Amicus Curiae Brief — Brzonkala v. Morrison (Nos. 99-29, 99-5)

Supreme Court, U.§,

DEC (0 yA? cD WI, FILED

Nos. 99-5, ones

a . BFC 1A 4909

In The r CLERK ~

_——~ en: “*

Supreme Court of the United States

+

UNITED STATES OF AMERICA,

Petitioner,

ANTONIO J. MORRISON, et al.,

Respondents,

CHRISTY BRZONKALA,

Petitioner,

ANTONIO J. MORRISON, et al.,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

+

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

¢

LisA KEMLER THEropvore M. Cooperstein*

Of Counsel THEopoRE M. Cooperstein,

NaTIONAL ASSOCIATION Poise

or CRIMINAL DEFENSE 1815 Pennsylvania Avenue,

LAWYERS N.W.

108 N. Alfred Street Suite 501

Alexandria, VA 22314 Washington, D.C. 20006

(703) 684-8000 (202) 331-7895

“Counsel of Record

.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. SECTION 13981 HAS AN OVERBREADTH THAT

DISTURBS THE CONSTITUTIONAL BALANCE

OF STATE AND FEDERAL SYSTEMS OF LAW.

A. States Determine the Common Law of Torts.

B. A General Federal Criminal Code Threatens to

Subsume State Criminal Law.

II. SECTION 13981 IS NOT A NECESSARY NOR

PROPER MEANS OF ENFORCING THE

FOURTEENTH AMENDMENT.

Ill. © INTERNATIONAL LAW DOES NOT COMPEL OR

AUTHORIZE ENACTMENT OF SECTION 13981.

A. “International Law” Does Not Supersede the

Constitution.

B. Congress Cannot Rely on “International Law”

as an Independent Source of Authority.

CONCLUSION

10

15

20

26

TABLE OF AUTHORITIES

Page

CASES

Barcelona Traction Case (Belg. v. Spain),

1970 L.C.J. 3 21

Bray v. Alexandria Women’s Health Center,

506 U.S. 263 (1993) 16

Brown v. United States,

12 U.S. (8 Cranch) 110 (1814) 22

California v. Superior Ct. of Calif., San Bernardino Cty.,

482 U.S. 400 (1987) 9

Daniels v. Williams,

474 U.S. 327 (1986) 4, 8,9, 16

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) 2, 8, 9, 23

Florida Prepaid Postsecondary Educ. Expense Bd. v. College

Savings Bank, 119 S. Ct. 2199 (1999) 17

Foster & Elam v. Neilson,

27 U.S (2 Pet.) 253 (1829) 24

Fujii v. California,

38 Cal. 2d 718, 242 P.2d 617 (1952) 25

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) 5

TABLE OF AUTHORITIES — Continued

Page

Jackman v. Rosenbaum Co.,

260 U.S. 22 (1922) 10

Kamen v. Kemper Fin. Servs., Inc.,

500 U.S. 90 (1991) 4,17

Case of the S.S. Lotus (Fr. v. Turk.).

1927 P.C.L.J. (ser. A) No. 10 20

Marrese v. American Academy of Orthopaedic Surgeons,

470 U.S. 373 (1984) 9

Mavromaittis Palestine Concessions Case (Greece v. Gr. Brit.),

1924 P.C.1.J. (ser. A) No. 2 21

Moose Lodge No. 107 v. Irvis,

407 U.S. 163 (1972) 3,15

Murray v. Schooner Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) 21

National Collegiate Athletic Ass'n v. Tarkanian,

488 U.S. 179 (1988) 4, 16

North Sea Continental Cases (F.R.G. v. Den.),

1969 L.C.J. 3 20

Nottebohm Case (Liech. v. Guat.),

1955 L.CJ. 4 21

The Paquete Habana,

175 U.S. 677 (1900) 21,22

iv v

TABLE OF AUTHORITIES — Continued TABLE OF AUTHORITIES — Continued

Page Page

Parratt v. Taylor, U.S. Const. art. II, § 2, cl. 2 18

451 U.S. 527 (1981) 4, 16

U.S Const. art. II], § 2. 7

Patterson v. New York,

432 U.S. 197 (1977) 13 U.S. Const. art. IV, § 1 4

Reid v. Covert, U.S. Const. art. IV, § 2, cl.2 )

354 U.S. 1 (1957) 4, 18, 19, 23

U.S. Const art. IV, § 4 7

Sun Oil Co. v. Wortman,

486 U.S. 717 (1988) 9, 10, 23 U.S. Const. art. V 19

United States v. Lopez, U.S. Const art. VI, cl. 2 7,18

514 U.S. 549 (1995) 5, 6, 10

U.S. Const. amend. X1 7

United States v. Verdugo-Urquidez,

494 U.S. 259 (1992) 5,18 STATUTES AND RULES

Whitney v. Robertson, 18 U.S.C. § 242 4, 16

124 U.S. 190 (1888) 23

Torture Victims Protection Act, 18 U.S.C. § 2340 25

Williams v. Armroyd,

11 U.S. (7 Cranch) 423 (1813) 23 Rules of Decision Act, 28 U.S.C. § 1652 8

Zinermon v. Burch, 28 U.S.C. §§ 1738-1739 9

494 U.S. 113 (1990) 16

Federal Tort Claims Act, 28 U.S.C. § 2674 8

CONSTITUTION

42 U.S.C. § 1983 4,16

U.S. Const. art. I, § 8, cl. 10 20

Reconstruction Civil Rights Acts,

U.S. Const art. I, § 10 7 42 U.S.C. §§ 1983, 1985, 1986 16

ee

vi

TABLE OF AUTHORITIES — Continued

42 U.S.C.§ 13981(c) 4

42 U.S.C.§ 13981(e) 6, 16

S. Res. of Advice and Consent to Ratification

of the International Covenant on Civil and Political Rights,

138 Cong. Rec. $4781 (1991) (enacted) 23

Kentucky Resolutions, 2d Resolved cl. (1798),

reprinted in The Portable Thomas Jefferson 281

(Merrill Peterson ed. 1979) 12

Supreme Court Rule 24.1(a) 4,17

TREATIES

Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, Dec. 10, 1984,

23 LL.M. 1027 (1984), as modified, 24 1.L.M. 535 (1985),

S. Treaty Doc. 100-20 25

International Covenant on Civil and Political Rights,

Dec. 16, 1966, 999 U.N.T.S. 171, 6 LL.M. 368 19

Vienna Convention on the Law of Treaties, May 23, 1969,

UN Doc. A/CONF. 39/27, Sen. Exec. Doc. L,

92d Cong. 1* Sess. 1971, 8 L.L.M. 679 (1969) 20

OTHER AUTHORITIES

American Bar Association, Criminal Justice Section

Task Force on Federalization of Criminal Law,

The Federalization of Criminal Law (1998) 14, 15

vii

TABLE OF AUTHORITIES —- Continued

Page

William Blackstone, Commentaries 6, 20

The Federalist No. 14 (James Madison) 14

The Federalist No. 17 (Alexander Hamilton) 1]

