Igartua, et al v. US, et al

Filing 920101124

Opinion

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var WPFootnote1 = '                   The term "People" clarifies that Representatives are not\
to be chosen by state legislatures. Seth Lipsky, The Citizen\'s\
Constitution 5 n.12 (2009).\
'

var WPFootnote2 = '                   While the population of Puerto Rico is included in census\
data collected by the Secretary of Commerce, so is census data from\
U.S. territories and possessions other than states. 13 U.S.C.\
§ 191. Only the data on the population of the states is\
transmitted to Congress by the President for apportionment\
purposes. 2 U.S.C. § 2a(a); 13 U.S.C. § 141(b).\
'

var WPFootnote3 = '                   Indeed, the thirteen former colonies\' identity as\
"states" predated the Constitution. See, e.g., Wesberry v.\
Sanders, 376 U.S. 1, 9 (1964) ("Though the Articles [of\
Confederation] established a central government for the United\
States, as the former colonies were even then called, the States\
retained most of their sovereignty, like independent nations bound\
together only by treaties.").\
'

var WPFootnote4 = '                   The special relationship between the Commonwealth of\
Puerto Rico and the United States is described in detail in Igartúa\
III and will not be repeated here. See Igartúa-de la Rosa v.\
United States, 417 F.3d 145, 147 (1st Cir. 2005) (en banc).\
'

var WPFootnote5 = '                   Although we do not normally deal with arguments raised\
for the first time by amici, this court has discretion to do so. \
See, e.g., Aroostook Band of Micmacs v. Ryan, 484 F.3d 41, 51 n.11\
(1st Cir. 2007). The importance of this case warrants the exercise\
of that discretion.\
'

var WPFootnote6 = '                   We also reject the argument made by Igartúa, but not made\
by the government, that this case must be heard by a three-judge\
district court under 28 U.S.C. § 2284(a). That statute provides\
that a "district court of three judges shall be convened\
when . . . an action is filed challenging the constitutionality of\
the apportionment of congressional districts." Id. That is not\
the issue in this case. \
'

var WPFootnote7 = '                   Although the government of Puerto Rico relies on these\
and similar cases, the cases guarantee the rights of individuals\
against the government of Puerto Rico and are not concerned with an\
expansion or recharacterization of the status of Puerto Rico\
itself. Similarly, application of the Eleventh Amendment to Puerto\
Rico is not a grant of authority to Puerto Rico, but rather is a\
restriction on the federal courts\' jurisdiction in certain cases. \
See, e.g., Fresenius Medical Care Cardiovascular Res., Inc. v. P.R.\
& the Carribean Cardiovascual Center Corp., 322 F.3d 56, 63 (1st\
Cir. 2003).\
'

var WPFootnote8 = '                   The residents of Puerto Rico have the federal writ of\
habeas corpus available to them by statute. 48 U.S.C. § 872.\
'

var WPFootnote9 = '                   The caselaw cited by the government of Puerto Rico\
illustrates the point. The Supreme Court has often emphasized the\
importance of the right to vote. See, e.g., Burson v. Freeman, 504\
U.S. 191, 198 (1992); Harper v. Va. State Bd. of Elections, 383\
U.S. 663, 667 (1966); Reynolds v. Sims, 377 U.S. 533, 560 (1964)\
(quoting Wesberry, 376 U.S. at 17-18); see also Dep\'t of Commerce\
v. Montana, 503 U.S. 442 (1992). However, in each of these cases\
the Court has addressed the voting rights of citizens "of the\
several States." \
              In other words, the Court\'s recognition of the right to vote\
has been consistently cabined by the geographical limits set out in\
the Constitution. See, e.g., Wesberry, 376 U.S. at 17; Heald v.\
District of Columbia, 259 U.S. 114, 124 (1922) (upholding a tax\
levied on residents of the District of Columbia, reasoning that\
"[t]here is no constitutional provision which so limits the power\
of Congress that taxes can be imposed only upon those who have\
political representation").\
'

var WPFootnote10 = '                   The government of Puerto Rico does not join this\
argument.\
'

var WPFootnote11 = '                   The American Declaration of the Rights and Duties of Man\
was not addressed by the majority in Igartúa III. Like the\
Universal Declaration on Human Rights and the Inter-American\
Democratic Charter, this agreement is merely an aspirational\
statement. Garza v. Lappin, 253 F.3d 918, 923 (7th Cir. 2001)\
(noting that the declaration "is merely an aspirational document\
that, in itself, creates no directly enforceable rights"); see also\
Flores v. S. Peru Copper Corp., 414 F.3d 233, 263 (2d Cir. 2003).\
'

