Separation of Powers?

Justice Scalia yesterday again voiced his opposition to citing foreign law in court opinions, but then he admonished recent efforts by congress to pass a law forbidding it. From this article on law.com: "I don't think it's any of your business," Scalia said before a lunch meeting of the National Italian American Foundation that included many members of Congress of Italian descent. "I'll be darned if I think it's up to Congress to tell us how to rule."

The article then notes that congressman Feeney from Florida introduced a resolution expressing opposition to the practice and suggesting that judges who violate it should be impeached. And last year congressman Shelby introduced a law that would outright forbid federal judges from relying on "any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States."

You see, stare decisis means to congressman Shelby that a 400 year dead English King knows better how this country's laws should apply than any non-American democracy or republic.

Both congressmen suggested that by citing foreign law (note the term cite is different than the term rely) violates the supremacy clause of the Constitution. I'm not sure I agree with their conclusion. As I've mentioned before, Texas court cases cite Oklahoma, Iowa, Delaware, even (gasp!) California law and cases in their cases where there is little or nothing in Texas law to find a decision, and, so long as the laws are similar, it's rational to use their conclusions to help reach Texas conclusions. I see no appreciable difference between the two situations.

I also find it ironic that Congress would try to rectify the perceived violation of the Supremacy Clause on the part of "activist judges" by passing a law pursuant to the Constitution, which is subject to the supremacy clause. It seems the approach to the perceived problem is like trying to get a kid who won't brush his teeth to brush his teeth by buying a new toothbrush. It doesn't fix the perceived problem.

Congressman Feeney noted that the president can veto a law (check the rules, President Bush, you really can!) and the Court can overrule a law, but the only way Congress can express their displeasure is through a resolution. I don't know if maybe Congressman Feeney didn't take any kind of Constitutional Law class, but from what I remember, the Supreme Court is pretty much bound to the laws passed by Congress, unless those laws are not passed pursuant to the Constitution. To not mention this allows the implication that the courts are running rampant, just striking down laws as they see fit. I won't be so naive as to believe that doesn't happen, but there is a large structure in the court system and I would think that for the overwhelming majority of the time the right conclusion comes out, whether Congress likes it or not.