The Federalist No. 45 (James Madison) 12

The Federalist No. 46 (James Madison) 12

The Federalist No. 51 (James Madison) 12

John Chipman Gray, The Nature and Sources

of the Law (1927) 22

Oliver W. Holmes, Jr., The Common Law (Legal Classics

ed. 1982) (1881) 16

James Kent, Commentaries on American Law (Legal Classics

ed. 1986) (1826) 8,9, 12

Restatement (Third) of Foreign Relations Law of the

United States § 102 comment c (1987) 20

Restatement (Third) of Foreign Relations Law of the

United States § 701, Reporter’s Note at 97 (1987) 23

Restatement (Second) of Torts § 8A (1965) 16

Sara Sun Beale, Federalizing Crime: Assessing the Impact

on the Federal Courts, 543 Annals Am Acad. Pol. & Sci. 39

(1996) 12

viii

TABLE OF AUTHORITIES — Continued

Page

William H. Rehnquist, Address to the American Law Institute,

Remarks and Addresses at the 75 Annual ALI Meeting, May

1998 (1998) 14

INTEREST OF AMICUS CURIAE'

The National Association of Criminal Defense Lawyers

(“NACDL”) is a nonprofit corporation with membership of more

than 10,000 attorneys and 28,000 affiliate members in all fifty

states. The American Bar Association recognizes the NACDL as

an affiliate organization and awards it full representation in its

House of Delegates.

The NACDL was founded in 1958 to promote research in

the field of criminal law, to disseminate and advance knowledge of

the law in the area of criminal practice, and to encourage the

integrity, indenendence, and expertise of defense lawyers in

criminal cases. Among the NACDL’s objectives are to ensure the

proper administration of justice and that criminal statutes are

construed and applied in accordance with the United States

Constitution.

The issue before this Court is the constitutionality of the

Violence Against Women Act (“VAWA”). Although the criminal

provisions of VAWA are not presently before the Court, the

Court’s ruling as to whether Congress acted within its permissible

authority under the Constitution in creating the civil cause of

action codified at 42 U.S.C. § 13981 will have a significant effect

upon the growing trend of federalization of criminal law. The

NACDL accordingly has a significant interest in the outcome of

this case.

The NACDL asks the Court to hold Section 13981

unconstitutional, as it exceeds Congress’s authority and disturbs

the federal relationship between the national and State legal

systems. Amici curiae in favor of the Petitioners have suggested

' The parties have consented to the submission of this brief. Their

letters of consent have been filed with the Clerk of this Court.

Pursuant to Supreme Court Rule 37.6, none of the parties authored

this brief in whole or in part and no one other than amicus, its

members, or counsel contributed money or services to the

preparation or submission of this brief.

2

that international law both mandates and authorizes Congressional

enactment of Section 13981, and this argument, if true, presumably

would also lead to federal criminal laws enacted on the same extra-

constitutional basis. NACDL addresses these arguments as well,

for they no less threaten to disrupt the current systems of criminal

law.

SUMMARY OF ARGUMENT

1. In creating a general tort cause of action in Section

13981, Congress exceeded the bounds of its authority and

disrupted the balance between state and federal systems of law.

The Constitution creates a federal structure that places

responsibility for the creation and development of the general

common law with the State legislatures and courts. Article III

limits the substantive jurisdiction of the federal courts, and the

scope of the matters that Congress may assign to them, primarily to

federal officers and institutions, or core federal functions, while

placing few substantive restrictions on State legislation or

Common Law. With respect to those latter areas, the federal

government is restricted to providing an alternate forum, while

applying the State law as the rule of decision.

The Framers pointed to these features as deliberate

protections against the expansion of the federal government’s

lawmaking power to consume that of the States. The First

Congress, in enacting the Judiciary Act of 1789, directed that all

federal courts were to apply the law of the respective States as the

rule of decision in cases brought before them. This Court in Erie

R.R. Co. v. Tompkins, 304 U.S. 64 (1938), restated that restriction

and emphasized its Constitutional basis: “There is no federal

general common law. Congress has no power to declare

substantive rules of common law applicable in a state whether they

be local in their nature or “general,” be they commercial law or a

part of the law of torts.” id. at 78 (emphasis added). The

Constitution does not permit Congress to enact a general law of

torts or to create private civil causes of action that do not have a

3

clear Constitutional violation element or do not otherwise relate

directly to federal enumerated powers. Rather, the Constitution

sets out a sophisticated scheme of cooperation and innovation

among the respective States to enhance and enforce popular

control of the common law as part of the guarantee of republican

government.

Enactment of Section 13981 threatens the States’

enforcement of criminal law in addition to its intrusion into the

State sphere of common law. The logic sustaining a civil cause of

action such as Section 13981 necessarily opens the door to the

creation of a general federal criminal code that could ultimately

overwhelm and replace the State systems.

Among the more vocal objections to the Constitution at the

time of ratification was the fear of unlimited federal power to

legislate. In response, the Framers contended that the federal

criminal legislative power was restricted to the enumerated crimes

listed in the Constitution, and little else. The Constitution’s

proponents pointed to the broad and general jurisdiction of the

States to legislate and try cases as the principal bulwark in defense

of the common law. For most of the two centuries following, the

greater part of criminal law was created, maintained and enforced

by the respective States.

Despite the growing trend in recent decades for Congress to

federalize more and more crimes, the Constitutional principles

controlling remain the same. Federalization of crime harms the

reputation and effectiveness of State criminal law systems while it

adds to the burdens on, and potential harms resulting from, the

power of the federal government. In a truly federal system, the

Congress cannot unilaterally duplicate the general criminal or tort

laws of the States. If the Congress can, as it has in the case of

VAWA and Section 13981, proclaim the State systems defective

while creating a duplicate legal code, it would only be a matter of

time before the State systems are abolished as redundant.