var WPFootnote12 = '                   The dissent argues that Igartúa does not possess the\
constitutional right he asserts, but argues that Congress could\
extend the franchise to the citizens of Puerto Rico without making\
Puerto Rico a state or ratifying a constitutional amendment. As\
explained above, this argument is foreclosed by our en banc\
decision in Igartúa III. The dissent makes three arguments, each\
of which lacks merit. \
              First, the dissent cites caselaw that existed when we decided\
Igartúa III. Second, the dissent suggests that Congress is not\
limited by Article I when it implements a treaty obligation, citing\
Missouri v. Holland, 252 U.S. 416 (1920). Neither plaintiff nor\
the Commonwealth make this argument. But even if the argument were\
not waived, Holland does not sweep so broadly. That decision held\
that Congress may legislate beyond its Commerce Clause power to\
implement a treaty. Holland, 452 U.S. at 432-33. It did not hold\
that Congress may disregard Article I\'s structural provisions\
governing the election of Representatives, not to mention similar\
provisions in Article II and the Fourteenth Amendment. \
              Third, the dissent contends that the Framers did not intend to\
imbue the distinction between a "state" and a "territory" in the\
Constitution with any meaning. This claim, like much of the\
dissent\'s argument, ignores that this court is an inferior court\
subject to Supreme Court precedent. There is no dispute that\
Supreme Court doctrine has long distinguished between the\
Constitution\'s treatment of states and territories See, e.g.,\
Boumediene v. Bush, 553 U.S. 723, 757-58 (2008) (discussing the\
Insular Cases).\
'

var WPFootnote13 = '                   Contrary to Igartúa and the dissent\'s assertions, the\
Supreme Court\'s engagement with international law in Abbott v.\
Abbott, 130 S. Ct. 1983 (2010), only reinforces our conclusion. In\
that case, the Court addressed a provision of the Hague Convention\
on the Civil Aspects of International Child Abduction, Oct. 24,\
1980, T.I.A.S. No. 11670, which Congress had explicitly implemented\
through the International Child Abduction Remedies Act, 42 U.S.C.\
§ 11601 et seq. Id. at 1987.\
'

var WPFootnote14 = '                   Medellín did not purport to undercut Sosa. As a circuit\
court, we are not empowered to determine that a Supreme Court\
decision has been overruled. Citizens United v. Fed. Election\
Comm\'n, 130 S. Ct. 876, 893 (2010).\
'

var WPFootnote15 = '                   Carefully considered Supreme Court dicta, though not\
binding, "must be accorded great weight and should be treated as\
authoritative." Crowe v. Bolduc, 365 F.3d 86, 92 (1st Cir. 2004)\
(quoting United States v. Santana, 6 F.3d 1, 9 (1st Cir. 1993))\
(internal quotation mark omitted). Although the Supreme Court may\
ignore its own dicta, we are a lower court bound by the Supreme\
Court. Neither the brevity of the discussion in Sosa nor the\
concessions of the petitioner in that case suggests that the\
Supreme Court did not carefully consider its conclusions about the\
ICCPR.\
'

var WPFootnote16 = '                   Article II, Section 1, Clause 2 describes the process for\
electing the President and Vice President, in part, as follows:\
\
Each State shall appoint, in such Manner as\
the Legislature thereof may direct, a Number\
of Electors, equal to the whole Number of\
Senators and Representatives to which the\
State may be entitled in the Congress . . . .\
\
The Twelfth Amendment specifies that the electors shall meet "in\
their respective states" to cast ballots for President and Vice\
President. U.S. Const. amend. XII.\
\
              Article I, Section 2, Clause 1 provides:\
\
The House of Representatives shall be composed\
of Members chosen every second Year by the\
People of the several States, and the Electors\
in each State shall have the Qualifications\
requisite for Electors of the most numerous\
Branch of the State Legislature.\
'

var WPFootnote17 = '                   Although I recognize that Supreme Court dicta may be more\
persuasive than such statements made by other courts, the Supreme\
Court itself has recognized the limitations of its dicta: "[W]e are\
not bound to follow our dicta in a prior case in which the point\
now at issue was not fully debated." Cent. Va. Cmty. Coll. v.\
Katz, 546 U.S. 356, 363 (2006) (quoting Cohens v. Virgina, 6 Wheat.\
264, 399 (1821) ("It is a maxim not to be disregarded, that general\
expressions, in every opinion, are to be taken in connection with\
the case in which those expressions are used. If they go beyond\
the case, they may be respected, but ought not to control the\
judgment in a subsequent suit when the very point is presented for\
decision.")).\
'

