Marvel Civil War II: Deadlines and Due Process

This is the second in our series on Marvel’s Civil War event. We started with some framing issues, namely that there are problems with the way the series treats the law in general. Now we’re going to look at some of the specifics about how the stories implement the law as a plot point.

I. The Deadline

For the first few months of the event, much of the drama centered on what would happen at the stroke of midnight when the Superhuman Registration Act (“SHRA”) went into effect. Civil War #2 actually shows a screen in what is probably Times Square announcing “Registration Act Becomes Law” at midnight on that day. The gist is that it seems that Congress passed the bill and the President signed it into law, and the text of the bill said that it was slated to go into effect at some point in the future. Is that really how laws work?

Sort of. Yes, it’s entirely possible for a law to incorporate a delay in its effectiveness. The 2010 health care reform law contains numerous provisions which will not go into effect for years, and even the ones that are currently operative did not generally become so the instant the bill was signed. There are dates, specified in the bill, when certain provisions go into effect. This is actually pretty common, as at the very least, Congress tends to like at least some lead time to permit the Library of Congress to update the United States Code before the new code sections are to be effective. Having bills become effective as soon as they’re signed can be useful, but where time is not of the essence, picking a date in the near future tends to make the logistics of the process run a bit more smoothly.

So yes, if Congress were to pass a version of the SHRA, there would be a deadline beyond which superhumans would be required to register, and something big would likely go down on that day. But the deadline for registration would probably not be the date the law became effective. Why? Because before the law becomes effective, there is no way for anyone to register. The law which creates the need for registration also creates the process for registration, so before the law is effective, a superhuman who wanted to register would have no way of doing so. This is actually inadvertently hinted at in the way registration is portrayed in the stories. We never see superhumans headed down what amounts to the superhuman DMV. Instead, they’re all approached, in person, either individually or in small groups, by agents of S.H.I.E.L.D., asking them to sign the paperwork. Where that paperwork came from is never really addressed—Who wrote it? When? If it was before the bill became law, under whose authority?—but it’s all a pretty ad hoc process. We’ll talk about the constitutional problems with this in a minute, but that aside, even if Congress were silly enough to pass a the SHRA, it’s highly doubtful that they’d require each and every superhuman to be served with papers personally. The DMV may suck, but it does basically work, and there’s no reason to think that Congress wouldn’t create an analogous agency (or empower an existing one) to take care of this.

Still, though the portrayal is rather inconsistent and not without its problems, with two relatively minor tweaks the writers could still create a situation where the country was holding its breath as the clock ticks towards midnight on Registration Day. First, the law would go into effect without much fanfare, and it would authorize a federal agency to promulgate the rules and develop the process whereby superhumans could register. The agency would probably have a fixed—and short!—amount of time to do this. Second, the law would specify another date after the agency deadline, probably 30, 60, or 90 days, by which all superhumans would be required to register. It would be that date, not the date the bill became law or first went into legal effect, which would be the focus of the drama. And it would be that date, not the date when Tony Stark shows up at your door with a bunch of papers for you to sign, beyond which an unregistered superhero would be in violation of the law. That’s just how these things work.

II. Due Process

The reason they work that was isn’t just logistical. There’s also a very good constitutional reason for having things work this way: The Fifth Amendment right to due process.

Due process is basically the constitutional doctrine that no one can be punished or have their legal rights adversely affected without there being some kind of procedure. For example, if the government wants to imprison someone for committing a crime, there must be a trial, the defendant must have the option of a jury trial, the defendant must have access to competent counsel, and the prosecution must prove its case beyond a reasonable doubt—among other things. Similarly, in the civil context, no one can have a judgment enforced against them unless they were properly served, i.e. notified of the lawsuit.

So if the SHRA were to work the way it seems to in the comics rather than in the way outlined above (which, you will note, still lets the story proceed largely intact), a superhuman arrested for failure to register would have a number of arguments that this violated his constitutional right to due process.

First, there’s the fact that the law requires superhumans to register by a certain date without actually giving them any opportunity to do so. There do not appear to be any logistical structures in place to permit registration before the stroke of midnight when the bill became law, so arresting people ten seconds later is just unfair. Any hero who wasn’t served with papers could plausibly argue that he’d love to register if only someone would tell him how.