2. A violation of the Fourteenth Amendment cannot occur

without some significant involvement of a State, a State official, or

one purporting to act under color of State law. Moose Lodge No.

4

107 v. Irvis, 407 U.S. 163 (1972). The United States in its Brief

implicitly concedes this point. All congressional enactments

addressing private actors’ Fourteenth Amendment violations have

limited their reach to acts taken in coordination with or on behalf

of a State, or under color of State law. E.g., 18 U.S.C. § 242; 42

U.S.C. § 1983; see National Collegiate Athletic Ass'n v.

Tarkanian, 488 U.S. 179 (1988).

Although purported to be in enforcement of the Fourteenth

Amendment, Section 13981 makes none of the above distinctions.

Its stated elements for a cause of action replicate those of a general

cause of action sounding in intentional tort. The Section affixes

liability not only to those who act with the State or under color of

State law, but also to anyone else. The only additional element of

the statute is the gender animus motivation requirement, yet

motivation, as opposed to intent, has always been irrelevant to

liability in either common law tort or constitutional torts. This

Court has consistently rejected the notion that the Fourteenth

Amendment creates any general federal tort liability. Daniels v.

Williams, 474 U.S. 327 (1986); Parratt v. Taylor, 451 U.S. 527

(1981). Section 13981 accordingly is not an appropriate exercise

of the Congress’s enforcement powers under the Fourteenth

Amendment.

3. Certain Amici curiae in support of the Petitioners have

suggested in their Brief that both customary international law and

the treaty obligations of the United States authorize, if not

mandate, enactment of Section13981. This argument is not

properly before the Court as one of the questions presented on

certiorari, and should be dismissed. Supreme Ct. Rule 24.1(a);

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 97 n.4 (1991). It

also was not one of the specific grounds cited by Congress as

authority for the statute. If the Court should take up this argument,

it nonetheless fails because the Constitution takes precedence over

general international law and over treaties. Reid v. Covert, 354

U.S. 1 (1957). Nor can Congress find sources of authority in

international law or treaties separate from the Constitution, which

5

is the sole source of authority for Congress and the United States.

United States v. Verdugo-Urquidez, 494 U.S. 259, 270 (1992).

ARGUMENT

Amicus in support of the Respondents agrees with and

supports the arguments of the Respondents with respect to the

substantive scope of the powers that Congress may exercise under

both the Commerce Clause and the Enforcement Clause of the

Fourteenth Amendment. As the Respondents treat this aspect of

the case exhaustively in their Brief, amicus wishes instead to

present to the Court a supplemental argument: The methods chosen

by Congress to implement this power in Section 13981 are

inconsistent and inappropriate within the federal structure created

by the Framers.

I. SECTION 13981 HAS AN OVERBREADTH THAT

DISTURBS THE CONSTITUTIONAL BALANCE OF

STATE AND FEDERAL SYSTEMS OF LAW.

This Court long ago set forth that the Congress’s

Commerce Power “is complete in itself, may be exercised to its

utmost extent, and acknowledges no limitations, other than are

prescribed in the constitution.” Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1, 189-90 (1824) (quoted in United States v. Lopez, 514

U.S. 549, 553 (1995)) (emphasis added); see also Lopez, 514 U.S.

at 568 (Kennedy, J., concurring). In recognition of the Court’s

“authority and responsibility to review congressional attempts to

alter the federal balance,” Lopez, 514 U.S. at 575 (Kennedy, J.,

concurring), the Court must consider Section 13981 within the

context of “the design of the Government and ... the significance of

federalism in the whole structure of the Constitution.” /d.

If one assumes that Section 13981 were within the

substantive scope of the Commerce Clause, that assumption would

“not mitigate [the Court’s] duty to recognize meaningful limits on

6

the commerce power of Congress.” /d. at 580. For just as the

Court has “inferred [the dormant Commerce Clause] from the

constitutional structure as a limitation on the power of the States,”

id. at 579, the Court must similarly read from the construction of

the entire Constitution a restriction on the power of Congress. The

Court “must inquire whether the exercise of national power seeks

to intrude upon an area of traditional state concern.” /d. at 580.

A. States Determine the Common Law of Torts.

Section 13981 creates a cause of action in a victim of

gender-motivated violence against another individual. 42 U.S.C. §

13981(c). The defendant individuals may include those “who act{[]

under color of any statute, ordnance, regulation, custom or usage

of any State,” id., but are not limited to that class. Both State and

federal courts have concurrent jurisdiction over this cause of

action. /d. § 13981(e)(3). The statute restates a general cause of

action sounding in tort for violence, qualified only by the element

that a gender-based motivation propels the act.

The Framers at the time of the Constitutional Convention

knew the variety of civil actions available at common law for

redress of violent torts. See, e.g., 3 William Blackstone,

Commentaries *120-21 (describing forms of action including

trespass vi et armis, assault, insultus, battery, and mayhem, among

others). They were cognizant of the difference between torts

committed among private individuals, and torts suffered at the

hand of the Sovereign. /d. at *116 (for injury by the Crown, “the

remedy in such cases is generally of a peculiar and eccentrical

nature.”). More tellingly, the Common Law even recognized torts

raising gender-specific issues. /d. at *140, *143 (remedies for

violence to spouses).

Against this background, the Framers did not envision the

federal government invoking its legislative or judicial power to the

broad and general extent that Section 13981 does. Article III,

Section 2 of the Constitution delimits the federal “judicial Power”

to encompass actions wherein the parties are specially identified:

5

the United States itself, the States as entities, foreign officials, and

individuals of diverse citizenship’. U.S Const. art. III, § 2.

Additionally, the specified subject matters of the Constitution,

treaties, admiralty and federal laws merit federal jurisdiction. /d.

The Constitution places no similar restrictions upon the

jurisdiction of State courts, other than to require the supremacy of

the “Constitution and the Laws of the United States which shall be

made in pursuance thereof” (including treaties) to State laws as

rules of decision in the State courts.’ /d. art. VI, cl. 2. The

Constitution’s guarantee of republican government may be seen as

further assurance that the States might retain control of the

substantive Common Law for individual wrongs, acting through

their duly elected legislatures. /d. art. IV, § 4.