var WPFootnote18 = '                   In that first reference to the ICCPR, the Court in Sosa\
stated that the Senate has at times "expressly declined to give the\
federal courts the task of interpreting and applying international\
human rights law, as when its ratification of the International\
Covenant on Civil and Political Rights declared that the\
substantive provisions of the document were not self-executing." \
542 U.S. at 128. Later in the decision the Court stated: "[T]he\
United States ratified the Covenant on the express understanding\
that it was not self-executing and so did not itself create\
obligations enforceable in the federal courts." Id. at 735. As\
Judge Torruella notes, however, both of the Supreme Court\'s\
observations were dicta because "the question of the ICCPR\'s self-execution was never presented to the Court" and the petitioner had\
conceded that it was not self-executing.\
'

var WPFootnote19 = '                   Judge Howard explained that the Senate\'s non-self-execution declaration concerning the domestic effect of the ICCPR\
was "in reality[] an attempt to legislate concerning the internal\
implementation of a treaty," which the Senate lacked the power to\
do. Igartúa III, 417 F.3d at 190-91 (dissenting opinion). Judge\
Howard noted that the declaration was therefore "merely an\
expression of the Senate\'s view of domestic policy . . . [with] no\
domestic effect." Id. at 191. The Supreme Court in Sosa did not\
conclude otherwise. See id. at 191 n.63 ("Because the question in\
Sosa was not the binding effect of the Senate\'s non-self-execution\
declaration in determining whether the ICCPR establishes a private\
cause of action, the parties did not present the Court with (and it\
did not address) the separation of powers arguments questioning the\
Senate\'s authority to issue such declarations.").\
'

var WPFootnote20 = '                   Whether Congress\'s plenary authority to regulate Puerto\
Rico under the Territory Clause of the Constitution also could\
provide a basis for such action is a question beyond the scope of\
this case. See U.S. Const. art. IV, § 3, cl. 2 ("The Congress\
shall have Power to dispose of and make all needful Rules and\
Regulations respecting the Territory or other Property belonging to\
the United States . . . .").\
'

var WPFootnote21 = '                   "In this en banc decision, we now put the constitutional\
claim fully at rest . . . . After the panel granted rehearing in\
this case to examine a more elaborate version of the treaty\
argument, the en banc court determined that the matter should be\
heard by the full court." Igartúa-de la Rosa v. United States, 417\
F.3d 145, 148 (1st Cir. 2005) ("Igartúa III"). By this maneuver,\
the panel was prevented from reconsidering its original decision.\
This action, that is, convoking an en banc court to prevent a panel\
from reaching an outcome contrary to that which non-panel members\
favored, is unprecedented in the history of this court and is at\
least one of the reasons why I do not feel bound by this oppressive\
action. Others reasons will follow.\
'

var WPFootnote22 = '                   See Downes v. Bidwell, 182 U.S. 244 (1901); Balzac v.\
Porto Rico, 258 U.S. 298 (1922). See generally James E. Kerr, The\
Insular Cases: The Role of the Judiciary in American Expansionism\
(1982); see also Rubin Francis Weston, Racism in U.S. Imperialism:\
The Influence of Racial Assumptions on American Foreign Policy,\
1893-1946 at 15 (1972):\
\
Those who advocated overseas expansion faced\
this dilemma: What kind of relationship would\
the new peoples have to the body politic? Was\
it to be the relationship of the\
Reconstruction period, an attempt at political\
equality for dissimilar races, or was it to be\
the Southern \'counterrevolutionary\' point of\
view which denied the basic American\
constitutional rights to people of color? The\
actions of the federal government during the\
imperial period and the relegation of the\
Negro to a status of second-class citizenship\
indicated that the Southern point of view\
would prevail. The racism which caused the\
relegation of the Negro to a status of\
inferiority was to be applied to the overseas\
possessions of the United States. (citation\
omitted).\
'

var WPFootnote23 = '                   Cf. Califano v. Gautier Torres, 435 U.S. 1, 3 n.4 (1978)\
("Puerto Rico has a relationship to the United States \'that has no\
parallel in our history.\'") (citing Examining Bd. of Engineers,\
Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 596\
(1976)); Boumediene v. Bush, 553 U.S. 723, 758 (2008) ("It may well\
be that over time the ties between the United States and any of its\
Territories [have] strengthen[ed] in ways that are of\
constitutional significance.").\
'

