Author Archives: Ryan Davidson

Marvel Civil War V: International and Interplanetary Law

We’re nearing the end of our series on Marvel’s Civil War event. This time we’re talking about the fact that the conflict spills outside of US territory and implicates aspects of international law even within US borders.

I. Extraterritorial Conflicts

A. Foreign Nationals

As in the real world, the United States in Earth-616 is watched fairly closely by other countries as something of a weather vane for world events. So when the federal government passed the SHRA, all eyes were keenly fixed on the US to see how that was going to play out, not only in the international superhuman community, but by foreign governments. Things get really interesting where the two overlap, such as with Dr. Doom and T’Challa.

For starters though, the writers seem largely cognizant of the fact that the SHRA’s effect outside of the US is pretty limited. When Ben Grimm realizes that he can’t support either side of the conflict in good conscience, he relocates to Paris under the correct assumption that it will be difficult for federal agents to make him do much of anything if he’s in France. A number of other characters discuss fleeing to Canada. But it should be noted that Grimm did register with the government before he moved, whereas a superhuman who did not could theoretically be in violation of the SHRA in the same way that a draft dodger might escape punishment but still be in violation of the law. So Grimm’s registration and subsequent self-imposed exile does not necessarily violate the law (unless participation in The Initiative is mandatory, which some stories suggest may be the case).

Beyond that, the writers raise the question of whether a superhuman temporary visitor (who wasn’t a head of state or otherwise qualified to diplomatic immunity) would be required to register. This is never resolved in-universe, but it would stand to reason that this would work in much the same way as similar laws interact with immigration status. In general, when the government requires someone to register, that duty only attaches when permanent residence (or employment of some kind) is established. So a vacationing or exchange student would probably not be required to register, but someone seeking refugee status, permanent residency (a “green card”) or citizenship (naturalization) would. Requiring temporary visitors to register would not only be an absolute hassle, but would probably piss off other nations by imposing arguably unnecessary and burdensome obligations on their citizens. Even given the anti-super fervor which swept the country, one can imagine Congress taking a measured approach here.

Finally, there is also the issue, mentioned above, that certain characters are both superhuman and highly placed in foreign governments. Victor Von Doom is the head of state of Latveria. T’Challa is the king of Wakanda. There’s also the Atlanteans, who in at least one case are diplomatic envoys (though their spies probably don’t count, as spies can be detained). All of these will be entitled to diplomatic immunity, and attempting to abrogate that—as War Machine does late in the series—would constitute an act of war which should probably have caused a far bigger international incident than it seems to have. Even more, a foreign head of state actively taking sides with an insurrection, as T’Challa does with the Anti-Registration forces, is just completely out of bounds. This would be on the same level as France assisting the American Colonies or Britain coming in on the side of the Confederacy in the American Civil War, i.e. it would immediately lead to a state of warfare between the US and the offending foreign power (NB: the Union threatened war if Britain recognized the Confederacy but Britain did not actually do so). The fact that T’Challa is a former Avenger is given far more weight to the resolution of this situation than seems appropriate, and why the US and Wakanda aren’t completely at each other’s throats is never adequately explored. Granted, it takes two to tango, and if T’Challa wants to let the thing slide, that’d help, but there’s no reason that US State Department would want to do that.

Then we come to Storm, aka Ororo Munroe, aka T’Challa’s wife and the reigning Queen of Wakanda, who happens to be a US citizen—in theory, anyway. It seems unlikely that she would be permitted to retain her citizenship after taking up her office in the Wakandan government, even though her official status is never worked out in any great detail. But as the Wakandan monarchy appears hereditary, it would seem that marrying T’Challa would invest her with at least some official political authority. So when federal troops attempt to arrest her when she returns to the US as part of their honeymoon political tour… it’s not entirely clear that 1) she is still subject to the SHRA given her questionable citizenship, or 2) why her status in the Wakandan government does not grant her diplomatic immunity. T’Challa certainly seems to take a dim view of the attempt.