Absent the presence of core federal questions or federal

officers, the federal judicial power only provides to private

individuals a forum, rather than the governing law of decision, for

their actions. The First Congress, including certain of the Framers,

adhered to this concept in enacting the Judiciary Act of 1789. This

Court, earlier in the present century, has had occasion to reassert

this principle when interpreting and applying Section 34 of the

Judiciary Act of 1789, also known as the Rules of Decision Act.

Except in matters governed by the Federal

Constitution or by acts of Congress, the law to be

applied in any case is the law of the state. And

whether the law of the state shall be declared by its

Legislature or by its highest court in a decision is

not a matter of federal concern. There is no federal

general common law. Congress has no power to

declare substantive rules of common law applicable

in a state whether they be local in their nature or

“general,” be they commercial law or a part of the

? Enactment of the Eleventh Amendment further restricted the

scope of federal judicial power. U.S. Const. amend. XI.

> The Constitution removes certain subjects from the legislative

authority of States. /d. art. 1, § 10.

law of torts. And no clause of the Constitution

purports to confer such a power upon the federal

courts.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (Brandeis, J.)

(emphasis added). Federal courts have since therefore regularly

looked to applicable State law for their rules of decision in cases

raising issues of common law.’ The Rules of Decision Act is

codified at 28 U.S.C. § 1652 (“The laws of the several states,

except where the Constitution or treaties of the United States or

Acts of Congress otherwise require or provide, shall be regarded as

rules of decisions in civil actions in the Courts of the United States,

in cases where they apply.”)°. See also 1 James Kent,

Commentaries on American Law 318 (Legal Classics ed. 1986)

(1826) (“we have not, under our federal government, any common

law, considered as a source of jurisdiction”) (emphasis original).

“It is no reflection on either the breadth of the United States

Constitution or the importance of traditional tort law to say that

they do not address the same concerns.” Daniels v. Williams, 474

U.S. 327, 333 (1986). “Our Constitution deals with the large

concerns of the governors and the governed, but it does not purport

* In reversing nearly one hundred years of interpretation of the

Constitution and the Judiciary Act, this Court in Erie corrected “an

unconstitutional assumption of powers ... which no lapse of time or

respectable array of opinion should make us hesitate to correct.”

304 U.S. at 79. This because “the unconstitutionality of the course

pursued has now been made clear, and compels us to do so.” /d. at

77-78.

* When tort claims arise against federal officers or employees in

the course of their duties, an area wherein the argument for

application of a general federal law might be strongest, Congress

nonetheless has directed that the relevant State tort law shall apply.

Federal Tort Claims Act, 28 U.S.C. § 2674 (United States liable

“in the same manner and to the same extent as a private individual

under like circumstances”).

9

to supplant traditional tort law in laying down rules of conduct to

regulate liability for injuries that attend living together in society.”

Id. at 332.

Additional provisions of the Constitution show primary

reliance on the State judicial systems to enforce the common law

with respect to individuals. Full faith and credit “given in each

State to the public Acts, Records, and judicial proceedings of every

other State” assures that State courts will respect each other’s

process, apply the appropriate State law as a rule of decision

according to choice of law principles, and recognize and enforce

their respective common law judgments. U.S. Const. art. IV, § 1;

see | James Kent, Commentaries on American Law, supra, at 377

(“The state courts are left to infer their own duty from their own

state authority and organization”); cf 28 U.S.C. §§ 1738-1739

(federal courts to give full faith and credit to State “Acts, records,

and judicial proceedings” as would the courts of such State);

Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S.

373, 380 (1984) (O’Connor, J.) (fact that “claim is within the

exclusive jurisdiction of the federal courts does not necessarily

make § 1738 inapplicable.”).

The federal plan also calls upon States to deliver up

fugitives upon request, in furtherance of their respective criminal

jurisdictions. U.S. Const. art. IV, § 2, cl.2; see generally

California v. Superior Ct. of Calif., San Bernardino Cty., 482 U.S.

400 (1987) (O’Connor, J.). But “[s]upervision over either the

legislative or the judicial action of the states is in no case

permissible except as to matters by the constitution specifically

authorized or delegated to the United States.” Erie, 304 U.S. at 78-

79; see Sun Oil Co. v. Wortman, 486 U.S. 717, 749 (1988)

(O’Connor, J., concurring in part) (deviation from full faith and

credit “ignores the language of the Constitution and leaves it

without the capacity to fulfill its purpose”).

All of these constitutional provisions detail a fairly intricate

scheme designed to preserve and enhance the workings of the

separate State judiciaries, individually and in cooperation, as the

primary means for the enforcement and derivation of the common

10

law of torts. This system has operated without hindrance for the

life of the Constitution, even as the Reconstruction Amendments

otherwise altered the state-federal relationship. See Sun Oil Co. v.

Wortman, 717 U.S. at 730 (“If a thing has been practised for two

hundred years by common consent, it will need a strong case for

the Fourteenth Amendment to affect it.”) (quoting Jackman v.

Rosenbaum Co., 260 U.S. 22, 31 (1922)). The retention by the

States of primary responsibility for the day to day redress of

wrongs at common law between individuals spares the federal

government a great burden and frees it to focus on matters

peculiarly national or otherwise integral to its enumerated powers.

Conversely, it retains to the people of the several States the

safeguard of greater control of an important aspect of their daily

lives: their interaction with governmental enforcement powers.

Section 13981 contravenes these constitutional principles, as it is

an “interference [that] contradicts the federal balance the Framers

designed and that this Court is obliged to enforce.” Lopez, 514

U.S. at 583 (Kennedy, J., concurring).

B. A General Federal Criminal Code Threatens to

Subsume State Criminal Law.

Congress’s enactment of legislation such as Section 13981

also threatens State criminal law regimes. For if the federal

government may broadly declare the State legal systems to be so

biased or flawed as to be broken, and it therefore may bypass the

State courts with new federal civil causes of action, there is

nothing in this logic to stop the Congress from enacting a general

federal criminal code to take over day to day law enforcement

from the States. This threat cannot be reconciled with a federal

constitution.

