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  • Category Archives Power of the U.S. Supreme Court?
  • POTUS WOTUS EPA ACE and Justice Scalia

    POTUS WOTUS EPA ACE  and Justice Scalia

    President Trump signed an executive order on February 28, 2017, to roll back the waters of the United States (WOTUS) rule that the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers ACE (Corps) promulgated in 2016.

    The Order is entitled, “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

    It instructs EPA and the ACE Corps to begin the process of a rule-making to withdraw the WOTUS rule, id. at § 2(a), and to take appropriate actions in the courts where the rule is in litigation. Id. § 2(c).

    President Trump signed executive order on February 28, 2017 instructs EPA and the Corps to

    “CONSIDER” ADOPTING THE SCALIA TEST FROM RAPANOS V. UNITED STATES, 547 U.S. 715 (2006).

    ORDER § 3. SCALIA OPINED IN RAPANOS THAT, “THE PHRASE ‘THE WATERS OF THE UNITED STATES’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .” 547 U.S. at 739.

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    Notice that Trump signed the EO back at the end of February 2017, and the EPA is JUST NOW sending the information out. It looks like they have deliberately STALLED.

    These statements have to be in by June 19, 2017. Heads up!

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    THE FEDERAL DEFINITION OF NAVIGABLE WATERS OF THE UNITED STATES

    IS LOCATED AT 33 CFR 329.4

    • 329.4 General definition.

    Navigable waters of the United States are those waters that are subject to the ebb (the outgoing phase; when the tide drains away from the shore) and flow (the incoming phase; when water rises again) of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of  navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

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    The federal definition 40 CFR 230 .3 pertains to the Clean Water Act and waters of the United States.

    WOTUS BY OBAMA

    The definition of the Waters of the United States (WOTUS) is very dangerous and overreaching. Under section (o), parts of the definition read as follows:
    o) The term waters of the United States means: …

    (ii) All interstate waters, including interstate wetlands;

    (iv) All impoundments of waters otherwise identified as waters of the United States under this section;

    (vi) All waters adjacent to a water identified in paragraphs (o)(1)(i) through (v) of this section, including  wetlands, ponds, lakes, oxbows, impoundments, and similar waters;

    (vii) All waters in paragraphs (o)(1)(vii)(A) through (E) of this section where they are determined, on a case-specific basis, to have a  significant nexus to a water identified in paragraphs (o)(1)(i) through (iii) of this section. The waters identified in each of paragraphs (o)(1)(vii)(A) through (E) of this section are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (o)(1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (o)(1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an  adjacent water under paragraph (o)(1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.

    (A)Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.

    (viii) All waters located within the 100-year floodplain of a water identified in paragraphs (o)(1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tideline or ordinary high water mark of a water identified in paragraphs (o)(1)(i) through (v) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (o)(1)(i) through (iii) of this section. For waters determined to have a  significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in paragraphs (o)(1)(i) through (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (o)(1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (o)(1)(vi), they are an adjacent water and no case-specific  significant nexus analysis is required.

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    WRITING FOR THE COURT IN THE 2014 CLEAN AIR ACT CASE, UTILITY AIR REGULATORY GROUP V. EPA, JUSTICE SCALIA DECLARED EPA’S INTERPRETATION UNREASONABLE BECAUSE IT WOULD BRING ABOUT AN ENORMOUS AND TRANSFORMATIVE EXPANSION IN EPA’S REGULATORY AUTHORITY WITHOUT CLEAR CONGRESSIONAL AUTHORIZATION.

    JUSTICE SCALIA DECLARED “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,’” he wrote.
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    OBAMA VETOES GOP ATTEMPT TO BLOCK WOTUS WATER RULE

    By Timothy Cama – 01/19/16 07:22 PM EST

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    EPA ‘Waters of U.S.’ Rule Is a Power Grab | National Review

    www.nationalreview.com/article/431134/epa-waters-us-rule-power-grab

    by Rupert Darwall February 11, 2016 4:00 AM. Obama’s power-mad agency claims jurisdiction over land and water use almost everywhere in … EPA, under the Clean Water Act, a statute Congress passed two years after its clean-air sibling. … partially checked, in what has become known as the Waters of the U.S. (WOTUS).