var WPFootnote24 = '                   As Justice Brennan stated in Torres v. Puerto Rico, 442\
U.S. 465 (1979), "Whatever the validity of the [Insular Cases] in\
the particular historical context in which they were decided, those\
cases are clearly not authority for questioning the application of\
the Fourth Amendment -- or any other provision of the Bill of\
Rights -- to the Commonwealth of Puerto Rico in the 1970\'s." Id.\
at 475-6 (Brennan, J., concurring); see also Boumediene, 553 U.S.\
at 758 (quoting the above language from Torres and noting "that\
\'the specific circumstances of each particular case\' are relevant\
in determining the geographic scope of the Constitution" (quoting\
Reid v. Covert, 354 U.S. 1, 54 (1957) (Frankfurter, J.,\
concurring)).\
'

var WPFootnote25 = '                   See also Dick Thornburgh, Puerto Rico\'s Future: A Time to\
Decide 53 (2007) (characterizing Balzac as "a federal judicial\
mandate for a less-than-equal class of U.S. citizenship for\
residents of the unincorporated territories," and noting that\
"Congressional acquiescence in and eventual statutory confirmation\
of this judicial policy has left nearly 4 million U.S. citizens in\
Puerto Rico, as well as the many citizens of smaller island\
territories . . . without government by consent of the governed or\
equal rights and duties of national citizenship, or any federally\
recognized tools of self-determination to end their\
disenfranchisement").\
'

var WPFootnote26 = '                   See Territory of Guam v. Olsen, 431 U.S. 195, 205 (1977)\
(Marshall, Stewart, Rehnquist, and Steven, JJ, dissenting) ("[W]e\
do not doubt that Congress has the authority in the exercise of its\
plenary powers over Territories of the United States . . . to\
reverse Guam\'s decision to reorganize its local court system.")\
(internal citation omitted); Downes, 182 U.S. at 285\
(characterizing the "Territorial Clause" as "absolute in its terms,\
and suggestive of no limitations upon the power of Congress in\
dealing with them").\
'

var WPFootnote27 = '                   It should be noted that under Spanish rule, at the time\
of the invasion of Puerto Rico by the United States, Puerto Ricans\
were not only full Spanish citizens, but they had full voting\
rights and were represented by twelve delegates and six senators in\
the Spanish Cortes (Parliament). Today, Puerto Rico has one so-called "Resident Commissioner," who sits in the House of\
Representatives, but does not have a vote. 48 U.S.C. § 891.\
'

var WPFootnote28 = '                   "Undoubtedly, the right of suffrage is a fundamental\
matter in a free and democratic society. Especially since the right\
to exercise the franchise in a free and unimpaired manner is\
preservative of other basic civil and political rights, any alleged\
infringement of the right of citizens to vote must be carefully and\
meticulously scrutinized." Reynolds v. Sims, 377 U.S. 533, 562\
(1964).\
'

var WPFootnote29 = '                   U.S. Const. art. I. § 3, cl. 2-3; art. I, § 4; art. II,\
§ 1, cl. 2; Amend. XIV, § 2.\
'

var WPFootnote30 = '                   See also José R. Coleman Tió, Six Puerto Rican\
Congressmen Go to Washington, 116 Yale L.J. 1389, 1394 (2007)\
("Absent a clear constitutional intent to deny Congress the power\
to treat Puerto Rico as a state for purposes of representation in\
the House, the broad language of the Territorial Clause seems at\
least to provide a clearer source of power to enfranchise nonstate\
citizens than does the Seat of Government Clause [for D.C.\
residents].").\
'

var WPFootnote31 = '                   For this reason also, the lead opinion is incorrect in\
its suggestion that, because D.C. residents were granted the right\
to vote for president through the 23rd Amendment, the same solution\
is necessarily required for Puerto Rico. The District of Columbia\
and Puerto Rico are different breeds of political entity. See\
District of Columbia v. Carter, 409 U.S. 418, 432 (1973) ("Unlike\
either the States or Territories, the District is truly sui generis\
in our governmental structure."); Coleman Tió, supra at 1395 ("The\
District clearly does not possess the most basic attributes of a\
state: it has no governor and no local legislature analogous to a\
state legislature, it is not governed by a written constitution,\
and it is not sovereign over matters not governed by the U.S.\
Constitution. By contrast, Puerto Rico\'s internal government\
structure is exactly like that of a state." (citing Texas v. White,\
74 U.S. (7 Wall.) 700, 721 (1868) ("A state, in the ordinary sense\
of the Constitution, is a political community of free citizens,\
occupying a territory of defined boundaries, and organized under a\
government sanctioned and limited by a written constitution, and\
established by the consent of the governed.")). Indeed, the\
District is subject to Congress\'s authority under a distinct\
constitutional provision. See U.S. Const. art. I, § 8, cl. 17\
("[The Congress shall have Power] To exercise exclusive Legislation\
in all Cases whatsoever, over such District (not exceeding ten\
Miles square) as may, by Cession of particular States, and the\
Acceptance of Congress, become the Seat of the Government of the\
United States.").\
\
              In any event, I express no opinion on the controversial issue\
of what may be necessary for D.C. residents to obtain the right to\
vote for Members of the House of Representatives. See generally\
Sen. Orrin G. Hatch, Essay, "No Right is More Precious in a Free\
Country": Allowing Americans in the District of Columbia to\
Participate in National Self-Government, 45 Harv. J. on Legis. 287,\
303 (2008) (concluding that the District of Columbia House Voting\
Rights Act of 2007 is constitutional; "neither a constitutional\
amendment nor statehood is necessary for the District\'s residents\
to be granted representation in the House"); Lawrence M. Frankel,\
Comment, National Representation for the District of Columbia: A\
Legislative Solution, 139 U. Pa. L. Rev. 1659, 1708 (1991) ("The\
legislative solution . . . represents a proper exercise of federal\
and congressional power.").\
'