This danger was one raised by antifederalist critics of the

Constitution, and was expressly disavowed by the Framers. In

response to the objection that federal legislative power “would

tend to render the government of the union too powerful, and to

enable it to absorb in itself those residuary authorities, which it

i ae

might be judged proper to leave with the states for local purposes,”

Alexander Hamilton wrote:

There is one transcendent advantage

belonging to the province of the state governments

which alone suffices to place the matter in a clear

and satisfactory light — 1 mean the ordinary

administration of criminal and civil justice. This of

all others is the most powerful, most universal and

most attractive source of popular obedience and

attachment. It is this, which — being the immediate

and visible guardian of life and property — having

its benefits and its terrors in constant activity before

the public eye — regulating all those personal

interests and familiar concerns to which the

sensibility of individuals is more immediately

awake — contributes more than any other

circumstance to impressing upon the minds of the

people affection, esteem and reverence towards the

government. This great cement of society which

will diffuse itself almost wholly through the

channels of the particular governments, independent

of all other causes of influence, would ensure them

so decided an empire over their respective citizens,

as to render them at all times a complete

counterpoise and not infrequently dangerous rivals

to the power of the union.

The Federalist No. 17 (Alexander Hamilton) at 102, 104 (New

York 1788) (Legal Classics ed. 1983).

This theme and assurance continued throughout the

arguments in favor of ratification of the Constitution.

The powers delegated by the proposed constitution

to the federal government, are few and defined.

Those which are to remain in the state governments

are numerous and indefinite. The former will be

exercised principally on external objects, as war,

12

powers reserved to the several states will extend to

all the objects, which, in the ordinary course of

affairs, concern the lives, liberties, and properties of

the people; and the internal order, improvement and

prosperity of the state.

The Federalist, supra, No. 45 (James Madison) at 82. In

maintaining that the “federal and state governments are in fact but

different agents and trustees of the people, instituted with different

powers and designed for different purposes,” Madison averred that

the prevention of overlap or redundancy in the federal design

precludes the event that the national or State government “will be

able to enlarge its sphere of jurisdiction at the expence of the

other.” The Federalist, supra, No. 46 (James Madison) at 84.

In the compound republic of America, the power

surrendered by the people, is first divided between

two distinct governments, and then the portion

allotted to each, subdivided among distinct and

separate departments. Hence a double security

arises to the rights of the people. The different

governments will control each other; at the same

time that each will be controlled by itself.

The Federalist, supra, No. 51 (James Madison) at 119-120.

In the early years of the Republic, no less an authority than

Thomas Jefferson, in authoring the 1798 Kentucky Resolutions

protesting the federal Alien and Sedition Acts, adverted to this

very threat and how it was to be avoided:

[T]he Constitution of the United States, having

delegated to Congress the power to punish treason,

counterfeiting the securities and current coin of the

United States, piracies, and felonies committed on

the high seas, and offences against the law of

nations, and no other crimes whatsoever; and it

being true as a general principle, and one of the

amendments to the Constitution having also

declared, that “the powers not delegated to the

United States by the Constitution, nor prohibited by

13

it to the States, are reserved to the States

respectively, or to the people,” therefore ... all their

other acts which assume to create, define, and

punish crimes, other than those so enumerated in

the Constitution, are altogether void, and of no

force; and that the power to create, define and

punish such other crimes is reserved, and, of right,

appertains solely and exclusively to the respective

States, each within its own territory.

Kentucky Resolutions, 2d Resolved cl. (1798), reprinted in The

Portable Thomas Jefferson 281, 282 (Merrill Peterson ed. 1979).

For long after the ratification of the Constitution, States

defined and prosecuted nearly all criminal conduct. Federal law

limited itself to “injury to or interference with the federal

government itself or its programs. .... Except in those areas where

federal jurisdiction was exclusive (the District of Columbia and the

federal territories) federal law did not reach crimes against

individuals. Crimes against individuals ... were the exclusive

concern of the states.” Sara Sun Beale, Federalizing Crime:

Assessing the Impact on the Federal Courts, 543 Annals Am Acad.

Pol. & Sci. 39, 40 (1996). See 1 James Kent, Commentaries on

American Law, supra, at 319 (“neither the constitution, nor the

judicial acts founded upon it gave the federal courts a general

jurisdiction in criminal cases”).

Only in the late Nineteenth and the Twentieth Centuries did

Congress begin to assert federal criminal jurisdiction over areas

previously left to the States, and not without controversy. The

growth in the federal fiscal ability by reason of both the modern

American economy and the imposition of national income taxation

has overwhelmingly reversed the relative balance between State

and federal capabilities to address crime. And the nationalization

of public opinion through modern communications media has

given the federal government greater incentive and impetus to

exercise its capability.

Yet the constitutional principle remains unchanged, that

“preventing and dealing with crime is much more the business of

14

the States than it is of the Federal Government.” Patterson v. New

York, 432 U.S. 197, 201 (1977). There is an “historical American

principle that the general police power lies with the states and not

with the federal government, although there clearly is an

appropriate sphere for federal criminal legislation.” American Bar

Association, Criminal Justice Section Task Force on Federalization

of Criminal Law, The Federalization of Criminal Law 25 (1998)

[hereinafter ABA Report]. See also The Federalist No. 14 (James

Madison), supra, at 82 -83 (“it is to be remembered, that the

general government is not to be charged with the whole power of

making and administering laws. Its jurisdiction is limited to

certain enumerated objects .... The subordinate governments ...

will retain their due authority and activity.”).

The threat remains in the present day trend to federalize

growing areas of the criminal law. See generally William H.

Rehnquist, Address to the American Law Institute, Remarks and

Addresses at the 75" Annual ALI Meeting, May 1998, at 15-19

(1998); ABA Report 5-24. More than 40% of the federal criminal

laws enacted since the Civil War have been enacted since 1970.

ABA Report at 7. The 105" Congress alone considered

approximately 1000 bills dealing with criminal statutes. /d. at 11

& n.15, App. C.

Federalization of criminal law harms our constitutional

system even as it fails to live up to its promise of redressing crime.

It diminishes the stature of the State courts in the eyes of their

citizens. It “bestows new federal investigative power on federal

agencies, broadening their power to intrude into individual lives.”

ABA Report at 27 (“Expanding, unreviewed federal power, when

no strong case can be made for its existence, is contrary to the

American wisdom against concentrating policing power in any one

governmental entity.”). Dual criminal systems can lead to

disparate results for the same conduct, turning solely upon the

forum in which the defendant may be tried. An increase in the

volume and caseload of federal criminal cases reduces the separate

and distinctive role of the federal courts, in addition to the obvious

burden on their resources. See ABA Report 26-43.