Second, there’s the timing issue. Cars must be registered, but most states give you a week if not a full thirty days to register a car after you buy it. Why? Because the DMV isn’t always open, because people have jobs, and because there’s just no good reason to insist that it happen right away. So when the cape-killers come to knock down his door at five seconds past midnight, why can’t a hero just say, “Gentlemen, my wife is sleeping, my kids are sleeping, and until you so rudely awakened me, I was sleeping. Can this not wait until morning?” Really, there doesn’t seem to be any reason why not. Heck, why not just make the deadline noon instead of midnight? But even that wouldn’t really solve the problem. People, even superhumans, have lives, things to do, obligations, responsibilities, the whole nine yards. If the government’s going to come along and add another thing to that neverending list, the least it can do is give people a chance to work it into their schedule. Complete failure to do that would almost certainly constitute a due process violation. Again, even if this were done right, there’s still plenty of drama to be had here. It would only have taken a panel or two to show that a month had gone by since the act become law, and that any superhuman who was going to register had his chance to do so. On with the cape-killers and the fighting and the angst.

III. Conclusion

Ultimately, this issue is kind of a toss-up. The writers got it wrong, but they did so in the name of drama, and as it turns out, a few relatively minor tweaks to the way the law was conceived would have permitted most of that drama. But what’s disappointing is that if they had adopted those tweaks, the pro-reg side would have seemed a lot more reasonable. Luke Cage wouldn’t have been able to make his rather overwrought comparison to race lynchings in the 1960s if instead of Iron Man and a squad of cape-killers, he had gotten a registration packet in the mail and a month to think about it. If he defies the law then, he looks less like someone who just wants to get a good night’s sleep without having his home invaded by federal troops and more like someone who really is taking a principled but morally ambiguous stance. And when Stark does show up, he’d be able to take the position that Cage had plenty of opportunity to trundle on down to the local registration office (or file a lawsuit opposing the law!), that he’d had every chance to do this like a civilized adult, but was now choosing the hard way. As the event seems to have wanted to explore those issues, getting the law wrong leaves the story more than a bit lop-sided.

21 responses to “Marvel Civil War II: Deadlines and Due Process

  1. After reading this, I have to say: I want to read a version of “Civil War” that fits into your world. I want to read the courtroom drama between Luke Cage and the State. I admit, that’s not the usual superhero fare, not even in She-Hulk’s books. But no one can deny that courtroom dramas can be tense. There’s no reason why a superhero drama set in a courtroom can’t increase that tension to tights-and-underwear levels. Imagine if some superpowered cataclysm is coming, and the defendant has to choose between letting the legitimate authorities (in the form of the Avengers or some other state-sponsored super-team) handle it, or busting out of the courtroom to settle things themselves. In the meantime, the court has to wrestle with the meaty issue: do people have to register their very selves with the state? If I’m a fairly good computer programmer that could turn to hacking, should the state be expected to keep me on record? What about an expert marksman? What about Tony Stark- he’s not a super-human! And so on.

    I didn’t finish “Civil War”, in a large part because the whole event was painted with too broad a brush, the entire thing rang too false, and everything about it tried too hard to be equivocal in its handling without actually dealing with any of the complex issues raised by the story.

    • David Schley

      I think that would be the most fascinating retcon in comic book history, can you imagine Justice Scalia (kingpin) and Justice Ginsburg (vulture) having it out supreme court style for like 13 panels… it would be a friggin sweet one-shot comic that would explain away any loose ends involved with pro-regs working with anti-regs, its all unconstitutional.
      Personally, I thought the same about the series merely reading the bound marvel civil war book they released, far to broad way to many gaps. I have since gone back and read “all” of the individual books in semi-sequential order. I must say reading the whole series rather than the truncated version makes for a much more complete and generally enjoyable read. They even get into some sovereignty issues with storm and her citizenship. It was all kinda cool.

  2. That’s one thing that I have always wondered, could any one of the Pro-Reg Superheroes sue in the hopes of getting an injunction on the grounds that the whole law is unconstitutional? I’m getting my thought process from the California Gay Marriage law suits and legal struggles. Does this mean that Steve Rogers and Luke Cage and a ton of other humans and superhumans could sue and if nothing else delay the procedure?

    I did like the drama of Civil War but it seemed to me like SHIELD and Stark were painted to negatively. The US looked like a totalitarian police state. For me a much better approach would be to show each side making their own well thought out arguments and letting the reader decide what to think.

    • Ryan Davidson

      There’s no reason to think they couldn’t. It would probably have taken the form of a civil liberties group like the ACLU bringing a case on behalf of anonymous plaintiffs.

      Again, one of the reasons Stark and S.H.I.E.L.D wind up looking so bad is the very fact that the writers and editors never really nailed down what the SHRA is supposed to do, and wound up acting as if it were the most draconian version of the bill possible. Getting the legal details right would have avoided a lot of that.

  3. >>>We never see superhumans headed down what amounts to the superhuman DMV. Instead, they’re all approached, in person, either individually or in small groups, by agents of S.H.I.E.L.D., asking them to sign the paperwork.

