Batman: No Man’s Land, Part 5

And now we finally come to the main event in the No Man’s Land arc: the evacuation and quarantine of Gotham City.

The comic books do not clearly define the process by which Gotham was evacuated and quarantined, but we know three things for certain.  First, Congress refused to grant Gotham additional federal aid (this much is certainly within Congressional authority).  Second, the President issued an executive order, invoking “some half-forgotten loophole about national security,” which is apparently what actually set the evacuation and quarantine in motion.  Third, Congress then enacted a law that made Gotham no longer part of the United States.  It’s these second and third issues that we’ll be taking a look at.

I. The Limits of Executive Orders

An executive order is a formal declaration by the President, which can be made pursuant to one of two sources of authority.  First, the authority can be an inherent constitutional power, such as the power to pardon.  Second, the authority can be derived from a statute (i.e. a grant of power to the executive branch by the legislature).  If an executive order is unconstitutional or otherwise invalid, those adversely affected by it can challenge the order.  See, e.g., Reid v. Covert, 354 U.S. 1 (1957).

So given that Congress acted after the executive order was given, what source of power could the President possibly use to justify the order to evacuate and quarantine Gotham?  One possibility is the Insurrection Act, which makes particular sense given that we know that the military was called in to keep order, and it was the military that eventually demolished the bridges connecting Gotham to the mainland and also mined the river and harbor.

Typically, invoking the Insurrection Act requires a request from the governor or state legislature, but we can reasonably assume that the governor of whatever state Gotham is in did so.  This could arguably give the President the power to “order the insurgents to disperse” to someplace other than Gotham.  Ordinarily the insurgents must be ordered to “retire peaceably to their abodes within a limited time,” but it’s conceivable that the whole of Gotham was seized by eminent domain, so the insurgents’ “abodes” would no longer be in Gotham.

Invoking eminent domain would require compensating the property owners, but since the earthquake and fire drastically reduced the value of the property, the compensation would likely be significantly less than the cost of rebuilding.

So while it would make more sense for Congress to act first, it’s not inconceivable that the President’s actions could be more-or-less justified under existing law.

II. Giving Up Territory

Here’s where we come to the sticky part.  There’s no explicit constitutional provision for acquiring new territory, much less giving it up.  This fact has been something of an elephant in the room ever since the Louisiana Purchase.  Thomas Jefferson wanted to amend the Constitution to spell out the process for acquiring new territory, but the deal was pushed through without it.  Various ad hoc and ex post justifications for acquiring new territory have since been invented, typically resting on the treaty power.  The treaty power is also the mechanism by which territory can be given up (or “alienated”), which is something the United States has done several times in the 20th century.

However, not all United States territory is equal.  There are five different kinds of US territory: unincorporated & unorganized, unincorporated & organized, incorporated & unorganized, incorporated & organized, and states.  These kinds of territory differ in how they may be alienated, but we don’t have to go into all of the details because Gotham, of course, is part of a state.  In fact, it’s not clear how the US would go about giving up part of a state, since that has never happened before.

In fact, if it’s possible at all then it would require a constitutional amendment.  “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. … There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.”  Texas v. White, 74 U.S. 700 (1868).  If Gotham were part of an unincorporated territory (like, e.g., Puerto Rico), then it’s at least arguable that Congress would have the power to “deannex” it.  See Christina Duffy Burnett, United States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797 (2005).  But once something becomes an incorporated part of the United States (organized or not), it’s essentially part of the United States forever.

So while it might be possible to evacuate and quarantine Gotham, it’s probably not possible to go so far as to declare it no longer part of the United States.  Perhaps the best that could be done would be to subdivide it into its own state, per Article IV Section 3.  That would require the consent of Congress and the state that Gotham sits in, but it could be done.  The resulting pariah state could be denied federal funding and of course would have no state government.  The result would be de facto lawlessness.

That wraps it up for No Man’s Land for now.  DC is (finally) reprinting the trade paperback version of the series, starting with volume 1 in December.  This is a good thing because it’s a little hard to track down full copies of the original printing.  Either way you get it, it’s a good series, and we recommend picking it up!


26 responses to “Batman: No Man’s Land, Part 5

  1. Did they give the ‘insurgents’, namely the residents of Gotham who had yet to evacuate the city for whatever reason, any further opportunity to ‘disperse’ out of the city limits once the order was given and before the bridges were blown, though? What was the time frame?

    And if the time frame was short enough, could there not have still been people trapped under fallen buildings who had yet to be rescued? Could they reasonably be defined as insurgents, given they were physically unable to leave their location?

    • We’re not sure of how much time was allotted between the Executive Order and legislative action on the one hand and the actual demolition of the bridges, tunnels and other known infrastructure links – oil, natural gas, hydro-electric transmission, etc. – for the evacuation to take place.

      Also, there was a provision in one or both actions that stated that anyone living in Gotham having a criminal record was considered persona non grata outside of the Gotham city limits. IE: they were required by the NML rules – statute and Executive Order both – to remain trapped in Gotham City once the demolition was over and done. They were expected to die of being there.

