Thursday, October 7, 2010

9th Circuit Accepts Foreign Friends

The Ninth Circuit Court of Appeals on Monday announced that it would consider amici briefs filed by foreign governments related to Arizona's SB-1070. Politico reports that Arizona Governor Jan Brewer attacks the court for forfeiting American sovereignty.
“As do many citizens, I find it incredibly offensive that these foreign governments are using our court system to meddle in a domestic legal dispute and to oppose the rule of law,” the Republican governor said in a statement shortly after the state’s motion was filed Tuesday evening.

“What’s even more offensive is that this effort has been supported by the U.S. Department of Justice. American sovereignty begins in the U.S. Constitution and at the border,” she added. “I am confident the 9th Circuit will do the right thing and recognize foreign interference in U.S. legal proceedings and allow the State of Arizona to respond to their brief.”

Let's get this straight- the Ninth Circuit is deciding this case under the laws of the United States. The dispute is between the federal government and a state government. It affects foreign governments, as their citizens as legal residents of these nations, are being subjected to a discriminatory law. Mexico's brief cites potential problems in enforcing drug trafficking laws that would arise form SB 1070. Tell me exactly how considering the effects of a court decision on trade partners and neighboring countries violates U.S. sovereignty. Is that materially different from a court looking to the effects of a decision on prospective petitioners?

This is exactly why the Ninth Circuit accepts these briefs. the enactment of SB 1070 would likely bring foreign governments into the courts as plaintiffs in defense of their citizens. Does Jan Brewer think that when a foreign government submits to the judgment of an American court that it damages American sovereignty? It does precisely the opposite.

Politico whiffs on this issue pretty hard:
Brewer’s motion should resonate among conservative legal scholars worried about giving foreign legal systems a voice in American jurisprudence. These concerns are a reaction to a school of legal thought arguing that American judges should look to foreign laws and courts for assistance in interpreting the U.S. Constitution, particularly in regard to basic human rights issues. Supreme Court Justice Anthony M. Kennedy is arguably the leading spokesperson for this approach, as noted in a 2005 New Yorker profile.
Really, this has nothing to do with whether American judges can reasonably incorporate principles from foreign courts in deciding cases under American law. That is a valid debate about the nature of the common law system in a globalized era. The issue here is whether we think foreign governments are likely to be affected by our courts and whether we would prefer that they enter the process as amici curiae or as plaintiffs. Eleventh Amendment constitutional immunity precludes the possibility that a foreign government can sue a state, but that does not prevent it from fully supporting the litigation of one of its citizens injured by Arizona's laws.

The Supreme Court automatically accepts amicus briefs from sovereigns under its rule 37.4, but when the rule was drafted, there had been very few amicus briefs filed by foreign governments. They were not included in the rule. However, the Court does selectively accept amicus curiae arguments from foreign governments. One researcher says that SCOTUS almost always does.

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