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    President Trump signed an executive order on February 28, 2017, to roll back the waters of the United States (WOTUS) rule that the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) promulgated in 2016. The Order is entitled, “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” It instructs EPA and the Corps to begin the process of a rule-making to withdraw the WOTUS rule, id. at § 2(a), and to take appropriate actions in the courts where the rule is in litigation. Id. § 2(c).

    The Order raises a number of interesting issues. First, it instructs EPA and the Corps to “consider” adopting the Scalia test from Rapanos v. United States, 547 U.S. 715 (2006). Order § 3. Scalia opined in Rapanos that, “the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .” 547 U.S. at 739.

    Because Rapanos was a split decision (4–1–4), there is no controlling opinion. The circuit courts, applying the Marks analysis, have concluded that Kennedy’s lone concurring opinion, which focused on the significant-nexus test, is the controlling standard from the case. (A couple of circuits have allowed Kennedy’s or Scalia’s opinion to be used to establish jurisdiction.) All of the circuit courts and almost all of the district courts have rejected the argument that Scalia’s test should be adopted as the sole jurisdictional test. The Supreme Court has denied certiorari numerous times since Rapanos on WOTUS issues, so we have no clarification from the Court on how to interpret the decision.

    IT IS CLEAR WHY THE ADMINISTRATION HAS CHOSEN SCALIA’S TEST—IT IS MORE RESTRICTIVE OF JURISDICTION.

     THAN THE KENNEDY TEST, WHICH EPA AND THE CORPS ADOPTED IN THE WOTUS RULE.

    UNDER THE SCALIA TEST, MOST HEADWATER SYSTEMS—ESPECIALLY IN THE ARID WEST—WOULD NOT BE SUBJECT TO  THE CLEAN WATER ACT (CWA) BECAUSE MOST HEADWATER SYSTEMS ARE EPHEMERAL OR INTERMITTENT AND ARE THEREFORE NOT “RELATIVELY PERMANENT WATERS.” HEADWATER SYSTEMS COMPRISE A LARGE PART OF THE NATION’S TRIBUTARY SYSTEM. IN PLACES LIKE ARIZONA EVEN THE MAIN CHANNELS ARE DRY MOST OF THE YEAR AND, THEREFORE, MAY NOT MEET THE SCALIA TEST FOR JURISDICTION.

     

    THE SCALIA TEST WOULD LIKELY ALSO REMOVE MANY OF THE NATIONS’ WETLANDS FROM . EXPANSION IN EPA’S REGULATORY AUTHORITY WITHOUT CLEAR CONGRESSIONAL AUTHORIZATION.

     

    AS JUSTICE SCALIA SAID “WE EXPECT CONGRESS TO SPEAK CLEARLY IF IT WISHES TO ASSIGN TO AN AGENCY DECISIONS OF VAST ‘ECONOMIC AND POLITICAL SIGNIFICANCE,’”

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    President Trump Issues Executive Order Directing EPA to Review the WOTUS Rule

    Thursday, March 2, 2017

    On February 28, 2017, President Trump issued an Executive Order directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACE) to review the federal Clean Water Act (CWA) definition of “Waters of the United States”(WOTUS) Rule (the Rule) (80 Fed. Reg. 37054, June 29, 2015). Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, Executive Order (Feb. 28, 2017) (EO). The EO directs EPA and ACE to review the WOTUS Rule for consistency with the policies set forth in the EO which specifies that “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The EO also directs EPA and ACE to “publish for notice and comment a proposed rule rescinding or revising the [WOTUS] rule, as appropriate and consistent with law.”

    Pursuant to the EO, EPA and ACE submitted for publication in the Federal Register, a notification of intention to review and rescind or revise the Rule. Notice of Intention to Review and Rescind or Revise the Clean Water Rule, Environmental Protection Agency and Dept. of Defense, Feb. 28, 2017. The notification will be published in the Federal Register in the coming days.

