Monday, August 08, 2005

Wang v. Masaitis (9th Cir. - July 27, 2005)

Hmmm. I honestly don't know about this one, one way or the other. Everyone on the panel agrees that Michael Wang gets extradited to Hong Kong. So, at some level, who cares. But there's a big constitutional disagreement about how properly to reach that result. How the court should respond to Wang's argument that the extradition treaty between Hong Kong and the United States isn't a constitutional "treaty" because Hong Kong isn't a sovereign entity (since it's just a fancy administrative unit of China at this point) with which a "treaty" could constitutionally be made.

The majority -- Judges Hawkins and Noonan -- reject this claim on the merits. But Judge Ferguson dissents, arguing that this is a nonjusticiable question. What counts as a "sovereign", he argues, is up to the political branches, not the courts.

Both sides make reasonable claims. There seems to me that there has to be some enforcible limit regarding what counts as a sovereign with which the United States can make a treaty, particularly since treaties are on a par with the Constitution as the "supreme law of the United States". For example, assuredly the Senate and President couldn't get around the House by making a "treaty" with The Sovereign State of Shaun Martin to do X. And I wouldn't be particularly surprised at all if we elected to have the judiciary -- rather than an often distorted political process -- to be the one that would and should decide what counts as a legitimate treaty and what doesn't.

But admittedly, most "treaties" are in fact much more legitimate. And for a typical "treaty", I don't know that we gain much by having the judiciary perform the task rather than the political process. So I think that Judge Ferguson's view would probably be perfectly fine -- and potentially beneficial -- 95% of the time. But the other five percent has me a bit worried. Which is the advantage of Judge Hawkins' view.

A tough call.