Stephen I. Vladeck

  • July 18, 2016
    Guest Post

    by Stephen I. Vladeck, Professor, University of Texas School of Law 

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    None of the capsule summaries of the Supreme Court’s most recent Term will likely include the Justices’ June 9 ruling in Puerto Rico v. Sanchez Valle—in which a 6-2 majority held that Puerto Rico and the federal government are not separate sovereigns for purposes of the Fifth Amendment’s Double Jeopardy Clause, and so they cannot each prosecute the same person for the same criminal offense. Nor will even the most comprehensive assessments likely so much as mention the Court’s denial of certiorari, four days later, in Tuaua v. United States—in which the D.C. Circuit had held that individuals born in American Samoa are not entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment. But at the end of a Term with bigger headlines, and which may come to be seen more generally as the beginning of a new era, the reasoning in Sanchez Valle and the denial of certiorari in Tuaua highlight the Justices’ continuing unwillingness to revisit one of the more troubling chapters in the Court’s history—the early-twentieth century decisions known as the Insular Cases.

    The Insular Cases refer to dozens of rulings (there’s disagreement as to exactly how many) handed down by the Supreme Court in the first decades of the twentieth century concerning the applicability (or lack thereof) of different constitutional provisions to those residing in the United States’ nascent “insular” possessions—territories such as Puerto Rico, the Philippines and even Panama (never mind that it’s not an island).

    Although the Insular Cases cannot easily be summarized, the basic framework they articulated was to distinguish between how the Constitution applied in “incorporated” territories (i.e., territories “destined for statehood”) versus “unincorporated” territories—and to only apply the entire Constitution to the former. Whether specific provisions applied in the “unincorporated” territories turned on case-by-case assessments of whether the constitutional provision at issue was sufficiently “fundamental”—although, to be clear, the answer was usually “no.” Thus, constitutional protections ranging from the right to uniform import and export prices to the right to a jury trial in criminal cases were held inapplicable to many—if not most—of the United States’ new possessions, five of which (American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico and the U.S. Virgin Islands) continue to fly an American flag to this day.

  • November 1, 2011
    Guest Post

    By Stephen I. Vladeck, a law professor and associate dean for scholarship at American University Washington College of Law.


    Typically, when Congress buries critical substantive policy initiatives in massive spending bills, the question is whether anyone — the media, in particular — will take heed. But with regard to the detainee provisions nestled into a subtitle of the Senate Armed Services Committee’s version of the National Defense Authorization Act (NDAA), garnering public attention has surprisingly not been the issue. Instead, thanks to a very public series of disagreements between Senate Majority Leader Harry Reid and Senators Carl Levin and John McCain (respectively the Chair and Ranking Member of the Committee), the jig is up on keeping these provisions under the radar — as manifested, to take two of many examples, in editorials in this Sunday’s Washington Post and last Sunday’s New York Times.

    There’s a lot going on in the NDAA, but the provisions animating much of the current debate would do three separate things:

    1. Define with at least some specificity the scope of the government’s power to detain terrorism suspects without trial;

    2. Mandate the military detention of certain non-citizen terrorism suspects (and thereby bar their prosecution in civilian federal courts); and

    3. Make permanent what have thus far been temporary spending restrictions barring the President from using certain funds to transfer detainees from Guantánamo to the United States for continuing long-term detention.

    A lot of the opprobrium directed at the NDAA — including in Sunday’s Post editorial — has been focused on the latter two provisions, and for good reason. In this post, though, I want to explain why the first provision is no less (and perhaps even more) significant, and why the Post’s endorsement thereof is so alarmingly short-sighted.

  • September 7, 2010
    Guest Post

    By Stephen I. Vladeck, Professor of Law, American University Washington College of Law.

    More than two years after the Supreme Court held, in Boumediene v. Bush, that non-citizens detained at Guantánamo Bay are entitled to pursue habeas corpus relief in the D.C. federal courts, the ensuing litigation stands at something of a methodological impasse. On one hand, the judges of the D.C. district court have issued decisions on the merits in over 50 cases, fashioning a series of procedures, evidentiary rules, and substantive standards based on the text of the rather-ambiguous September 2001 Authorization for the Use of Military Force (AUMF). Applying this body of judge-made law, the various judges of the district court have granted habeas relief to the detainees roughly 75 percent of the time - a statistic that is only the more remarkable when you consider that those who are still left at Guantánamo are supposed to be the "worst of the worst," in contrast to the almost 600 individuals released by the U.S. government long before Boumediene.

    On the other hand, the U.S. Court of Appeals for the D.C. Circuit has (1) reversed several of those grants; (2) suggested in several opinions that the district courts have erred far too often in favor of the detainees; (3) ruled that detainees who can no longer be detained can also not be released into the United States (reversing the district court's conclusion to the contrary); and (4) held that detainees do not have a right to notice and a hearing before being transferred to a third-party country, whether or not the detainee fears torture or other forms of mistreatment once transferred there (again, despite the district court's conclusion to the contrary). Indeed, among the dozen or so D.C. Circuit decisions in Guantánamo cases since Boumediene, there has only been one case in which the Court of Appeals thought that the district court wrongly ruled against a detainee on the merits - and even there, it only remanded for further evidence. [In a forthcoming essay, I explain why these decisions are out-of-step both with Boumediene and with a proper understanding of the habeas remedy that the Constitution's Suspension Clause necessarily protects.]

    In the Guantánamo detainee cases, then, the past two years have witnessed two of the nation's most respected courts, looking at the same facts and legal issues in the same cases, and seeing them completely differently.

    The latest chapter was written by the D.C. Circuit last Tuesday, when it refused to go en banc to rehear the original three-judge panel decision in Al-Bihani v. Obama. What's telling about this development isn't the fact that the Court of Appeals left the panel decision intact, but how it chose to do so. Each of the seven active judges not on the original panel signed a short, joint statement, emphasizing that "We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel's discussion of that question is not necessary to the disposition of the merits."