The purpose of this Note is to identify and analyze the interrelated discourses at work in Gonzales v. Carhart, focusing on the woman-protective discourse, in order to reveal the discourse’s origins, expose its manipulations of Casey’s undue burden test, and identify its strengths and weaknesses. Part I of this Note defines and describes the discourses at work in Gonzales, focusing on the cumulative work these discourses perform together and noting a meaningful series of shifts over time. Part II analyzes the woman-protective discourse in a variety of ways in order to draw out its assumptions, expose its historical predecessors, and outline exactly how it has manipulated the undue burden test. Part III examines ways in which this discourse can be resisted, using more traditional feminist methods, as well as ways in which it can be exploited to destabilize the undue burden test and promote women’s autonomy in non-abortion contexts.
A Forest with No Trees: The Supreme Court and International Law in the 2003 Term
The Supreme Court’s docket in the 2003-2004 term included five cases directly presenting questions of international law. Republic of Austria v. Altmann raised issues of the international law of expropriation and the immunity of foreign sovereigns. Sosa v. Alvarez-Machain concerned a statute authorizing suits to redress “a tort . . . committed in violation of the law of nations.” Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul v. Bush concerned the status of individuals taken prisoner in the war on terror, thereby raising the subject of that best-known of all international agreements, the Geneva Convention.
The thesis of this Article is that, despite the direct relevance of international law to these cases, the Court repeatedly ignored international law and, when faced with no plausible way to ignore international law, took a highly constricted approach to its application. The Article argues that the Court decided three of the five cases—Altmann, Padilla, and Hamdi—without resolving any substantive international legal questions. In Rasul, the Article asserts, the Court ignored the Geneva Convention, although it did take a pragmatic, control-oriented view of what constituted “sovereignty.” Even in Sosa, where the statute’s plain language—giving federal courts jurisdiction over suits for a “tort, committed in violation of the law of nations”—unavoidably required some attention to international law, the Court repeatedly took a constricted reading of the meaning and relevance of international law, both by ignoring the importance of treaties to the statutory scheme (and history) and by repeatedly limiting the scope of the customary “law of nations.” In all five cases, the Court focused on purely procedural issues and on statutory interpretation instead of on international law.
A concluding section of the Article speculates that the Court downplayed international legal issues not for fear of public, legislative, or executive backlash, but rather because the Court simply is more comfortable with traditional methods of statutory and originalist interpretation than it is with the unfamiliar, decentralized world of international law.
Is OSHA Unconstitutional?
Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.