Today in Supreme Court History: November 10, 1975

11/10/1975: Buckley v. Valeo argued.

Senator James Buckley

Comments

[Dan Schiavetta]

Ex Parte Crouch, 112 U.S. 178 (decided November 10, 1884): federal courts cannot via habeas vacate state court convictions except on jurisdictional grounds (gradually overruled, most specifically by Brown v. Allen, 1953)

Baltimore & O.R. Co. v. Kepner, 314 U.S. 44 (decided November 10, 1941): state court cannot interfere with resident injured railroad employee’s statutorily permitted federal venue of FELA action even if inconvenient for railroad (suit brought in New York courthouse 700 miles away even though accident happened 20 miles from employee’s house in Ohio) (winning side was represented by one Morrison R. Waite, grandson of a Chief Justice) (court notes expense of bringing 25 local witnesses to New York; looks to me like plaintiff wanted to use the prospect of litigation costs to force settlement in a meritless case)

Pfaff v. Wells Electronics, Inc., 525 U.S. 55 (decided November 10, 1998): patent invalid because inventor waited too long after entering into sale “order” before applying for it (it has to be within one year of sale, 35 U.S.C. §102(b))

[Dilan Esper]

Crouch is interesting, because your characterization of it is what I would call the standard narrative about habeas. Justice Gorsuch has written about it in some concurrences, it is what I learned in federal courts in law school, and there's a whole bunch of scholarship from the 1950's-80's about it.

But there's a big-time revisionist take on it, which you can find in a bunch of recent law review articles. Under the revisionist take, in fact, there was never a "only jurisdictional" limit to the Great Writ. Rather it was available broadly, under this narrative, to correct any sorts of errors in the criminal process. Justice Jackson was obviously influenced by this scholarship and it shows up in her dissent in Jones v. Hendrix.

[Dan Schiavetta]

Thanks.

The more expansive view you mention was greatly restricted, and placed on a different conceptual basis, by the Antiterrorism and Effective Death Penalty Act of 1996. Now the error has to violate “clearly established federal law”, which has been narrowly defined.

[Juste Milieu]

And under which enumerated power exactly did Congress authorize federal courts to review state criminal judgments on habeas corpus?

[Dan Schiavetta]

It's not an Article I (Congress) power. The federal courts' authority derives independently from Article III, which vests in them the "Judicial power of the United States" and gives them power to adjudicate (among other things) "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States".

[Juste Milieu]

The federal judiciary didn’t “independently” take it upon itself to begin reviewing state criminal judgments on habeas corpus. That authority did not exist (Ex parte Dorr, 44 U.S. 103 (1845)) until conferred by Congress in the Habeas Corpus Act of 1867. My question is: Pursuant to what enumerated power did Congress enact the first Habeas Corpus Act?

[Dilan Esper]

The Necessary and Proper Clause. It applies to all powers of the government, not just legislative power. The Suspension Clause and Article III make clear courts can issue writs of habeas corpus, and the Necessary And Proper Clause allows Congrss to regulate it.

[Dan Schiavetta]

I’ve never thought about this question and I thank both of you for mentioning it.

Though — the power of federal courts to intervene (at some point) whenever a federal issue arises seems to be inherent in the Constitutional grant of power. The “Judicial power of the United States” extends to “all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States”. It doesn’t restrict that power to cases brought in federal court. The feds can get involved whenever a federal issue arises, though due to respect for “federalism” they wait until the state court appellate process is completed.

[Dilan Esper]

Right, but his question is about the enumerated power for Congress to pass a statute like 2241, 2254, or AEDPA.

And the answer to THAT is "necessary and proper". The habeas power is part of the judicial power to decide cases in law and equity that arise under the constitution or laws of the United States, the Suspension Clause confirms this is part of the courts' power, and the necessary and proper clause allows Congress to pass any law (other than an unjustified suspension) necessary and proper to carry the habeas power into effect.

[Juste Milieu]

The n&p cl won’t do it, as it creates no free-standing enumerated power. And coupling it with the suspension cl doesn’t help because, whatever might be contested about the scope of the Writ that clause references (or whether it even creates a positive right to habeas relief at all), that writ provided no vehicle by which a federal court could effectively nullify a criminal conviction obtained in a state court of competent jurisdiction. Turning habeas review of state convictions into anything remotely resembling a “second appeal” took congressional action—which brings us back to the original question: Pursuant to what enumerated power exactly was that action taken?