15

“The principles of federalism and practical realities provide

no justification for the duplication inherent in two criminal justice

systems if they perform basically the same function in the same

kind of cases.” ABA Report at 55. VAWA, and Section 13981 in

particular as it now comes before the Court, present a clear view of

the path down which they inexorably lead. For if it makes no

practical sense to have two duplicative systems of justice, and

Congress explicitly premises the duplication, as VAWA is

premised, on the bias and ineffectiveness of the State systems, then

logic will sooner rather than later dictate the inevitable result:

Congress will take it upon itself to legislate general crimes such as

rape and spousal abuse, and replace the State courts.

The prior existence of the available State Common Law

remedies, and their guarantee to the States by the Constitution,

together suggest that the remedy devised by Congress in Section

13981 is accordingly neither necessary nor proper to the

enforcement of the stated concerns in VAWA.

II. SECTION 13981 IS NOT A NECESSARY NOR

PROPER MEANS OF ENFORCING THE

FOURTEENTH AMENDMENT.

If there is a violation of the Fourteenth Amendment to be

redressed by Congress, the Congress must logically direct its

corrective towards those who commit the violation. Contrary to

the Petitioner United States, see U.S. Brief at 47, a Fourteenth

Amendment violation cannot occur without the involvement,

however indirect, of a State or one acting under color of State law.

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). The United

States implicitly concedes this point throughout its argument. £.g.,

U.S. Brief at 38 (“Congress may ... ascertain ... whether and how

often ... government action entails the indiscriminate imposition of

inequalities”), 41 (“state action based on inaccurate stereotypes;”

“state actors’ failure to treat domestic violence as seriously as

other violence;” “record documenting the States’ failure to

16

respond”), 42 (“discrimination by state officials and state

employees”) (emphases added).

When Congress has acted under the Enforcement Clause

of the Fourteenth Amendment to reach private actors, it has still

been limited to those private actors acting in coordination with, or

on behalf of, a State, or under color of State law. E.g., 18 U.S.C. §

242; 42 U.S.C. § 1983; see National Collegiate Athletic Ass'n v.

Tarkanian, 488 U.S. 179, 192 (1988) (“the question is whether the

state was sufficiently involved to treat that decisive conduct as

state action”); see also Bray v. Alexandria Women's Health

Center, 506 U.S. 263 (1993); Zinermon v. Burch, 494 U.S. 113

(1990).

Section 13981 makes no such distinctions. Although the

Section does reach those persons acting under color of State law, it

does not stop there. The stated elements of a cause of action under

the Section contain no requirement of State action or color of State

law. 42 U.S.C.§ 13981(e). The stated elements comprise those

elements already held to state causes of action in the Common Law

for torts or criminal acts. See, e.g., Restatement (Second) of Torts

§ 8A (1965). The only contribution of Section 13981 is the gender

animus element, which is decidedly irrelevant to both Common

Law and constitutional liability. Oliver W. Holmes, Jr., The

Common Law 54 (1881) (“the intent necessarily accompanying the

act ends there.”); Daniels v. Williams, 474 U.S. at 329-30

(restating ruling of Parratt v. Taylor, 451 U.S. 527, 534-35 (1981),

that Section 1983 “contains no state of mind requirement

independent of that necessary to state a violation of the underlying

constitutional right.”).

Those State actors who do violate the Fourteenth

Amendment already face liability under the existing provisions of

the Reconstruction Civil Rights Acts, 42 U.S.C. §§ 1983, 1985,

1986. All other potential defendants under Section 13981 face a

general tort liability, without a basis in the Fourteenth Amendment.

This Court has “reject[ed] the contention that the Due Process

Clause embraces such a tort law concept.” Daniels v. Williams,

474 U.S. at 335-36. No reason exists for the Fourteenth

ee ee Ogee

17

Amendment’s Equal Protection Clause to differ in this respect.

Section 13981 accordingly duplicates existing remedies against

State actors, while fabricating constitutional liability against actors

who are by definition incapable of committing the constitutional

wrong. A member of neither group is a necessary or proper

defendant.

Il, INTERNATIONAL LAW DOES NOT COMPEL OR

AUTHORIZE ENACTMENT OF SECTION 13981.

Amici curiae “International Law Scholars and Human

Rights Experts” (hereinafter Amici), in their Brief supporting the

Petitioners, state a novel yet incorrect view of the mandates of

customary international law upon the United States. Their

assertion, that customary international law and international

treaties empower and authorize the Congress to enact Section

13981, fundamentally misapprehends the relationship between the

United States Constitution and international law.

As a threshold matter, the question of international law’s

relation to VAWA and Section 13981 was not an issue on which

this Court granted certiorari, and should therefore be dismissed.

Supreme Ct. Rule 24.1(a) (“the brief may not raise additional

questions or change the substance of the questions”); Kamen v.

Kemper Fin. Servs., Inc., 500 U.S. 90, 97 n.4 (1991) (Court does

not ordinarily address issues raised only by amicus curiae).

Secondly, the VAWA statute does not directly refer to any

international law or treaties, as Congress explicitly detailed its

purported grounds in the Constitution yet omitted to mention any

other sources of authority. Florida Prepaid Postsecondary Educ.

Expense Bd. v. College Savings Bank, 119 S. Ct. 2199, 2208 n.7

(1999) (“Since Congress was so explicit about invoking its

authority under Article I and ... under the Fourteenth Amendment,

we think this omission precludes consideration of” other unstated

grounds).

A. “International Law” Does Not Supersede the

Constitution.

The only source of power and authority for the federal

government is the People of the United States, acting through the

Constitution. United States v. Verdugo-Urquidez, 494 U.S. 259,

270 (1992) (“The United States is entirely a creature of the

Constitution. Its power and authority have no other source.”’)

(quoting Reid v. Covert, 354 U.S. 1, 5-6 (1957)); 494 U.S. at 277

(Kennedy, J., concurring) (“the Government may act only as the

Constitution authorizes, whether the actions in question are foreign

or domestic”). The federal government, and the Congress

specifically, can only act in accordance with the enumerated

powers or prohibitions chosen by the People, acting through the

original Constitutional Convention or subsequent amendment

according to the Constitution’s terms.