    THE EO ALSO DIRECTS EPA AND ACE TO CONSIDER INTERPRETING THE TERM “NAVIGABLE WATERS,”IN A MANNER CONSISTENT WITH THE OPINION OF JUSTICE SCALIA IN RAPANOS V. UNITED STATES, 547 U.S. 715 (2006). The Rapanos opinion set out two separate standards for CWA jurisdiction. See Rapanos at 715‑718. Justice Scalia, writing for a plurality, determined that the statute should only apply when there is a “continuous surface connection”between “relatively permanent”waters. Id. at 743. Justice Kennedy, on the other hand, determined that jurisdiction should be based on whether a water or wetland possesses “a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759. Neither standard was supported by a majority, so neither standard has become binding precedent. See Id. at 715-718. Regulators, however, have generally followed Justice Kennedy’s standard,

    AND THUS, A SWITCH TO JUSTICE SCALIA’S STANDARD WOULD REPRESENT A SIGNIFICANT CHANGE IN INTERPRETATION OF THE JURISDICTIONAL EXTENT OF THE CWA. SEE 80 FED. REG. 37054, 37056, 37060-37061 [WOTUS RULE].


  • Constitutional Justice Scalia and Gorsuch?

    Constitutional Justice Scalia and Gorsuch?

    President Trump’s pick to fill Justice’s Scalia’s seat on the Supreme Court, Neil Gorsuch shares the late justice’s commitment to statutory text and the original public meaning of the Constitution.

    JUDGE GORSUCH’S RECORD ON THE COURT OF APPEALS FOR THE 10TH CIRCUIT SHOWS THAT HE WILL DEFEND “THE ORIGINAL INTENT” OF OUR FOUNDING FATHERS.

    “THE ORIGINAL INTENT” OF OUR FOUNDING FATHERS IS WELL DOCUMENTED IN “THE ARTICLES OF CONFEDERATION”

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    Documents from the Continental Congress and the Constitutional Convention, 1774-1789

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    This collection CONTAINS 277 DOCUMENTS RELATING TO THE WORK OF CONGRESS AND THE DRAFTING AND RATIFICATION OF THE CONSTITUTION.

    It includes the essay To Form a More Perfect Union, which provides background information on the weaknesses in the Articles of Confederation and the call for a new Constitution. Articles of Confederation and Perpetual Union…
    “Confederation include the following references in the Journals of the Continental Congress:
    • June 11, 1776 – The Continental Congress resolved “that a committee be appointed to prepare and digest the form of a confederation to be entered into between these colonies.”
    • June 12, 1776 – The committee members were appointed “to prepare and digest the form of a confederation to be entered into between these colonies.”
    • ——————————————————————————————
    JULY 4, 1776 THE DECLARATION OF INDEPENDENCE (added for emphasis)
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    • July 12, 1776 – The first draft of the Articles of Confederation was presented to the Continental Congress.
    • November 15, 1777 – The Continental Congress adopted the Articles of Confederation.
    • November 17, 1777 – The Articles of Confederation were submitted to the states with a request for immediate action.
    • June 25, 1778 – A committee of three was appointed to prepare the form of a ratification of the Articles of Confederation.
    • June 26, 1778 – The Articles of Confederation were ordered to be engrossed.
    • June 27, 1778 – The first engrossed copy was found to be incorrect, and a second engrossed copy was ordered.
    • July 9, 1778 – The second engrossed copy of the Articles of Confederation was signed and ratified by the delegates from eight states: New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, and South Carolina.
    • July 21, 1778 – North Carolina delegates signed the ratification of the Articles of Confederation.
    • July 24, 1778 – Georgia delegates signed the ratification of the Articles of Confederation.
    • November 26, 1778 – New Jersey delegates signed the ratification of the Articles of Confederation.
    • May 5, 1779 – Delaware delegates signed the ratification of the Articles of Confederation.
    • March 1, 1781 – Maryland delegates signed the ratification of the Articles of Confederation. The Articles were finally ratified by all thirteen states.
    • February 21, 1787 – Congress approved a plan to hold a convention in Philadelphia to revise the Articles of Confederation.

    “THE ORIGINAL INTENT” OF OUR FOUNDING FATHERS IS WELL DOCUMENTED

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    JULY 4, 1776 THE DECLARATION OF INDEPENDENCE
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    MARCH 4, 1789 THE CONSTITUTION OF THE UNITED STATES OF AMERICA
    Date effective‎: ‎MARCH 4, 1789 Ratified‎: ‎June 21, 1788

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

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    September 25, 1789 THE BILL OF RIGHTS
    The first 10 amendments to the Constitution make up the Bill of Rights. Written by James Madison in response to calls from several states for greater constitutional protection for individual liberties.

