it may help in the definition and interpre- tation of powers found in the body of the constitution. Chief Justice Marshall used the preamble to the United States Constitution as primary textual proof that, in the federal union, the powers of the national government came not from the states but from the people, the same source which the states acknowledged as the origin of their own governmental powers (McCulloch v. -
IS LESS Philip Hamburger† I. FREE EXERCISE
HAMBURGER.BOOK.DOC 4/13/04 9:44 PM ESSAY MORE IS LESS∗ Philip Hamburger† I. FREE EXERCISE INALIENABLE .................................................... 838 A. The Inalienable Character of Religious Liberty ................. 839 B. The Definition of Religious Liberty..................................... 848 II. BOTH MORE AND LESS ................................................................. 858 A. The Contingency of Free Exercise in the Courts ................ 858 B. Mere Definition Rather than Condition? ............................ 861 C. Historical Explanations......................................................... 864 D. Expansion and Contingency................................................. 869 E. The Absolute Right of Religious Belief ............................... 872 F. Fratricide (or the Periphery Undermines the Core) ........... 874 G. No Harm, No Foul? .............................................................. 882 H. Other Examples..................................................................... 885 CONCLUSION....................................................................................... 890 S the First Amendment’s right of free exercise of religion condi- I tional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that “the right of every man to exercise [‘Religion’] . is in its nature an un- alienable right” and “therefore that in matters of Religion, no mans right is abridged by