    Actually the superheroes not approached by S.H.I.E.L.D. did register in exactly this way as portrayed in the Howard the Duck story “Non-Human-Americans.”


    “Synopsis for “Non-Human-Americans”Edit
    With the Super-Human Registration Act in full effect, Beverly Switzler talks Howard the Duck into registering themselves (with Bev as his sidekick) so that they can take advantage of the benefits of signing up (like a steady pay check and benefits.) Initially ligning up at the DMV in error, they get into the Super-Human Registration line up, however when trying to sign up, a local SHIELD Agent recognizes Howard as the human duck that has been reported time and time again.”

    Another interesting thing was Howard’s legal status following his attempt at registration… in that he had no legal status following his attempt at registration.
    From the site listed above :
    “Howard looks on the bright side, since he doesn’t exist in the eyes of the government, at least he doesn’t have to worry about traffic tickets, have no worries about jury duty, doesn’t have to file his taxes, heck he doesn’t even have to vote if he doesn’t want to. “

    • Ken Arromdee

      Actually the superheroes not approached by S.H.I.E.L.D. did register in exactly this way as portrayed in the Howard the Duck story “Non-Human-Americans.”

      That gets back to the problem that the writers didn’t know what the act actually consisted of, so each writer did their own thing. You have time to register in the Howard story, you don’t have time to register in some of the others.

      And wouldn’t not existing in the eyes of the government really mean he’d be treated like an illegal alien? And whether he is or not, surely a nonexistent person can’t, for instance, own property or rent an apartment.

      • Ryan Davidson

        It may also be that Howard had time to register because the government isn’t convinced that he exists, so no one came after him on the day the law went into effect.

  4. I suspect that part of the problem was that the writers didn’t like the registration idea. Either that, or when they tried to write both sides as reasonable they didn’t realize how disturbing they made the registration side.

    • Ryan Davidson

      The biases of the writers are pretty clear. But their apparent inability to write a balanced story may have something to do with the fact that they create a legal framework where the pro-reg side could look like anything but fascists.

  5. Martin Phipps

    Forgive my ignorance, but isn’t the SHRA equivalent to drafting superhumans? When the U.S. initiated the draft for the Vietnam War, did people have thirty days to sign up? This would have given people time to legally leave the country and set up residence in Canada. Are people breaking the law if they leave the country within the thirty day period and take up residence in another country? It seems to me that -even if they were- Canada would not be obliged to extradite people who had broken no Canadian laws.

    • Ryan Davidson

      Is the SHRA a draft? Sorta… depending on who’s writing. Sometimes it’s referred to as that, sometimes not.

      Registration for the draft was–and is!–mandatory. Men must register with the Selective Service System within 30 days of their eighteenth birthday, so yes, there is a thirty day period involved.

      But setting up residence in Canada does not exempt one from the draft. It was called “draft dodging” for a reason. And the fact that a person has not broken any laws in a given country has no bearing on that country’s duty or lack thereof to extradite that person to a friendly country for breaking the latter’s laws. Canada decided not to extradite them, but extradition has always been more of a diplomatic issue than a legal one. Extradition “obligations” are treaty based, and as such involve a certain amount of discretion. The US wasn’t about to go to war with Canada for violating its treaty obligations, nor was it likely to impose stiff economic sanctions, and as far as I can tell basically chose to look the other way. But it prosecuted draft dodgers when they returned to the country.

      • Martin Phipps

        What about refugee status? I know, for example, that Canada will not extradite a criminal if the criminal might face the death penalty, including Americans. In cases like this public opinion trumps international treaty. Certainly if Americans facing the draft during the Vietnam war had filed for refugee status then it would have been accepted because they were fleeing a situation which would have had them forcibly sent overseas and likely killed. By contrast, 268 Americans sought refugee status in 2003 to avoid getting sent to Iraq but not a single claim was accepted because every single one of them had volunteered to join the military and had only decided to desert when they realized they could be sent to Iraq.

      • David Johnston

        It wasn’t a violation of Canada’s treaty obligations. Only people who are accused of committing what would be a crime in Canada can be extradited, and Canada didn’t have a conscription law at that time.

  6. Martin Phipps

    Men must register with the Selective Service System within 30 days of their eighteenth birthday, so yes, there is a thirty day period involved.

    Interesting. So would it be constitutional for the SHRA to be applied to superheroes who are also minors? I may have the power to move objects with my mind or create a mountain of ice out of moisture from the air but until I turn 18 wouldn’t forcing me to effectively become an agent of SHIELD violate child labour laws? (Yes I do realize I’ve effectively asked the same question in two different contexts.)