Why the US should care about this is significantly less a question of law than practice. Ultimately, laws really are just customs that society has decided to enforce, but the fact that so few of us have any role in that process tends to make us forget this. But in international law, because there is no sovereign to enforce the laws, custom and practice are pretty important. So if the US is seen to be flouting international law by attempting to arrest foreign dignitaries… that’s going to cause a wide range of problems not only with the dignitaries in question but with just about every other country in the world. The State Department is going to have one hell of a time trying to explain to other countries why the government decided that any domestic political issue trumped long-established international law, and why it isn’t going to happen again.

B. Embassies

The other main international law issue here is that of embassies. Embassies are generally subject to a limited form of extraterritoriality under the Vienna Convention on Diplomatic Relations, of which the US is a member. Essentially, while still technically the sovereign territory of the host nation, embassies remain under the jurisdiction of the represented nation, and the host nation may not enter without permission. This is why so many intelligence operations are centered around embassies: the host nation cannot come and go as it pleases. So if simply setting foot in an embassy without permission is a big deal—and it is—how much more is completely leveling one, as happens during the final battle of the series? Again, Wakanda seems to basically shrug this off, as T’Challa decides not to make a big deal out of it, but it’s remarkable that no other countries would say anything. We’re talking about the destruction of a foreign embassy on US soil which the government does not seem to have been able to prevent. That’s not going to give the international community warm and fuzzy feelings, and it’s entirely possible that other governments could use this incident as a pretense to beef up security at their own embassies in the US without the State Department being able to object as much as they otherwise might.

II. Interplanetary Law

We talked about this one back in Mailbag XIII. US jurisdiction extends to spacecraft outside the Earth’s atmosphere which are operating under the US flag, but not really much beyond that. However, the Inhumans, who live in the Blue Area of the Moon would probably be treated mostly like a foreign country, despite their extraplanetary location. They certainly seem to talk as if they should be treated as a foreign country. Black Bolt has imposed what amounts to a universal ban on earthlings hanging around the moon, which seems to amount to a territorial claim. While the US might not be all that happy about this—The whole moon? Really?—there doesn’t seem to be all that much that they can do about it, nor ultimately all that much incentive to either. The Inhumans don’t exactly have representation at the UN or any other international bodies, don’t seem to spend all that much time dirtside, and the US doesn’t have any ongoing presence on the moon, even in Earth-616. So really, Inhuman/US relations seem analogous to any other nation with which the US does not have formal relations. The fact that it takes a spacecraft to get there seems of little import.

III. Conclusion

So the SHRA and Civil War stories do seem to have a lot to do with international law, though again, such issues are frequently matters of custom (and politics) as much as law. The issues related to foreign nationals are not very well worked out, and the way the stories are told seem to make some of the more obvious solutions to those issues problematic. The stories seem to take the destruction of an embassy pretty lightly. But as in other contexts, the fact that some of the people with whom the stories deal are located outside Earth’s atmosphere doesn’t make as much difference as it might seem at first.

X-Men: First Class

There’s a new X-Men movie out, and it’s actually pretty great. But you don’t come here for detailed discussions about the merits of the movie as a movie or about the fidelity or creativity of the adaptation. No, you come here to read about the legal implications of the various plot devices. So let’s get down to it. Given the plot, most of what we’ve got here is going to be international law, with an added civil rights / employment law bonus. As always, we’ve got spoilers.

I. Nazi Gold

In his quest to find the Nazi “doctor” that killed his mother, Erik Lensherr used an ingot of Nazi gold as a pretense to get an appointment with a high-ranking Swiss banker. This has a certain realism to it, as a vast amount of Nazi gold disappeared into European banks by 1945, and much of it probably remains there. The banker comments that possessing such gold is illegal. He’s right. In September 1946, the United Kingdom, United States, and France formed the Tripartite Commission for the Restitution of Monetary Gold with the mandate to identify those persons or institutions with claims that gold had been looted from them by the Nazis and the goal of restoring that gold to its rightful owners. The Tripartite Commission was created as part of the Paris Peace Treaties which brought about the end of the war. The Commission’s task took a long time, and it was only dissolved in 1998 with something like 65% of the claimed gold returned. Congress addressed the issue with the “Holocaust Victims Redress Act, Pub. Law No. 105-158 in 1998. The Act basically authorizes the US representative to the Commission to dispose of what assets remained in the Commission’s possession at that time.