      • Yes, the refusal to allow people with criminal records or even criminal connections (e.g. suspected mob ties) to leave the city is probably not legally defensible. It basically amounts to a false imprisonment. I omitted it in the post, but it’s definitely worth mentioning, so thanks for pointing that out.

  2. Couldn’t the residents in Gotham city, residents who had until recently been in Gotham city or relatives/friends/employers of said residents file a lawsuit? It would be rather clear that a good number of lawful citizens of the United States would not be provided the protection and services that the state is obliged to give.
    Additionally, simply throwing away a portion of a U.S state could conceivably call the legitimacy of the state and federal government into question. The U.S government (in the form of the Continental Congress) fought a civil war against England to become independent and Gotham is almost certainly in one of the original thirteen colonies. After that the U.S government (the Lincoln administration) fought another civil war to keep the country intact. While withholding federal aid is obviously legal, isn’t openly abandoning the residents (most of whom are U.S citizens) an action that questions whether or not the government has the right to govern?

    • But think of all the congressional districts and electoral votes Gotham would’ve contained. If they were for the other guys’ side…

    • Such filings almost certainly happened during and after the NML arc’s timeframe, but DC editorial priority and assumption seems to have been that most readers would not care to follow stories coming out of those legal issues and actions.

      • Maybe it did (off-panel) happen, but I subscribe to the theory of ‘show, don’t tell’* and in this case they didn’t even tell us. It simply requires too much suspension of disbelief to think that this would occur.

  3. On the question of what state Gotham City occupies: The old ATLAS OF THE DC UNIVERSE placed Gotham City in southeast New Jersey, maybe somewhere near Atlantic City, though the shape of the state was highly distorted on the map. A more accurate map seen in the YOUNG JUSTICE episode “Schooled” placed Gotham in southwest Connecticut, slightly west of where Bridgeport is in reality, but that show is set in an alternate universe from the comics.

    Conversely, in the ’66 TV series, Gotham City was located in Gotham State. In that show it was a parody of New York City in every way — it was across the river from New Guernsey, it had locations like Chimes Square and the Avenue of the Armenias, it had a Mayor Linseed (for John V. Lindsay) and a Governor Stonefellow (for Nelson Rockefeller), and the stock footage used to represent it was usually of NYC. (Although at least one episode referred to New York City as a separate location.)

    Since we’re talking about matters of federal law and presidential decree, though, I doubt that it would make much legal difference which state Gotham is in. Would it?

    On another subject — has this blog ever addressed the legal issues in ESCAPE FROM NEW YORK? I think there could be some interesting comparisons between that and NO MAN’S LAND.

    • Tradition and inertia do seem to conspire to keep the comics’ version of Gotham in New Jersey…at least until the events of Flashpoint, perhaps somewhere along the coast between Jersey City and Atlantic City. What the various movies and TV series, live-action and animated alike, do with their versions is their production teams’ own business.

    • Escape from New York could make for an interesting post.

      We tend to use New York law when we talk about Gotham because a) it’s sometimes used as a stand-in for NYC and b) there’s a lot more material out there discussing New York law than, say, New Jersey or Connecticut, so it’s easier to write about.

      One nice thing about Gotham and Metropolis is that because their precise locations are never spelled out, we can do a comparison between different state laws and how they might affect the outcome of a case.

      • Would Escape from New York or Escape from Los Angeles be viable? If I recall, the movies were explicitly set in a different world where the laws had been greatly changed.

      • The DC Atlas put Metropolis in Delaware. SMALLVILLE put it in Kansas so it would be in driving distance of the title locale. A comic from 1939 depicted a telegram addressed to “Metropolis, N.Y.”

      • EFNY and EFLA are supposedly in the same universe (obviously the main character is the same) but their continuities, as I understand them, don’t quite match up. EFLA has a bit of retconning.

        Be that as it may, the basic premise of EFNY is that Manhattan Island is a Federal prison. The conditions therein would certainly violate our current understanding of the Eighth Amendment, but since the amendment doesn’t define cruel and unusual, given the circumstances of that alternate history the judiciary may have just fallen into line. Once that happens there’s nothing in that movie that’s particularly problematic (though I note that prisoners are allowed to choose euthanasia rather than be put into the prison, which could be interesting.)

        EFLA’s prologue, unlike EFNY’s, specifically states that the Constitution has been amended. (To create the “United States Police Force” found in EFNY would probably require a Constitutional amendment, but again, if the judiciary doesn’t protest, it doesn’t matter. We don’t know they DIDN’T amend the Constitution, we just don’t know for sure they did.) Though we know one thing the amendment(s) DID – namely, create a President-for-Life – we don’t know what they say. It seems quite likely that if things were bad enough to cause the American people to approve this kind of thing the powers granted to the President and the government were rather sweeping.

        EFLA would also have required us to either withdraw from or violate treaties about the militarization of space, as the orbiting weapons platforms described in the movie would be massively illegal.

  4. Melanie Koleini

    Once the US expeled Gotham from the union, could another country claim it? Could Grate Britton reclaim it or could a Native American Indian tribe claim the territory as part of their nation?