    Ratified‎: ‎DECEMBER 15, 1791
    Location‎: ‎National Archives
    Author(s)‎: ‎James Madison
    Created‎: ‎September 25, 1789
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    IN 1789 “THE ORIGINAL INTENT” OF OUR FOUNDING FATHERS WAS WELL DOCUMENTED IN 277 DOCUMENTS. period

    THE PRINTED EPHEMERA COLLECTION COMPRISES ” 28,000″ PRIMARY-SOURCE ITEMS DATING FROM THE SEVENTEENTH CENTURY TO THE PRESENT AND ENCOMPASSES KEY EVENTS AND ERAS IN AMERICAN HISTORY.
    An American Time Capsule: Three Centuries of Broadsides and Other Printed Ephemera
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    FEB 1, 2017

    UPDATING TO THE PRESENT AND ENCOMPASSES KEY EVENTS AND ERAS IN AMERICAN HISTORY.
    DONALD J. TRUMP IS THE PRESIDENT OF THE UNITED STATES OF AMERICA.

    PRESIDENT TRUMP NOMINATED JUDGE NEIL GORSUCH, A CONSTITUTIONAL JUSTICE, AS HIS PICK TO REPLACE THE LATE JUSTICE ANTONIN SCALIA ON THE U.S. SUPREME COURT

    JUDGE GORSUCH’S RECORD ON THE COURT OF APPEALS FOR THE 10TH CIRCUIT SHOWS THAT HE WILL DEFEND “THE ORIGINAL INTENT” OF OUR FOUNDING FATHERS.

    IN 1789 “THE ORIGINAL INTENT” OF OUR FOUNDING FATHERS WAS WELL DOCUMENTED IN 277 DOCUMENTS. period

    MARCH 4, 1789 THE CONSTITUTION OF THE UNITED STATES OF AMERICA

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

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    THE LAW OF THE LAND IS THE U.S. CONSTITUTION

    TRUMP IS THE  LAW AND ORDER PRESIDENT

    GOD BLESS PRESIDENT DONALD J. TRUMP

    GOD BLESS NEIL GORSUCH


  • National Sovereignty and International Law

    National Sovereignty and International Law

    JUSTICE ANTONIN SCALIA (joined by Chief Justice William Rehnquist and Justice Clarence Thomas) dissented and disagreed with the Court’s invocation of extraterritorial authority.

    THAT JUDGES MAY CREATE RIGHTS WHERE CONGRESS HAS NOT AUTHORIZED THEM TO DO SO, THE COURT COUNTENANCES JUDICIAL OCCUPATION OF A DOMAIN THAT BELONGS TO THE PEOPLE’S REPRESENTATIVES

    JUSTICE SCALIA’S CONCURRENCE REFLECTS THE CONCERNS THAT JUDICIAL IN-VOCATION OF

    INTERNATIONAL LAW ALLOWS ACTIVISM SUBJECTIVITY CONTRARY TO RULE OF LAW AND DEMOCRATIC VALUES.

    JUSTICE SCALIA CONTINUED HIS DISAGREEMENT BY ARGUING THAT

    JUDGES VIOLATE THE  SEPARATION OF POWERS WHEN ADOPTING FOREIGN OR INTERNATIONAL LAWS:

     “WE AMERICANS HAVE A METHOD FOR MAKING THE LAWS THAT ARE OVER US….

    FOR OVER TWO DECADES NOW,  UNELECTED FEDERAL JUDGES HAVE BEEN USURPING THIS LAWMAKING POWER BY CONVERTING WHAT THEY REGARD AS NORMS OF INTERNATIONAL LAW INTO AMERICAN LAW.’

     THE DANGERS UNDERLYING JUDICIAL REFERENCE TO FOREIGN AND INTERNATIONAL LAWS

     THE INVOCATION OF FOREIGN AND INTERNATIONAL LAW, WHETHER AS SUPPORTING PRECEDENT OR AS THE BASES FOR LIABILITY THEORIES, REPRESENTS A DISTURBING DEVELOPMENT IN THE RECENT INTERPRETATION AND DEVELOPMENT OF FEDERAL LAW.

