Constitutional Law – Page 26 – Marquette University Law School Faculty Blog

Bond v. United States: SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance

Post author:Michael M. O'Hear
Post published:June 3, 2014
Post category:Constitutional Law Criminal Law & Process Federalism Public U.S. Supreme Court

In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act. Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes. The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.” (12) This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond. The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.

The underlying facts in Bond were a mix of the mundane and the bizarre.

SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

Post author:Michael M. O'Hear
Post published:May 30, 2014
Post category:Constitutional Law Criminal Law & Process Public U.S. Supreme Court

In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify. Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower. Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests. “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.

An Analysis of the Israel Passport Case, Zivotofsky v. Kerry

Post author:Ryan Scoville
Post published:April 30, 2014
Post category:Constitutional Law International Law & Diplomacy Public

Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, the case concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. After signing the bill into law, President Bush declined to honor its terms, and President Obama has done likewise. Both have argued that the passport requirement impermissibly interferes with the President’s recognition power because it contradicts a longstanding U.S. policy not to acknowledge the sovereignty of any state over Jerusalem. The Zivotofskys appear to agree that honoring the requirement would amount to U.S. recognition of an Israeli state that includes Jerusalem, but contend that the statute is constitutional and binding on the President because Congress shares in the recognition power. Oral argument is scheduled for the fall. If you’re interested, I wrote a brief analysis of the case over at the international law blog Opinio Juris. You can read it here.