  7. Are you sure people didn’t have a chance to register before the date? I remember a scene with Happy Hogan telling him they only had umpteen heroes registered as Tony counted down time until the due date

    • Ryan Davidson

      To the extent that there was an opportunity it seems to have been created by S.H.I.E.L.D. agents going around and serving people personally. Someone who didn’t get served that way could plausibly argue they had no opportunity to register.

  8. I’m afraid the entire premise of this article is off base. I got the distinct impression that it was definitely possible to register before the Act goes into effect; otherwise there would have had to be a pack of cape-killers going after Iron Man, Mr. Fantastic and so forth.
    And obviously Luke Cage and the rest of the capes knew about the registration requirement and had a way to comply; that’s why each had a decision to make. If there were no way to register before the deadline, there would have been at least one line saying, “Hey, doofus, it’s midnight – do you have a registration office open?”

  9. Note to Martin Phipps: The current real-world Canadian government is…more ambivalent these days about helping avert death penalty infliction upon either Canadians abroad or citizens of any nation – including ours – whose extradition to face such penalties has been sought in the last five years. With the current government led by Stephen Harper’s Conservatives now firmly in place for the next four years, such ambivalence on that subject might be expected to continue for at least that long.

  10. Perhaps the people writing the law were simply incompetent? (see the recent SOPA fiasco for example)

    I didn’t follow the comics at the time and haven’t managed to catch up yet; was there any indication perhaps the lack of a registration period before it went into full effect happened to imprison or otherwise punish the superhumans which at least some of the lawmakers had strong feelings against was intentional, or if it’s confirmed, any hints it would at least be in character for the legislators to act that way?

  11. “Perhaps the people writing the law were simply incompetent? (see the recent SOPA fiasco for example)”
    As others have commented, the problem is that the SHRA was so poorly defined in the comics that it’s hard to tell what it actually was. Depending on which comic you were reading (and who was writing it) I saw at least three basic versions: (Note – all references to superhumans also include non-government tech-based heroes using their tech).

    1) Superhumans using their powers as superheroes. In this vesion, if you want to be a costume crime fighter, or save the world from Thanos, you have to register. But only then. So Peter Parker has to register if he wants to stop Goblin from robbing banks, but not if he wants to use his powers to get into great positions to take photos. What about reasonable defense of self or others. Parker definitely gets in trouble if he goes hunting Goblin, but if Goblin attacks a bank he happens to be in and he intervenes with his fists (as some might do) is he a superhero or just a civilian who is capable of standing up to Goblin?
    2) Superhumans using their powers. In this version, any use of powers requires registration. Meaning Parker can’t wall-crawl into the ideal place for that shot of the Macy’s Parade. Of course, this opens up a new can of worms. It’s unclear if there’s a good Samaritan exception. Parker definitely gets in trouble if he goes hunting Goblin, but if he’s walking by a construction site and uses his powers to catch a falling worker, is that a violation? (IE, is he treated as a hero or a Samaritan)? What about “always on” powers? Wonderman can’t make his skin any less hard, so if a mugger shoots him or a car hits him, is Wonderman in violation because he isn’t injured?
    3) Anyone with powers has to register. In this version, SHRA is basically the same as the MRA. If you have a power you have to register. Use (or lack thereof) does not matter.

    Added to this confusion, the creators of the idea thought (believe it or not) that the PRO-registration side would be more popular, so there was some attempt to weaken their side of the argument. Therefore, given that most fans and (more importantly) the writers of most books were Anti-registration, the heroes on the pro-side come across very poorly.

    And this is a shame. While I’m not saying registration is the way to go, there were some valid points to the pro-registration argument that could be made. Unfortunately a poorly designed story got in the way.

  12. One thing this article doesn’t mention is that Luke Cage decided to hang up the costume and quit doing superhero work. Since the Cliffnotes version of the law said you only had to register if you wanted to be a superhero, he figured he was just going to stay out of it.

    Then a goon squad busted down his door the moment the law went into effect, and basically told him that he was going to work with them or else.

    One thing that never seems to get mentioned when people talk about Marvel’s Civil War is that the U.S. government seems to regularly breaking its own laws while saying they’re “enforcing” the law, something I’ve noticed is relatively common in the Marvel Universe. See Maria Hill (who is the head of S.H.I.E.L.D. and doesn’t actually answer to the U.S. government) trying to detain Captain America for refusing to help them round up superheroes before the law went into effect, both of which are flagrantly illegal actions.

    In short, the U.S. government seems to operate under the premise of “It’s not illegal when we do it!”, which you could says interesting things about how rule of law is faring on Earth-616.

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