Supreme Court rulings’ impact on international norms
On issues ranging from immigration policy to the rights of children to anti-corruption efforts, a number of rulings issued yesterday by the Supreme Court impact directly on the state of U.S. compliance with international norms. In some cases, the rulings could bring the United States closer to meeting international commitments, while others could push the U.S. even further out of compliance with those obligations.
Receiving perhaps the most attention was the decision striking down certain provisions of Arizona’s draconian anti-immigrant law, S.B. 1070. Although the Court upheld the law’s “show me your papers” provision, which requires anyone suspected of being “illegal” to produce documentation proving their U.S. residency status, the Court barred Arizona from enforcing three other controversial provisions of the law.
As veteran legal analyst Lyle Denniston explains the ruling, it “was a strong victory for the notion that immigration policy, under the Constitution and federal laws, is for the federal government, not for the individual states, including those on the borders most affected by illegal entry.”
The Court made clear that states are prohibited from adopting provisions that seek to establish a state-level program requiring undocumented immigrants to sign in officially as non-citizens and are barred from setting up policies that would lead to deportation of undocumented immigrants, unless the federal government explicitly asks for such help.
According to Denniston’s analysis, the decision essentially reaffirmed that the national government is the “single sovereign” in charge of “a comprehensive and unified system to keep track of aliens within the nation’s borders.”
By establishing the prerogative of the federal government in regulating immigration and prohibiting states from taking an ad hoc approach to immigration laws, the Court’s ruling could help rein in abusive practices on the state and local levels that in some cases place the United States in violation of international commitments.
As a recent report issued by Amnesty International documented, inadequate oversight of state and local law enforcement has led to increased racial profiling in Arizona and other border states. State laws and local policies are erecting barriers to immigrants accessing education and essential health care services. “While these laws are targeting non-citizens, these policies are also impacting U.S. citizen children,” Amnesty notes.
With extensive documentation of the routine human rights violations of people of color in the American Southwest, Amnesty’s report calls on all immigration enforcement programs to be suspended pending further review, and insists that the federal government takes steps “to ensure that state legislation does not impinge on its responsibility for immigration enforcement.”
“While it is generally accepted that countries have the right to regulate the entry and stay of non-nationals in their territory, they can only do so within the limits of their human rights obligations,” reads the Amnesty report. “The US government has an obligation under international human rights law to ensure that its laws, policies and practices do not place immigrants at an increased risk of human rights abuses.”
The relevant legal framework cited by Amnesty International includes the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, all of which the U.S. has ratified.
By reaffirming that the federal government is solely responsible for immigration enforcement, the Supreme Court’s decision could go a long way to ensure that the treatment of migrants in the U.S. complies with international treaties to which the U.S. has subscribed.
Another major decision that came down yesterday deals with the rights of children, specifically the practice of jailing minors for life, a common practice in the United States, but grossly out of step with international norms. As stated by the UN Convention on the Rights of the Child, a treaty spelling out the basic human rights of children everywhere:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
These concepts are considered so uncontroversial around the world that the Convention on the Rights of the Child became the most quickly and widely ratified human rights treaty ever. “More countries have ratified the Convention than any other human rights treaty in history—192 countries had become State Parties to the Convention as of November 2005,” UNICEF points out.
Only two countries, Somalia and the United States, have not ratified this popular accord. Somalia has not ratified the Convention because it has no recognized government. The U.S. has failed to do so for reasons that can only be speculated, but its utter failure to respect the treaty’s provisions, such as the requirement that children be treated differently than adults in the criminal justice system, may be the primary cause.
While sidestepping the subject of international norms, yesterday’s 5-4 Supreme Court decision on youth life sentences held that the Eighth Amendment prohibits a sentencing scheme that requires life in prison without the possibility of parole for juvenile homicide offenders.
The decision, as Denniston explains it, “continues the trend that started a quarter-century ago of demanding that criminal punishment for children generally must be different — and less harsh — than for adults.”
The premise behind that trend is that children are not adults and have the capacity to change. As this is also one of the main rationales behind the UN Convention on the Rights of the Child, the fact that the U.S. is moving towards compliance with widely recognized international norms on this subject is an encouraging sign.