Captcrisis’s suggestion that federal courts have “inherent” power to step in to iron things out “whenever a federal issue arises” (subject only to federalism-informed limitations on the timing of federal judicial intervention) sounds a lot like the argument that federal habeas review of state criminal convictions is assured by the Supremacy Cl. Nope. Federal courts lack “inherent power” to award writs of Habeas Corpus, as that power exists only to the extent it is “given by written law.” Ex party Bola, 8 U.S. (4 Cranch) 75, 94 (1807). The “written law” state authorizing review of state criminal convictions by federal courts is the 1867 Act as amended from time to time. Again, I ask: On what enumerated power did Congress rely to “give” us that law?

[Dilan Esper]

The n&p cl won’t do it, as it creates no free-standing enumerated power.

The necessary and proper clause does do it, and the stuff they teach you in Libertarian Law School was rejected by the framers when they supplanted the Articles of Confederation.

[Frank Drackman]

Who was the last "Major" party (I'm including Repubiclowns but only barely) Presidential Candidate to take Federal Funds for the General Erection? I'm thinking McCain in 08' (One of the many bad moves he made, let's see Palin, "suspending" his cam-pain, not Be-otch slapping Barry Hussein for attending a Black Surpremacist Church...)

Frank

[apedad]

Look it up yourself: https://www.fec.gov/introduction-campaign-finance/understanding-ways-support-federal-candidates/presidential-elections/public-funding-presidential-elections/

Scroll down to Report and Resources and click on the Public funds received by candidates 1976-present (.xls) link.

[Frank Drackman]

Wow, You’re quite the order giver, I’ll bet you’re “that guy” who’s always sending food back to get cooked “correctly” (but not recognizing the Cumofsumyounguy the cook adds). Because I grew up playing Chess, I always know the answers to the questions (questions get much better responses than orders, i.e. “You know, AlGore invented this thing called the Internets, on which you can look things up?”) And yeah, I’m gonna click on some link that’s probably gay child porn or worse. I know it was McCain in 2008, because I have this thing called “Long Term Memory”

Frank

[Frank Drackman]

Took a safe "Back Door" route to the site
Total Amount of Pubic Funds for 2008 Presidential Erection
General
John McCain (R) $84,103,800.00 100.00%
Barack Obama (D) $0.00 0.00%

That might be the Second thing I've ever liked about Barry Hussein (killing OBL was First) He didn't make me pay for his erection.

and you know who got the most Pubic money for the Primary??
John Edwards for President (D) $12,882,877.42 59.29%

Did Edwards actually run in any Primaries? he certainly had a lot of Erections.
Frank "Pays for his own erections"

[Estragon]

All packed and ready to go, Frank?

[Frank Drackman]

Already on the way,
well to Long Goy-land for a relaxing weekend with the In-laws, trying to minimize time spent in 3rd World-level Airports (JFK)

Frank

[Estragon]

I wonder if you’ll be able to post as much

[Frank Drackman]

It's Israel, not Gaza, AlGore's Internets still works

[Estragon]

That’s why I said “as much” rather than “at all”

Why do I have a sneaking suspicion the pace of posting is going to remain unchanged

[Frank Drackman]

Again, it's Israel, not one of the Reverend's "Klinger" States with dial up Internet, and I'll be doing the same job there I do here, e-mail travels at the speed of light, so....Atlanta to Tel Aviv some 6,000 miles, it'll take my posts 1/30 of a second longer to get to the US.

Frank

[Estragon]

“I’ll be doing the same job there I do here”

And what job is that again? You just seem to have a lot of time to post. I had sort of thought with the crisis over there you’d be otherwise engaged, I am relieved I will not be missing out on the bi-hourly Sandusky posts (I’m not sure we can call them jokes anymore, it’s a little played out IMHO).

Be sure to tell your new colleagues about your Baruch Goldstein and Kahane hot takes— I’d be curious to hear how that goes over.