    • Yes and no. There are basically three internationally-recognized ways of gaining territory, of which two might apply here: cession and occupation. It’s clear that the US didn’t cede Gotham to anyone else, so that leaves occupation. Theoretically another country (or a would-be country) could occupy Gotham and attempt to establish sovereignty over it. The problem for a foreign country is that there are no land routes to Gotham (it’s an island) the area surrounding it is occupied by the military, the harbor and rivers surrounding it are mined, and the whole thing is surrounded by US territory, so any attempt to occupy Gotham would necessarily involve an act of war.

      Even if another country could land an occupying force (or if the existing inhabitants banded together to try to establish the sovereign nation of Gotham), it’s still doomed to fail without US recognition. Few significant nations would risk irritating the US by recognizing Gotham, and as a practical matter without US recognition Gotham is cut-off from the rest of the world.

      So in theory yes, but in practice no.

  5. “In fact, it’s not clear how the US would go about giving up part of a state, since that has never happened before.”

    Not quite. Consider Rio Rico, Texas and the Chamizal area, which were surrendered to Mexico in 1977 and 1963, respectively, by two treaties. I’m not sure whether the state of Texas was even consulted. Both those regions were very small, and they were handed over by treaty to a specific foreign country, but conceivably the precedent of federal authority in such matters could be stretched to cover larger areas in different situations.

    • I should have been more clear regarding what I meant by “giving up part of a state.” In both of those cases (and numerous other cases involving shifting rivers and refined latitude measurements), the U.S. didn’t give up part of a state but rather recognized that its claim to that part of the state was invalid, as it did not (or no longer) lay within the U.S.

      By contrast, the U.S. has never given up part of a state to which it had an undisputed claim.

      • IANAL, but I’ve read some on the subject, and I don’t think the US claim to Rio Rico was invalid. From the INS administrative case in re Cantu, “The artificial diversion of the river did not change the preexisting boundary… [The Rio Rico area] continued to be United States territory until the signing of a treaty between the United States and Mexico on November 23, 1970.”

        Of course, the opinion goes on to state that the region was in practice administered by Mexico, but it was technically American – the board was forced to acknowledge that being born there between the river diversion and the treaty had made Cantu an American citizen.

      • The status of the Horcon Tract was disputed (as demonstrated by the fact that Mexico exercised sovereignty over it), even if the United States maintained that it had a legitimate claim to it all the while. In fact, the full name of the Boundary Treaty of 1970 is the “Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary.”

        However one might read the Cantu case, I don’t think it can stand for the proposition that undisputed parts of U.S. states can simply be given up by the federal government. Furthermore, it was a decision by the Board of Immigration Appeals, which doesn’t carry much precedential weight, to put it mildly.

        But even if that were the rule, it is well established that the power to acquire new territory is derived from the treaty power (and the power to declare and make war, but that is no longer a valid way of acquiring territory). See, e.g., Downes v. Bidwell, 182 U.S. 244, 268 (1901). The power to cede territory, to the extent it exists, must surely come from the same power. That fits boundary disputes with Mexico well enough, but Gotham was not ceded to another country, and therefore there was no exercise of the treaty power.

      • What would be the legal status if Gotham were to declare itself to be the independent, sovereign state of Gotham? Not getting into the question of whether or not the U.S government would permit it, would the government’s decision to effectively abandon the residents give the declaration any legal weight?
        On a slightly more RL note would the recent debate between U.K and U.S lawyers about the legality of the American Revolution be a good model?

  6. Would not declaring Gotham its own state grant it a couple of Senators and a proportionate number of Representatives? Of course, organising elections would be logistically difficult, but that isn’t strictly speaking a legal question. Would it retain its state status after it was reincorportated back into the US?

    • Yeah, it’s a far from ideal solution for that reason, among many others. It’s just the best I could come up with under the existing constitutional framework for acquiring and ceding territory.

  7. I’d think the scope for foreign occupation of Gotham would be potentially broader and more risky than the US would tolerate. Consider the following – Gotham is declared not part of the US. The rogue (but recognized) state of North Ruritania sends in a small team of frogmen – maybe even just one guy. He gets past the mines, climbs out onto the Gotham shore, unrolls the North Ruritanian flag and declares it “sovereign soil of North Ruritania.” North Ruritania then promptly declares they must be granted access under the UNCLOS III treaty allowing innocent passage for commercial shipping and transit passage for military shipping. The only problem I could see (outside of the US plain just not obeying, which could lead to foreign relations issues) is whether Gotham is Inland Waters or Territorial Waters.

  8. It’s been a long while since I read NML, and I have no idea if there is anything in there about this however… are you going to do a follow up post about what happens when Gotham ‘rejoins’ the US and any legal fall out?

    • There are indeed some interesting legal issues there, including some criminal machinations by Lex Luthor. We’ll revisit the end of No Man’s Land again in the future.

  9. So, basically the SAME law framework (ie, US law) that declared in the 1860s that the “union” was “indivisible” and “once in, forever in” unilaterally turned around and kicked part of the “indivisible union” out?

    I bet the DC equivalent of the Tea Party crowd LOVES that idea…North vs South (or Red State vs Blue State) Round 2, anyone?

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