var WPFootnote32 = '                   The approximate total population of all U.S. territories\
and possessions, including Puerto Rico, is about five million.\
'

var WPFootnote33 = '                   See, e.g., Universal Declaration of Human Rights, G.A.\
Res. 217(111)A, U.N. Doc. A/RES/217(111) (Dec.10, 1948);\
Organization of American States, American Declaration of Rights and\
Duties of Man, OAS Res. XXX (1948); OAS, Inter-American Democratic\
Charter, OAS Doc. OEA / Ser. P./ AG RES.1 (XXVIII-E/01) (Sept. 11,\
2001); ICCPR.\
'

var WPFootnote34 = '                   The United States was a member of the Drafting Committee,\
a sub-organ of the Commission on Human Rights of the United\
Nations, since this committee began drafting the ICCPR at its first\
session on June 9-25, 1947. Marc J. Bossuyt, Guide tro the "travaux\
préparatoires" of the International Covenant on Civil and Political\
Rights, XIX Martinus Nijhoff Publishers. Boston(1987), atXIX (. It was not until December 16, 1966, after ten\
sessions of the Drafting Committee, and multiple drafts and\
amendments, that the General Assembly adopted the ICCPR by 106\
votes for approval, 2 votes against approval, and 38 votes of\
abstention. The ICCPR entered into force on March 23, 1976, with\
85 states becoming parties toof both the ICCPR and the Optional\
Protocol by January 1, 1987. Id. at XX. The United States was not\
one of them. It became a signatory party on October 5, 1977, and\
a ratifying full party on June 8, 1992, after the Senate had ratified the\
treaty.\
'

var WPFootnote35 = '                   Indeed, the repeated actions by the Government in this,\
and other similar cases, in so opposing Appellants\' claims to equal\
voting rights are in themselves flagrant violations of accords\
entered into by the United States under Article 2, paragraph 3, of\
the ICCPR, in which it undertook "[t]o ensure that any person whose\
[ICCPR] rights or freedoms . . . are violated shall have an\
effective remedy," and further agreed to ensure that these rights\
be "determined by competent judicial, administrative, or\
legislative authorities, or by any other competent authority\
provided for by the legal system of the State, and to develop the\
possibilities of judicial remedy." ICCPR art. 2(3). Far from\
this, the Government has consistently opposed Appellants\' attempts\
to obtain an effective remedy. Furthermore, it could be argued with\
considerable logic that this court\'s repeated actions in failing to\
enforce these international commitments, themselves result in\
placing the United States in violation of the ICCPR assurances that\
an enforceable judicial remedy would be available.\
'

var WPFootnote36 = '                   The following discussion draws from Judge Howard\'s\
dissenting opinion in Igartúa III, 417 F.3d at 185-92.\
'

var WPFootnote37 = '                   Courts and commentators have used the term "self-\
execution" or "non-self-execution" to include several related but\
differing scenarios. See David N. Cinotti, Note, The New\
Isolationism: Non-Self-Execution Declarations and Treaties as the\
Supreme Law of the Land, 91 Geo. L.J. 1277, 1279-80 (2003)\
(providing three definitions of "non-self-executing" treaties,\
namely treaties that (a) are nonjusticiable, (b) convey no private\
right of action, or (c) require Congress to enact implementing\
legislation); see also Columbia Marine Servs. Inc. v. Reffet Ltd.,\
861 F.2d 18, 21 (2d Cir. 1988) (defining "self-executing" as\
prescribing rules for determining private rights).\
'