Within the provisions of the Constitution, the federal

government is given what has been called the “Treaty Power.”

The President is authorized to negotiate and enter into treaties.

U.S. Const. art. II, § 2, cl. 2. Those treaties do not take effect

unless and until the Senate shall grant its advice and consent by a

two-thirds vote. Jd. The Senate may, in consenting to a treaty,

condition its advice and consent on reservations, which are specific

interpretative comments qualifying the effect of the treaty or its

provisions as to the United States.

This Senatorial procedure is a peculiarity of the United

States Constitution, with which other countries sometimes have

difficulty. While their unitary governments consider a treaty

effectively ratified upon their accession to the treaty, the United

States cannot be so bound until the Senate shall have done its part.

Once ratified and in effect, any treaty to which the United

States is a party has the effect of federal law. U.S. Const. art. VI,

cl. 2. But like any federal statute, it has no priority or precedence

over the Constitution itself. The President and the Senate may no

more alter the provisions of the Constitution by a treaty, than the

Congress in both houses may alter the Constitution by regular

19

federal legislation. The sole manner for amendment of the

Constitution lies in the procedures set forth in Article V. U.S.

Const. art. V.

The “Treaty Power” therefore refers only to the power of

the federal government to negotiate and enter into treaties that

should govern the affairs of the United States as a sovereign actor

among nations. It does not confer upon the government an extra-

constitutional source or method of deriving federal authority at

home. Contra Brief of Amici at 29 (“it is impermissible to read the

commerce Clause to invalidate and Act of Congress that advances

our treaty and customary international commitments.”). Neither the

President nor the Congress can agree, by means of a treaty, to do

anything that the Constitution forbids.

[N]o agreement with a foreign nation can confer

power on the Congress, or on any other branch of

Government, which is free from the restraints of the

Constitution. .... The prohibitions of the

Constitution were designed to apply to all branches

of the National Government and they cannot be

nullified by the Executive or the Executive and the

Senate combined.

Reid v. Covert, 354 U.S. 1, 16-17 (1957).

Against these background principles, the arguments of the

Amici that customary international law in general, and the

International Convention on Civil and Political Rights® (“ICCPR”)

in particular, mandate and authorize Section 13981 are simply not

true.

° International Covenant on Civil and Political Rights, Dec. 16,

1966, 999 U.N.T.S. 171, 6 LL.M. 368.

20

B. Congress Cannot Rely on “International Law” as an

Independent Source of Authority.

1. Customary international law, or the “Law of Nations” as

the Framers termed it, U.S. Const. art. I, § 8, cl. 10, is a very

narrow and limited body of principles universally accepted as so

fundamental as to be the irreducible minimum of acceptable

humane conduct. The Law of Nations acted then and today acts

upon international states as entities, rather than individuals. 4

William Blackstone, Commentaries *68 (“offences against the law

of nations can rarely be the object of the criminal law of any

particular state. For offences to this law are principally incident to

whole states or nations”’).

Customary international law applies to the conduct of

nations only when a custom or rule among nations has become so

widespread and accepted that it is not only commonly taken as law

among nations, but it is in fact obeyed by nations out of a sense of

legal obligation (opinio juris.)’ The instances of customary

international law are rare, and the burden is upon the party

asserting that a rule is one of customary international law to prove

that it has attained that status.*

Much of customary international law has been codified in

various modern treaties and conventions.’ Throughout most of

history, customary international law dealt primarily with relations

’ North Sea Continental Cases (F.R.G. v. Den.), 1969 L.C.J. 3;

Restatement 3d Foreign Relations § 102 comment c.

8 Case of the S.S. Lotus (Fr. v. Turk.), 1927 P.C.LJ. (ser. A) No.

10.

° E.g., Vienna Convention on the Law of Treaties, May 23, 1969,

UN Doc. A/CONF. 39/27, Sen. Exec. Doc. L, 92d Cong. 1“ Sess.

1971, 8 I.L.M. 679 (1969). Although Amici fail to mention it,

Amici Brief at 4 n.2, the United States has not ratified the Vienna

Convention, which accordingly is not U.S. law, even though it is

the international standard most often cited.

21

between States and their governments, and had very little focus on

individuals or their relationships to foreign governments. The few

exceptions centered on universal peremptory norms against

individual conduct considered to offend all civilized nations (jus

cogens), such as piracy or slavery. The governing consideration

for one government’s actions towards the citizens or nationals of

another State was (and to a large part remains) the ability and

likelihood of that alien’s State of nationality to exercise its

diplomatic protection on his behalf. '°

Customary international law, when determined by a court

to exist, can provide the rule of decision in a case otherwise

properly before that court. It is a special type of federal common

law, subject to the precedence of the Constitution and federal

statute. When, in the absence of contrary provision in the

Constitution or federal law, there is a rule of customary

international law applicable, federal courts will apply that rule of

customary international law. The Paquete Habana, 175 U.S. 677,

700 (1900) (“where there is no treaty and no controlling executive

or legislative act or judicial decision, resort must be had to the

customs and usages of civilized nations”).

While a court should try to avoid reading a statute in

conflict with accepted international law, the deference is not

absolute, and it assuredly does not apply to the Constitution itself

or its mandates. The continuing precedent of Murray v. Schooner

Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) (Marshall, C.J.), is

better read in full quotation of the relevant passage:

It has also been observed that an act of Congress

ought never to be construed to violate the law of

nations if any other possible construction remains,

and, consequently, can never be construed to violate

'0 Cf Nottebohm Case (Liech. v. Guat.), 1955 LC.J. 4

(admissibility to international forum of claim on behalf of

individual national); Barcelona Traction Case (Belg. v. Spain),

1970 I.C.J. 3 (same); Mavromattis Palestine Concessions Case

(Greece v. Gr. Brit.), 1924 P.C.I.J. (ser. A) No. 2 (same).

22

neutral rights, or to affect neutral commerce, further

than is warranted by the law of nations as

understood in this country.

6 U.S. at 64 (emphasis added). Contra Amici Brief at 28. Chief

Justice Marshall chose therefore not to apply a federal law,

criminalizing the sale of American-built ships for use in war,

against an American-born defendant who claimed Danish

citizenship while the United States held him still to be an

American citizen. The Chief Justice thereby avoided international

law questions of the rights of neutral citizens as affected by the

attempted application of U.S. law to forfeit his ownership of the

vessel. The case never raised the question of supremacy of the

Constitution over federal statute or international law. Contra

Amici Brief at 28.