In a less encouraging sign, however, the Supreme Court yesterday struck down a 100-year-old Montana law that banned direct corporate political campaign spending in state and local elections. In a 5-4 decision, the Court reversed a lower court decision, ruling that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
Critics, however, note that all available evidence points to the contrary. The Court’s decision will only strengthen the role of corporate money while weakening the ability of lawmakers and citizens trying to fight corruption in electoral politics, according to fair election and anti-corruption advocates.
“The 2012 elections make one thing clear: unlimited spending by super PACs and secretive nonprofits is corrupting our political process and threatens to swamp our democracy,” said Adam Skaggs, senior counsel in the Brennan Center’s Democracy Program.
“Increasing numbers of Americans believe our government is bought and paid for by special interests and that their votes don’t matter. By not taking this case, the Court missed a critical opportunity to rein in some of the worst excesses of Citizens United, and other rulings, that created this super PAC mess.”
Yesterday’s ruling places the United States further out of step with the UN Convention against Corruption, of which the U.S. is a state party. The Convention calls for measures to be taken to ensure transparency, curb corruption and prevent conflicts of interest among public officials:
Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.
Each State Party shall endeavour to establish and promote effective practices aimed at the prevention of corruption.
Dealing specifically with the issue of funding political campaigns, the Convention requires state parties to “consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.”
The issue of transparency is at the heart of the debate on reversing the Supreme Court’s 2010 Citizens United v. Federal Election Commission, which opened the floodgates for unregulated money to pour into elections. Under federal law, political action committees must report the names of their donors and super PACs do regularly disclose corporate contributors.
But as the Washington Post points out, “transparency can be a bit blurry at times.”
In 2011, the Mitt Romney-linked Restore our Future super PAC reported a $1 million contribution from “W Spann LLC.” Never heard of it? Neither had several enterprising reporters, who learned that its address in New York was the same as that of Bain Capital — Romney’s former firm. After the press demanded to know what Romney was hiding, a former Bain executive came forward to say that the donation was his. He had given it through a shell corporation that his lawyer had created for that purpose.
An exhaustive investigative report by journalist Andy Kroll in the current issue of Mother Jones magazine provides an in-depth historical analysis of the role of money in politics and the efforts of American reformers over the years to curb its corrupting influence.
Tracing the modern era of campaign finance reform to the brazen abuses exposed in the Watergate scandal, Kroll points out that for many political observers, the recent flood of anonymous cash into the electoral process “feels like a return to the pre-Watergate years.”
“Rich bankrollers,” writes Kroll, “cut jaw-dropping checks backing their favorite candidates. Political operatives devise ways to hide tens of millions in campaign donations. And protesters have taken to the streets over what they see as a broken system.”
Kroll quotes political scientist Norman Ornstein of the conservative American Enterprise Institute: “We’re back to the Nixon era, the era of undisclosed money, of big cash amounts and huge interests that are small in number dominating American politics.”
The corrupting influence of unregulated money in U.S. elections has become a concern to the international community, with even the International Monetary Fund noting the disastrous implications that it has for public policy.
In a 2009 report exploring the causes of the 2008 financial collapse, the IMF noted that “two of the largest mortgage lenders in the nation, spent respectively $20.5 million and $8.7 million in political donations, campaign contributions, and lobbying activities from 2002 through 2006.”
The lending companies achieved their desired outcome for these financial contributions – the loosening of anti-predatory lending regulations. The IMF noted that “anecdotal evidence suggests that the political influence of the financial industry contributed to the 2007 mortgage crisis, which, in the fall of 2008, generalized in the worst bout of financial instability since the Great Depression.”
International election observers have also pointed to the U.S. campaign finance system as a cause of concern. The vast spending in 2010 and the widespread use of negative advertising led the OSCE’s U.S. election observation mission that year to describe a “dirty campaign environment” with “money playing a significant role in creating an uneven playing field between candidates.”
“Upwards of four billion dollars were spent on the campaigns, making it the most expensive mid-term election in the United States to date,” OSCE observers noted. “About three-quarters of that money was spent on political campaign ads on television and radio. The ads inundated the airwaves, made huge profits for many television and radio stations, and also turned off many voters.”
In the wake of the Supreme Court’s 2010 Citizens United decision, which was essentially upheld yesterday, experts project spending on the 2012 election cycle could top a staggering $11 billion – more than twice the 2008 total and nearly three times the amount spent on the 2010 midterm elections.
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