     IT ALSO DEVIATES FROM THE TRADITIONAL ROLE OF GOVERNANCE AND THE JUDICIAL ROLE IN THE U.S. SYSTEM.”

    ‘ THE PRACTICE, AS BORK HAS CONTENDED, “COMES PRETTY CLOSE TO ACCEPTING FOREIGN CONTROL OF THE AMERICAN CONSTITUTION.”

    WITH SUCH IMPLICATIONS, JUDGES SHOULD REFRAIN FROM LOOKING OUTSIDE U.S. BORDERS AND RECOGNIZE THAT IT IS U.S. LAW THEY ARE INTERPRETING AND APPLYING.

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     SOVEREIGNTY CONCERNS

    A NATION HAS THE RIGHT TO MAKE ITS OWN LAWS AND TO DEFINE THE MEANS BY WHICH THOSE LAWS ARE CREATED AND INTERPRETED.

     IN THE UNITED STATES, LAWS ARE NOT CREATED  BY THE JUDICIARY, BUT INSTEAD,  BY COLLABORATION BETWEEN THE ELECTED BRANCHES.  “SOVEREIGNTY DENOTES INDEPENDENCE. A SOVEREIGN [STATE] IS ONE THAT ACKNOWLEDGES NO SUPERIOR POWER OVER ITS OWN GOVERNMENT.

    ” INDEED, SOVEREIGNTY WAS THE BASIS FOR THE REVOLUTION AND THE INDEPENDENCE OF THE UNITED STATES.ET THE IDEA OF SOVEREIGNTY IS UNDER ATTACK IN TODAY’S SOCIETY-IN PART BY JUDGES WHO RELY ON EXTRATERRITORIAL AUTHORITY”

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    ARE YOU VOTING IN 2016?

    RONALD REGAN, originally an AMERICAN ACTOR and politician, became the 40th President of the United States serving from 1981 to 1989. His term saw a restoration of prosperity at home, with the goal of achieving “peace through strength” abroad.

    RONALD REGAN APPOINTED JUSTICE ANTONIN SCALIA to the U.S. Supreme Court  in 1986 . ..

    WHO WILL BE JUDGING AMERICA FOR DECADES?

    JUSTICE ANTONIN SCALIA  is going to be replaced on the U.S. Supreme Court in 2017.

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    ENLIGHTEN YOUR SELF.

    You can read the full text of the 47 page document here.

    Sovereignty and the American Courts at the Cocktail Party of …

    ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2009&context=ilj

    by DJ Kochan – ‎2005 – ‎Cited by 53 – ‎Related articles

    competition for authority between national sovereignty and international law has … Among American law professors, international law became in the 90s and.

    Part I of this Article presents the background regarding the invocation of foreign and inter-national law in federal courts. It discusses their use as precedential and supportive sources of authority and as the bases for legal liability.

    Part II discusses the fundamental infirmities and dangers related to the invocation of international and foreign law in U.S. jurisprudence. Further, this Part discusses the implications of such behavior on sovereignty, the rule of law, democratic values, constitutional adherence, foreign policy, and development. In conclusion, this Article finds that adherence or even reference to foreign and international authorities should be avoided if the foundational principles of the Republic are to be respected.

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    INTRODUCTION

    With increasing frequency and heightened debate, U.S. courts have been citing

    foreign and “international” law as authority for domestic decisions. This trend

    is inappropriate, un-democratic, and dangerous.’ The judicial citation to foreign and

    international law “a relatively new and certainly controversial” phenomenon is part of a larger discussion on the role of international law in domestic governance.

    THE U.S JUDICIARY AND INTERNATIONAL LAW

    Over the past several years, the invocation of foreign and international law

    in domestic judicial opinions has been rising in a number of contentious areas of law. As the trend continues parties of all political preferences have an interest-and may be impacted  if foreign sources of authority are given legitimacy

    JUSTICE ANTONIN SCALIA (joined by Chief Justice William Rehnquist and Justice Clarence Thomas)dissented and disagreed with the Court’s invocation of extraterritorial authority.

