When is a death sentence, a sentence of imprisonment, or a fine so “excessive” or “disproportionate” in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court’s own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court’s answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning of proportionality. The Court’s latest statement on this question, Ewing v. California, is symptomatic of the Court’s confusion. This Article seeks to prepare the ground for a more coherent and potent jurisprudence of proportionality to develop by clarifying the concept of proportionality. First, this Article describes the way in which the Court’s confusion over the meaning of “proportionality” has been the source of the problem by discussing four different ways in which the Court has understood the term. Second, this Article proposes “retributivism as a side constraint” as a conception of proportionality that would bring together the disparate elements of the case law to establish a more coherent and effective constitutional doctrine. Third, this Article specifies the meaning of retributivism as a side constraint, emphasizing the distinction between comparative and noncomparative aspects of retributivism and the significance of the distinction for understanding not only what it means for one to “deserve” a punishment, but also the Supreme Court case law on excessive punishment.
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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.