Author: Peter Spiro

by Peter Spiro

Justice Kennedy has returned to foreign sources in his Eighth Amendment jurisprudence with today’s decision in Graham v. Florida, striking down state statutes sentencing juveniles to life without parole for crimes other than homicide:

[A]s petitioner contends and respondent does not contest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders. We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, ratified by every nation except the United States and Somalia, prohibits the imposition of “life imprisonment without possibility of release . . . for offences committed by persons below eighteen years of age.” Brief for Petitioner 66; Brief for Amnesty International et al. as Amici Curiae 15–17. As we concluded in Roper with respect to the juvenile death penalty, “the United States now stands alone in a world that has turned its face against” life without parole for juvenile nonhomicide offenders.

Why here and not in the 2008 decision in Kennedy v. Louisiana, which made not so much as a nod to international practice on the way to halting the death penalty as punishment for rape.  I had been telling my students that Louisiana evidenced a retreat in the wake of Roper’s storm, giving in to the rabblerousers across the street.  Do we now have a rule under which international practice is relevant only where the US all by itself?

by Peter Spiro

Arizona’s already notorious anti-immigrant measure, enacted last week and making unauthorized presence in the U.S. a crime under state law, isn’t likely to last long.  But the courts may have nothing to do with its demise.  It’s the economic hit that Arizona is clearly going to take that will bring the state around, I suspect sooner rather than later.  Lost tourism and convention dollars will enlist powerful allies in-state for scaling back or repealing the law.  Opponents seem pretty well mobilized (Linda Greenhouse and San Francisco among them).

The more interesting — and constitutionally salient — source of this economic pressure will come from across the border.  Mexicans are incensed about S.B. 1070, and they seem willing to put their money where their mouths are.  The Mexican government has issued a travel advisory of the sort that will surely scare away casual vacation planners.  About a third of Arizona’s exports are to Mexico, to the tune of almost $5 billion.  One recent study counted almost 25 million annual tourist/shopping visits by Mexicans, generating $3.6 billion in income. That translates into jobs, jobs, jobs (30,000 of them) that will now be hearing a kind of giant sucking sound.  Human-rights sensitive travelers from other countries may well follow suit in boycotting the state.  Not exactly a blueprint for economic recovery.

This could prove the best example yet of targeted retaliation by a foreign country against a U.S. state, which in turn supplies a pretty good reason not to find the measure preempted by federal authority.  The exceptional preemption regime for immigration has been justified by its inherent foreign relations component, back to the Supreme Court’s eloquent 1875 decision in Chy Lung v. Freeman.  As with other activities posing a potential threat to foreign relations, the huge systemic downside risks — to the nation as a whole — of allowing individual states to muck up immigration policymaking justified their near-complete constitutional ouster.

But targeted retaliation cuts that exceptional preemption doctrine off at the knees.  In the old world, Mexico’s response would have been against the United States as a whole.  Today, it can be aimed at the offending jurisdiction, in such a way as to largely eliminate externalities that would otherwise distort state-level decisionmaking.  Arizona will shoulder the consequences of its (very bad) decisionmaking, not the rest of us.  My bet is that it will cave, even if the measure is sustained in the courts, in a way that sticks.

by Peter Spiro

There are an estimated 45,000 US citizens in Haiti, and there’s an assumption that they should be first in line to receive US assistance.  As Hillary Clinton said yesterday, “They are our principal responsibility, to make sure that they’re safe, to evacuate those who need medical care.”  In his remarks this morning, President Obama stressed that “We will not rest until we account for our fellow Americans in harm’s way.”  The State Department has asked journalists in Haiti to get the word out that US citizens who would like to be evacuated should make their way to the airport.

This makes the most sense for US government personnel (and perhaps especially their families).  It also probably makes sense for US citizens who were unlucky enough to find themselves in Port au Prince as tourists when the quake struck.  These are people who may be in some ways at special risk, in alien territory, and their government owes a special responsibility to them.

But the vast majority of the 45,000 are not in either category.  (Another nontrivial category is aid workers who were already in place at the time of the quake, but assuming they are able-bodied, they are right where they want to be.)  Most are Haitian-born naturalized US citizens who had returned to Haiti; children born in the US to Haitian immigrants who returned to Haiti; or born in Haiti to US citizen parents.  In other words, US citizens who make Haiti their home.  (Most probably hold dual citizenship.  Although Haitian law does not recognize dual citizenship, in practice the status is common.)

Should these individuals get priority for US help?  I don’t mean to challenge their entitlement to citizenship.  An estimated 4-5 million Americans live abroad, many permanently, and their right to retain citizenship as nonresidents is water under the bridge.  But as between a healthy US citizen who lives in Haiti (and who wants to get out because it is not a nice place to be now) and an injured non-US citizen who may die if not taken to a hospital ship or Miami or someplace where there are functioning medical facilities, the choice is not so obvious.  Evacuation capacities are finite.  Putting US citizens at the front of the line means putting others at the back.