Ultimate Comics X-Men #1, Part 1

The recently released / relaunched Ultimate Comics: X-Men is set in a world in which humans and mutants are basically at open war with each other.  This alternate universe raises some interesting legal questions about government tort liability, civil rights, and the limits of government power.  We’ll be talking about each of these in a series of posts.  Spoilers ahead!

Before we get into the details, we’ll note that it’s pretty apparent that there is no hope for a legal challenge to the government’s actions in Ultimate Comics: X-Men.  The relationship between humans and mutants is too far gone for that at this point.  Nonetheless, since there’s no mention of a constitutional amendment, it’s interesting to consider whether the government’s actions are legitimate or just accepted.

One of the major revelations in the book is a different origin for mutants.  Rather than being the next step in evolution, mutants were the result of U.S. government research in a lab in Canada.  The result was Wolverine, and after his escape the mutation spread “not unlike a virus,” suggesting that the mutation is not a simple hereditary gene.  In any case, this raises a question: could anyone affected by the mutation sue the government?

As a general rule, an injured party can’t sue the U.S. government unless it waives sovereign immunity.  The Federal Tort Claims Act is the primary mechanism for this, and it has been invoked in a prior human experimentation case.  After the Tuskegee syphilis experiment came to light, injured parties sued the U.S. government and several states alleging, among other things, that the U.S. government was liable under the FTCA.  Pollard v. U.S., 384 F.Supp. 304 (M.D.Ala. 1974).  After the plaintiff’s case survived summary judgment, the government settled.

Although not legally binding, the 1996 Final Report of the Advisory Committee on Human Radiation Experiments also recommended financial compensation for human research subjects going back fifty years (or their surviving immediate family members) for whom the experiments provided no prospect of direct medical benefit.  However, as of yet the U.S. government has not compensated the victims of the recently disclosed Guatemala syphilis experiment, so the current status of the policy is open to question.

Note that the timing of the mutant experimentation is likely not a problem.  “[A]n action under the FTCA accrues when the injured party knew or, in the exercise of reasonable diligence, should have known the factual basis for the cause of action.”  Rakes v. U.S., 442 F.3d 7, 19 (1st Cir. 2006).  While it’s probably too late for Wolverine himself (notwithstanding that he’s already dead in this continuity), since he presumably knew who was experimenting on him, most mutants had no idea that their condition was the result of government wrongdoing.  In fact, the government had apparently contributed to the belief that the mutations were natural, and until recently the truth was classified.  Since reasonable diligence wouldn’t have turned up the classified information, the injured parties couldn’t have known the factual basis for their causes of action.  As a result, the two year statute of limitations on federal tort claims started when the truth came out.  28 U.S.C. § 2401(b).

The bottom line here is that if human/mutant relations weren’t in complete tatters, mutants would have a pretty good case against the U.S. government.

5 responses to “Ultimate Comics X-Men #1, Part 1

  1. Well there is the saying ‘in times of war the law falls mute’. Considering what more than a few mutants are capable of it wouldn’t be out of the question for recognized* rights to be curtailed.

    *In RL that is.

  2. I hope you don’t mind me asking an unrelated legal question here.

    Anyway, I was wondering what happens when somebody impersonates the President of the United States, say for example in the movie Dave or at the end of G.I. Joe: the Rise of Cobra or, for that matter, if Sylar had become the President of the U.S. on the Heroes series by impersonating Nathan. Obviously they’ve committed a crime and would not be able to continue serving as president and the real president, if still alive, would return or, if he were no longer alive, the vice president would take his place. But what about legislation that the fake president signed into law? If the deception had gone on for years then rescinding all that legislation and having the real president (or vice president) consider what legislation to sign into law and what to veto would take time. How would this work if something like this were to actually happen in the real world? (You know, the real world with shape shifters who could impersonate presidents.)

    • I mean, for instance, what if someone were tried and convicted under a law that an imposter president signed into law? That would be a real mess, wouldn’t it? Or would we take the point of view “that was the law at the time and the fact that the president was an imposter does not change that fact” and it is only future cases that would be affected as all the legislation signed into law by the fake president would have to now be reconsidered by a duly elected president (I would think).

    • “But what about legislation that the fake president signed into law?”

      That’s a tricky one. There have been several cases dealing with improperly passed laws, but as far as I can tell they all alleged that the error was on the side of the legislature (e.g. the House and Senate passing two different versions of a bill then sending an unreconciled bill to the President).

      Standing would be a big issue, but it’s possible that the real President could have standing so long as there was no question who the real President was at the time. It’s not clear who the real President would sue, though. Alternatively the President could simply refuse to enforce the improperly enacted laws.

      If the courts didn’t want to deal with the mess, then they could fall back on the fact that a bill becomes law if the President sits on it for 10 days (Sundays excepted), just as if he or she had signed it. Arguably, just because the real President was unavailable at the time does not mean the laws weren’t duly enacted.

  3. How does this work with mutants who are not from the US (Not a resident/citizen/whatever). Say a native Canadian who has got infected with the mutant virus. Would they stand any chance in court?

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