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    INDEED, Over the past several years, the invocation of foreign and international law in domestic judicial opinions has been rising in a number of contentious areas of law. As the trend continues parties of all political preferences have an interest-and may be impacted  if foreign sources of authority are given legitimacy

    These 16 States Banned ‘Sharia Law’ – Is YOURS on the List?

    toprightnews.com/these-16-states-have-all-introduced-legislation-to-ban-…

    Oct 1, 2015 – Well some states are fighting back. 16 U.S. states have introduced legislation to ban or restrict Sharia law since 2013. The list was compiled by …

    And Muslim pressure groups like the Council on American Islamic Relations (CAIR) have pushed to force Sharia Law on our courts and law enforcement —

    with some U.S. judges insanely agreeing to comply.

    New Jersey judge recently cited Sharia Law in refusing to grant a Muslim woman a restraining order in a horrible case of sexual assault and abuse, because her husband said his abuse was acceptable “according to his Muslim beliefs.” In Texas, a group of unlicensed Muslim “judges” have set up an “Islamic Tribunal” which they say will “resolve disputes” in law, family and businesses using, of course, Sharia Law — not the U.S. Constitution.

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    JUSTICE SCALIA stated in dissent:[T]he Prize for the Court’s Most Feeble Effort to fabricate “national consensus” must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called “world community,” and respondents to opinion polls …. [I]rrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people. “…

    [W] here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution. “

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    Justice Scalia’s dissent contributed to a growing debate as to the utility and appropriateness of world views in defining domestic law.

    Lawrence v. Texas found unconstitutional a Texas statute bar-ring same-sex sodomy. Writing for the majority, Justice Anthony Kennedy cited as authority a decision by the

    European Court of Human Rights

    permitting homosexual conduct as evidence of a lack of consensus on such conduct’s illegality.”  Again, Justice Scalia (joined by then Chief Justice Rehnquist and Justice Thomas) dissented, in part because of the Court’s reference to foreign authorities.

    Here, Justice Scalia stated in dissent: In any event, an “emerging awareness” is by definition not “deeply rooted in this Nation’s history and tradition[s],”as we have said “fundamental right” status requires. Constitutional entitlements do not spring into existence …

     because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” but rather rejected the claimed right to sodomy on the ground that such a right was not “‘deeply  rooted in this Nation’s history and tradition.”‘ Bowers’ rational-basis holding is likewise  devoid of any reliance on the views of a “wider civilization,”….

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    The Court’s discussion of these foreign views…is therefore meaningless dicta. Dangerous

    dicta, however, since “this Court.. .should not impose foreign moods, fads, or fashions

    on Americans.” According to Justice Scalia, domestic law should not be defined

    by, nor depend on, international or foreign views.

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    In Sosa, JUSTICE SCALIA concurred in the judgment but opined separately (joined

    by then Chief Justice Rehnquist and Justice Thomas) to contest the idea of federal common law INCLUDING INTERNATIONAL LAW AS “NONSENSE ON STILTS”:

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    In modern international human rights litigation of the sort that has proliferated since Filartiga v. Pena-Irala, a federal court must first create the underlying federal command But” the fact that a rule has been recognized as [customary inter-national law], by itself, is  not an adequate basis for viewing that rule as part of federal common law. JUSTICE SCALIA emphasized the general rejection of federal “common law” since Erie Railroad Co. v. Tompkins .

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    JUSTICE SCALIA also questioned the interference with Congress and foreign relations associated with judicial recognition of customary international law claims.

    JUSTICE SCALIA OPINED THAT ASKING JUDGES TO DEFINE INTERNATIONAL LAWS APPLICABLE IN U.S. COURTS THREATENS DEMOCRATIC PRINCIPLES: TO BE SURE, TODAY’S OPINION DOES NOT ITSELF precipitate a direct confrontation with Congress by creating a cause of action that Congress has not. But it invites precisely that action by the lower courts …. In holding open the possibility

    National Sovereignty and International Law

    JUSTICE ANTONIN SCALIA (joined by Chief Justice William Rehnquist and Justice Clarence Thomas)dissented and disagreed with the Court’s invocation of extraterritorial authority.