var WPFootnote38 = '                   See J.G. Starke, Introduction to International Law 79-80\
(10th ed. 1984) (noting that British law has developed\
independently of customary international law in that, while the\
Crown possesses the power to enter treaties, Parliament must enact\
enabling legislation because otherwise the Crown would be able to\
unilaterally legislate domestic law without Parliament\'s consent);\
see also Ware v. Hylton, 3 U.S. (3 Dall.) 199, 275 (1796)\
(explaining that treaties are traditionally non-self-executing in\
Great Britain in part because "no man living will say that a bare\
proclamation of the King, upon the ground of treaty" is adequate\
authority for enacting domestic law); The Parliament Belge, 4 P.D.\
129 (1879) (holding that a British treaty was non-self executing\
for the same reasoning previously stated); Carlos Manuel Vázquez,\
Treaty-Based Rights and Remedies of Individuals, 92 Col. L. Rev.\
1082, 1111 (1992) (describing long-standing British law that a\
treaty does not have domestic effect until Parliament enacts\
implementing legislation).\
'

var WPFootnote39 = '                   See Louis Henkin, U.S. Ratification of Human Rights\
Conventions: The Ghost of Senator Briker, 89 Am. J. Int\'l L. 341,\
348-50 (1995) (hereinafter Henkin, U.S. Ratification) (noting\
political efforts to undermine treaty obligations that give rise to\
greater human rights obligations); David Sloss, The Domestication\
of International Human Rights: Non-Self-Executing Declarations and\
Human Rights Treaties, 24 Yale J. Int\'l L. 129, 172-3 (1999)\
(noting the Senate\'s reluctance to allow the United States to be\
bound by "nonredundant" human rights obligations -- that is, human\
rights obligations not already enacted into domestic law -- arising\
from treaties).\
'

var WPFootnote40 = '                   See S. Exec. Rep. No. 102-23 (1992), reprinted in 31\
I.L.M. 645, 657 (conditioning the Senate\'s consent on the United\
States\' declaration that the treaty be non-self-executing); see\
also id. at 660 (reprinting a letter from the President to the\
Senate requesting ratification of the ICCPR). But see 138 Cong.\
Rec. 8070 (1992) (statement of Sen. Daniel Moynihan) ("Even though\
the Convention is non-self-executing, the[] [provisions of the\
ICCPR] will now become binding obligations of the United States.").\
'

var WPFootnote41 = '                   See 138 Cong. Rec. 8070-71 (stating that the United\
States would not take any steps to comply with Article 20 that\
would infringe on the right to free speech and association, deeming\
the ICCPR article 7 prohibitions against cruel, inhuman, or\
degrading treatment or punishment to apply only to treatment deemed\
"cruel and unusual" under domestic constitutional law, declining to\
adhere to ICCPR article 15, paragraph 1, and reserving the right to\
treat juveniles as adults under certain circumstances,\
notwithstanding the provisions of ICCPR article 10, paragraphs 2(b)\
and 3, and article 14, paragraph 4).\
'

var WPFootnote42 = '                   "Every citizen shall have the right and the opportunity\
. . . [t]o vote . . . at genuine periodic elections which shall be\
by universal and equal suffrage." ICCPR art. 25.\
'

var WPFootnote43 = '                   The United States "undertakes to respect and to ensure to\
all individuals within its territory and subject to its\
jurisdiction the rights recognized in the present Covenant,\
without distinction of any kind." Id. art. 2, para. 1.\
'

var WPFootnote44 = '                   "Where not already provided for by existing legislati[on]\
. . . each State Party . . . undertakes to take the necessary\
steps, in accordance with its constitutional processes and with the\
provisions of the present Covenant, to adopt such laws or other\
measures as may be necessary to give effect to the rights\
recognized in the present Covenant." Id. art. 2, para. 2.\
'

var WPFootnote45 = '                   The United States agreed to an enforcement mechanism to\
realize and secure the rights recognized by the Covenant, and\
undertook "[t]o ensure that any person whose [ICCPR] rights or\
freedoms . . . are violated shall have an effective remedy" and to\
ensure that these rights are "determined by competent judicial,\
administrative or legislative authorities, or by any other\
competent authority provided for by the legal systems of the State\
and to develop the possibilities of judicial remedy." Id. art. 2,\
para. 3.\
'

