Comments on: A vigorous constitutional debate on AEDPA

By: Kent Scheidegger

Kent Scheidegger — Thu, 18 Aug 2005 18:19:48 +0000

Joe Tkac’s position is certainly a supportable one as a matter of policy, but the question is whether it is required by the Constitution of the United States. Can the people of a state, through the democratic process, decide to allow the parole board to consider the circumstances of the original offense in their decision to grant or deny parole? It is a debatable question, and Irons has already had his day in court on it.

Should Congress provide a “heads I win, tails we take it over” system of review, where defendants who win in state court win and otherwise the federal courts consider the question from scratch? Some people, including Senator Biden, think so. But that question was extensively debated and voted on, and those who think not prevailed. Does the Constitution empower the judiciary to overrule Congress’s decision on that question? I think not.

By: Joe Tkac

Joe Tkac — Wed, 17 Aug 2005 17:49:31 +0000

I appreciate all the comments about existing law, precedents, and interpretations, but the heart of the matter is that Irons is still in prison eventhough he has “jumped throught all the hoops” that BPT and the parole board have lined up for him. What does someone have to do to get a parole date? The judge in his case sentenced him to 17 to life and he has been incarcerated for at least 21 years. Judge Reinhart is correct in his suggestion that the parole board has eliminated the difference between life with parole and life without parole. The parole board should be named the non-parole board and eliminated to save the state time and money.

By: Kent Scheidegger

Kent Scheidegger — Fri, 15 Jul 2005 21:06:31 +0000

Qualified immunity in state-officer cases comes from an interpretation, albeit a strained one, of a statute, 42 U.S.C. 1983. It is indeed on point. A remedy created by statute only applies to violations of the law that were clearly violations at the time of the act, not to dubious cases. Congress created the remedy and can limit its scope.

Another analogous doctrine is the Full Faith and Credit Act. Congress can decide when and to what extent federal courts will deny relief to people who have already litigated and lost the same claim in state court, regardless of the federal court’s view of the merits.

In answer to Janet Metcalf’s question, the panel consists of Judges Reinhardt and Noonan, who concurred in the issuance of the briefing order, and Judge Fernandez, who dissented. If Reinhardt and Noonan really go down this road, look for a dissent from Fernandez that scorches the paper it is written on.

By: Brian

Brian — Fri, 15 Jul 2005 13:24:11 +0000

Qualified immunity is not constitutionally required. Rather, it is a prudential doctrine designed to limit the “social costs” of litigation against public officials for their official acts. These costs “include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Should Congress want to create causes of action against federal or state officials which apply without regard for the official’s good faith, I don’t see any reason why this would be unconstitutional.

Indeed, Harlow itself was a Bivens action–a remedy created entirely by the Court–so the Court’s initial basis for creating the immunity doctrine was even stronger than, say, in the case of a Section 1983 action, which was created by Congress.

By: karl

karl — Fri, 15 Jul 2005 02:31:25 +0000

Hans:

You can’t be serious can you? Qualified immunity is compelled, according to the Court’s prior proceedings, by the very constitution itself not by a mere statute as in AEDPA litigation. There is no settled area of the law where, finding constitutional error, a court, assuming the issue has been properly presented, can deny relief. Expect to see Irons or a Real ID Act case (or a SPA case if it passes) or a similar Congressional power to regulate Article III jurisdiction case before the Court in the coming Term as Congress is going wild with this silly type of legislation.

- k

By: Hans Bader

Hans Bader — Thu, 14 Jul 2005 22:37:56 +0000

How is “restricting the source of law,” as AEDPA does in requiring that the challenged court decision be clearly erroneous, objectionable? The defense of qualified immunity in civil cases does the same thing, limiting the source of law the challenger can rely upon to seek damages from the government official who allegedly violated her constitutional rights — by requiring that the plaintiff show that the law was “clearly established” at the time the defendant acted, based on controlling Supreme Court and appellate court precedent. No one has ever suggested that that violates the separation of powers or the principle of judicial review.

By: Janet Metcalf

Janet Metcalf — Thu, 14 Jul 2005 20:00:21 +0000

who are the members of the panel?

By: Heather Lloyd

Heather Lloyd — Thu, 14 Jul 2005 13:49:04 +0000

The briefs are now included in the post.

By: Habeas

Habeas — Wed, 13 Jul 2005 20:47:28 +0000

Any chance you can post the briefs online as PDFs? They’d be interesting to see.