Customary international law does not of itself compel nor

empower Congress to act outside of the Constitution. With respect

to other nations, as a coequal sovereign among nations the United

States faces penalties of reputation rather than compulsion (short

of war) if it fails to accede to other nations’ views. Brown v.

United States, 12 U.S. (8 Cranch) 110, 128 (1814) (Marshall, C.J.)

(International “usage is a guide which the sovereign follows or

abandons at his will. The rule, like other precepts of morality, of

humanity, and even wisdom, is addressed to the judgment of the

sovereign.”). International law “cannot be disregarded by [the

sovereign] without obloquy, yet it may be disregarded. ... It is not

an immutable rule of law, but depends on political considerations

which may continually vary.” 175 U.S. at 715 (Fuller, C.J.,

dissenting) (quoting Brown v. United States, 12 U.S. at 128). See

John Chipman Gray, The Nature and Sources of the Law 131

(1927) (“The sanction which makes them operative as between

nations is not a physical sanction; it is the sanction arising form the

opinion of civilized nations that the rules are right, and that

civilized nations are morally bound to obey them”).

Congress has the power, but does not have any

constitutional obligation, to enact laws governing offenses against

the Law of Nations. Absent a Congressional statute specifically

23

doing so, the Court need not reach out to decide such questions.

See Williams v. Armroyd, \1 U.S. (7 Cranch) 423 (1813)

(Marshall, C.J.) (Despite Congressional resolution decrying French

admiralty court’s seizure of American vessel as violative of Law of

Nations, rule of comity left the Court powerless to look beyond the

French court’s decree without specific Act of Congress telling it to

do so).

Nor can customary international law force a court to rule

contrary to the dictates of the Constitution. “International law” is

not a supranational source of law, nor does it exude any supremacy

over United States law akin to the Constitution and federal law’s

supremacy over the law of the respective States. Cf Erie, 304 U.S.

at 79 (noting “fallacy”” in “the assumption that there is a

‘transcendental body of law outside of any particular State but

obligatory within it’”). In modern years, the growing tendency has

been for scholars to grossly overuse the term “customary

international law” to cloak the policy preferences of academics

with a presumed authority they otherwise do not merit £.g.,

Restatement (Third) of Foreign Relations Law of the United States

§ 701, Reporter’s Note at 7 (1987) (cited in Amici Brief at 28); cf

Sun Oil Co. v. Wortman, 486 U.S. at 728-29 (“long established and

still subsisting choice-of-law practices that come to be thought, by

modern scholars, unwise, do not thereby become

unconstitutional.”’).

While courts do regularly seek to avoid conflict between

their rulings and the instances they can find of truly customary

international law, the restriction, if any, of international custom lies

only upon their interpretation of the statute, and not in their

interpretation of the Constitution.

2. Treaties similarly cannot trump the Constitution. A

treaty has the status of any ordinary federal statute. It must be duly

enacted and comply with the Constitution. Reid v. Covert, 354

U.S. 1 (1957). Where there is conflict between a treaty and

another treaty or federal statute, the ordinary rules of statutory

interpretation apply. These rules include the general disfavoring of

repeals by implication, the precedence of the specific over the

24

general, and the priority of the later enacted statute, among others.

See Whitney v. Robertson, 124 U.S. 190 (1888).

Amici neglect to tell the Court, that in its advice and

consent to the ICCPR, the Senate enacted certain reservations to

the treaty, which have the full force and effect of law. Most

relevant for present purposes is the proviso that “Nothing in this

covenant requires or authorizes legislation, or other action, by the

United States of America prohibited by the Constitution of the

United States as interpreted by the United States.” S. Res. of

Advice and Consent to Ratification of the International Covenant

on Civil and Political Rights, art. [V, 138 Cong. Rec. $4781 (1991)

(enacted).

Furthermore, the Senate resolution made clear that the

ICCPR was not self-executing. /d. art. III (1) (“the United States

declares that the provisions of Articles | through 27 of the

Covenant are not self-executing.”). The principles declared by

Chief Justice Marshall still prevail in this area:

A treaty is in its nature a contract between

two nations, not a legislative act. It does not

generally effect, of itself, the object to be

accomplished, especially so far as its operation is

infra-territorial; but it is carried into execution by

the sovereign power of the respective parties to the

instrument.

.... [When the terms of the stipulation import a

contract, when either of the parties engages to

perform a particular act, the treaty addresses itself

to the political, not the judicial department; and the

legislature must execute the contract before it can

become a rule for the Court.

Foster & Elam v. Neilson, 27 U.S (2 Pet.) 253, 314 (1829)

(Marshall, C.J.). Congress has not to date enacted legislation

declared to be in furtherance and implementation of the ICCPR.

The ICCPR therefore has no legal effect upon individuals

in the United States without a constitutionally enacted federal law

specifically implementing the Covenant and its terms. Until such

25

time, it retains only the aspirational ideal of a nonbinding

resolution. See Fujii v. California, 38 Cal. 2d 718, 724, 242 P.2d

617, 621-22 (1952) (United Nations Charter and the Universal

Declaration of Human Rights have no compulsory effect in United

States law without implementing legislation).'' The ICCPR

accordingly provides no basis for the Congressional enactment of

VAWA or Section 13981.

'' Amici cite to the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,

23 LL.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985), S.

Treaty Doc. 100-20, as an alternate basis of authorization for

VAWA. Amici Brief at 13,24. The Torture Victims Protection

Act, 18 U.S.C. § 2340, already exists as the specifically designated

implementing legislation for that Convention, thereby precluding

the assignment of that role to VAWA. To hold otherwise would

mean that VAWA implicitly repealed 18 U.S.C. § 2340, which

Amici presumably do not intend.

26

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

LISA KEMLER THEODORE M. COOPERSTEIN*

Of Counsel THEODORE M. COOPERSTEIN, P.C.

NATIONAL ASSOCIATION 1815 Pennsylvania Avenue, N.W.

OF CRIMINAL DEFENSE Suite 501

LAWYERS Washington, D.C. 20006

108 N. Alfred Street (202) 331-7895

Alexandria, VA 22314

(703) 684-8000

*Counsel of Record

December 10, 1999