var WPFootnote46 = '                   See, e.g., Louis Henkin, Foreign Affairs and the\
Constitution of the United States, 202 (2d ed. 1996) (describing\
the Senate\'s practice of declaring treaties non-self-executing as\
"anti-Constitutional in spirit"); Henkin, supra note 15, at 346\
(arguing that non-self-executing declarations by the Senate may be\
unconstitutional); Cinotti, supra note 13, at 1291 (contending that\
"the President and the Senate do not have constitutional authority\
to make a non-self-execution declaration legally binding"); Jordan\
J. Paust, Avoiding "Fraudulent" Executive Policy: Analysis of Non-Self Execution of the Covenant on Civil and Political Rights, 42\
Dapple L. Rev. 1257, 1265 (1993) (quoting with approval the\
International Law Association\'s statement that it "may well be that\
a non-self-executing declaration . . . does not bind the judicial\
branch"); John Quigley, The International Covenant on Civil and\
Political Rights and the Supremacy Clause, 42 Dapple L. Rev. 1287,\
1298 (1993) (arguing that courts, rather than the Senate, should\
determine whether or not a treaty is non-self-executing); see also\
Charles Dearborn, III, Note, The Domestic Legal Effect of\
Declarations that Treaty Provisions Are Not Self-Executing, 57 Tex.\
L. Rev. 233, 251 (1979) (arguing that declarations might be "an\
invalid attempt by the Senate to enact domestic legislation without\
the concurrence of the House").\
'

var WPFootnote47 = '                   Although the opinion uses the term "reservation"\
throughout, it is clear that what is involved is a "declaration" by\
the Senate. Power Auth. of N.Y., 247 F.2d at 541 (calling the\
Senate\'s statement a "reservation" but noting that the statement\
"made no change in the treaty" and was not a counter-offer").\
'

var WPFootnote48 = '                   Nonetheless, as Justice Scalia points out in his\
concurrence in Stuart: \
\
Of course the Senate has unquestioned power to\
enforce its own understanding of treaties. It\
may, in the form of a resolution, give its\
consent on the basis of conditions. If these\
are agreed to by the President and accepted by\
the other contracting parties, they become\
part of the treaty and of the law of the\
United States. If they are not agreed to by\
the President, his only constitutionally\
permissible course is to decline to ratify the\
treaty, and his ratification without the\
conditions would presumably provide the basis\
for impeachment. Moreover, if Congress does\
not like the interpretation that a treaty has\
been given by the courts or by the President,\
it may abrogate or amend it as a matter of\
internal law by simply enacting inconsistent\
legislation. But it is a far cry from all of\
this to say that the meaning of a treaty can\
be determined, not by a reservation attached\
to the President\'s ratification at the\
instance of the Senate, nor even by formal\
resolution of the Senate unmentioned in the\
President\'s ratification, but by legislative\
history of the sort that we have become\
accustomed to using for purpose of determining\
the meaning of domestic legislation.\
 \
Stuart, 489 U.S. at 375 (Scalia, J. concurring) (emphasis\
added).\
'

var WPFootnote49 = '                   Even the lead opinion recognizes that Sosas\'s statement\
that the ICCPR is non-self executing is dicta. See op. at 29.\
'

var WPFootnote50 = '                   The ICCPR\'s language requiring the United States to\
provide a remedy for violations is no less clear and capable of\
giving rise to enforceable rights. Compare ICCPR art. 2 (United\
States undertakes to "ensure that any person whose rights or\
freedoms as herein recognized are violated shall have an effective\
remedy," and that "any person claiming such a remedy shall have his\
right thereto determined by competent judicial, administrative or\
legislative authorities," and "ensure that the competent\
authorities shall enforce such remedies when granted"), with People\
of Saipan by Guerrero v. U.S. Dep\'t of Interior, 502 F.2d 90, 97\
(9th Cir. 1974) (holding that Article 6 of Trusteeship Agreement\
with Micronesia, which "require[d] the United States to \'promote\
the economic advancement and self-sufficiency of the inhabitants,\
and to this end ... regulate the use of natural resources\' and to\
\'protect the inhabitants against the loss of their lands and\
resources\'" gave rise to "rights enforceable by an individual\
litigant in a domestic court of law" to challenge proposed\
construction of hotel on Trusteeship territory).\
'

var WPFootnote51 = '                   Further, in 1977, the year in which the Carter\
administration first submitted the ICCPR to the Senate for\
ratification, Congress passed a proposed constitutional amendment\
that would have granted the District of Columbia congressional\
voting representation "as if it were a state." See H.R.J. Res.\
554, 95th Cong., 92 Stat. 3795 (1978).\
'

var WPFootnote52 = '                   A similar bill was introduced in the House of\
Representatives on January 6, 2009. H.R. 157, 111th Cong. (2009).\
'

var WPFootnote53 = '                   Commission on Human Rights, 2nd Session (1947) (emphasis\
supplied). At a later session of the Commission, the United States\
made a proposal that would have inserted into paragraph 2 of\
Article 2, a statement to the effect that "[t]he provisions of this\
Covenant shall not themselves become effective as domestic law." \
See Bossuyt, supra note 16, at 62 (quoting U.N. Doc. E/CN.4/224). \
The United States "contended that in some States a ratified treaty\
became the supreme law of the country in accordance with its\
constitution," while "[i]n others a treaty was not automatically\
incorporated in the national legislation, but its provisions had to\
be included in legislation in order that they might become\
enforceable within the country." Id. Although the United States\
argued that its proposal was intended to put all the States on\
equal footing, its proposal was rejected. The Philippines made a\
counter-proposal which provided the substance of the language of\
the text eventually adopted. Amendment E/CN.4/318 (PI); see also\
Bossuyt, supra note 16, at 62.\
'

var WPFootnote54 = '                   It should be noted that in many European legal systems\
and those modeled after them, including France, administrative\
tribunals play an important role in deciding what we normally\
consider constitutional law in the United States.\
'

var WPFootnote55 = '                   This concern was again repeated before the Third\
Committee\'s 18th Session in 1983 by the representatives from Great\
Britain, Italy, India and Australia, who sought to keep the\
remedies "expressly reserved to an independent judiciary, and where\
applicable, to administrative tribunals." Id. at 69. Saudi Arabia\
then proposed substituting "legislative" for "political" in the\
original language, A/C.3/SR.1259, §3 (SA) §10 (Chairman); Bossuyt,\
supra note 16, at 69. After some parliamentary maneuvering, Saudi\
Arabia\'s proposal was amended to read "competent judicial,\
administrative, or legislative or by any other competent authority\
provided for by the legal system of the State, and to develop the\
possibilities of a judicial remedy," thus allowing a remedy to be\
granted by the executive, as well as by action of parliamentary\
commissions or ad hoc legislation designed to remedy a specific\
wrong, yet avoiding the use of the word "political." \
A/C.3/SR.1259, § 12 (SA), § 24 (UAR); Bossuyt, supra note 16, at\
69. This language was adopted and passed at the 1259th meeting of\
the Third Committee by a vote of 87 votes to none against, with one\
abstention. Id.\
'

var WPFootnote56 = '                   Though couched in the language of Article III of the\
Constitution, redressability is yet another judicially-created\
doctrine. See Steel Co. v. Citizens for a Better Env\'t, 523 U.S.\
83, 124 (1998) (Stevens, J., dissenting) ("\'Redressability,\' of\
course, does not appear anywhere in the text of the Constitution. \
Instead, it is a judicial creation of the past 25 years . . . .").\
'

var WPFootnote57 = '                   Because Appellants are seeking to vindicate their rights\
under the ICCPR -- which, as discussed, has become domestic law\
through operation of the Supremacy Clause and gives rise to\
enforceable, individual rights -- and because it is beyond dispute\
that the ongoing denial of those rights is traceable to actions and\
inactions of the United States, the other elements of standing are\
clearly satisfied in this case. See, e.g., United States v.\
Thompson, 928 F.2d 1060, 1066 (11th Cir. 1991) (explaining that a\
self-executing treaty confers standing on "an individual citizen to\
. . . protest a violation of the treaty").\
'

var WPFootnote58 = '                   De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United\
States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222\
(1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes,\
182 U.S. 244; Huus v. New York & Porto Rico Steamship Co., 182 U.S.\
392 (1901).\
'

var WPFootnote59 = '                   See also Bush v. Gore, 531 U.S. 98, 104 (2000); Burson v.\
Freeman, 504 U.S. 191, 198 (1992); Tashjian v. Republican Party,\
479 U.S. 208 (1986); Buckley v. Valeo, 424 U.S. 1, 49 n.55 (1976);\
Lubin v. Panish, 415 U.S. 709, 721 (1974); Bullock v. Carter, 405\
U.S. 134 (1972); City of Phoenix, Ariz. v. Kolodziejski, 399 U.S.\
204 (1970); Harper v. Virginia State Bd. of Elections, 383 U.S.\
663, 667 (1966); Reynolds, 377 U.S. at 561-62.\
'

var WPFootnote60 = '                   See U.S. Const. art. IV, § 3, cl. 2 ("The Congress shall\
have power to dispose of and make all needful Rules and Regulations\
respecting the Territory or other Property belonging to the United\
States; and nothing in this Constitution shall be so construed as\
to Prejudice any Claims of the United States, or of any particular\
State.").\
'

var WPFootnote61 = '                   See U.S. Const. amend. XIV, § 1 ("All persons born or\
naturalized in the United States, and subject to the jurisdiction\
thereof, are citizens of the United States and of the State wherein\
they reside.").\
'

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