Still, there’s one little wrinkle. Lensherr, being a Jew and victim of the concentration camps, could in theory have a valid claim to the gold in question, which would make the legality of his possession of the ingot less clear. But as this issue was dealt with on a really high level, it’s doubtful that law enforcement would care much one way or the other. The Commission was mostly concerned with the gold possessed by sovereign governments, not individuals.

II. Acts of War

First, there’s the operation to nail Shaw when he meets with the Russian general. This is a CIA-directed op, with CIA agents on the ground, leading a group of what amounts to mercenaries—other than Moira and the other agent, it isn’t clear that anyone else involved was a federal agent—in attempting to infiltrate a sensitive military compound to assassinate a high value target. Several major wars have been sparked because of the assassination of a high-ranking official, so this is kind of a big deal. Granted, in most cases where a war follows an assassination, the actual death is a pretense for armed conflict really motivated by more serious underlying tensions, but this kind of thing is dramatic enough to push things over the edge.

But the appearance of the X-Men on the scene at the climax of the Cuban Missile Crisis? That might not be, because the government had not authorized them to do anything. They were not acting under anyone’s orders (or at least anyone with the authority to give those kinds of orders), and it’s far from clear that the CIA even knew what they were up to. So Professor X causing the Russians to fire on their own ship could plausibly have been disavowed by Washington as rogue agents acting without authority. The fact that the Russians had already ordered the ship to turn around means that they’d probably be willing to grasp at any excuse not to go to war, so this explanation may well have been accepted, whether Professor X was acting under orders or not.

Magneto springing Emma Frost from the CIA holding center wouldn’t count either, as he wasn’t acting on the authority of any sovereign entity. At the time, it probably would have been classified as a criminal act, because the government’s rush to classify everything it doesn’t like as “terrorism” did not really get its start until the events of 2001. But it is plausible that, if apprehended, he could have initially been charged with espionage. Granted, Magneto does not seem to have any particular interest in working with any human government, and his little trip into the facility did not appear to include the acquisition of any information. Still, he damaged a bunch of property and may have killed some agents at a highly classified facility, so the feds would be understandably upset about that. They might not be able to make a charge of espionage stick in the absence of any connection to a foreign power though: the Espionage Act generally requires that one transmit or intend to transmit something to someone. Acquiring classified information and doing nothing with it isn’t espionage.

III. Employment Discrimination

At one point in the film, Moira’s CIA boss states in a meeting that “there’s no place for a woman in the CIA.”  Today that kind of comment might well give rise to a discrimination claim, but what about in 1962?  As it turns out, an employer—even a government employer—could probably have gotten away with it because the Equal Pay Act of 1963 and the Civil Rights Act of 1964 (specifically Title VII) had not been enacted yet.  Without those important Acts in place the courts were generally pretty tolerant of both de facto and de jure discrimination against women.  For example, it wasn’t until 1971 that the Supreme Court first struck down a state law on the basis that it discriminated on the basis of sex.  Reed v. Reed, 404 US 71 (1971).  And fully equal participation in jury service was not mandated until Taylor v. Louisiana, 419 U.S. 522 (1975).  So kudos to the writers for working in that accurate (if depressing) “sign of the times.”

IV. Conclusion

X-Men: First Class isn’t exactly a courtroom drama, but the legal issues that are there were treated pretty well.  We’re looking forward to the all-but-inevitable sequel.  In the mean time, check it out.  It’s a pretty good flick.

Marvel Civil War IV: The Draft and Posse Comitatus

Continuing our series on Marvel’s Civil War event, we come to the issue of whether or not the SHRA amounts to a kind of conscription. We briefly discussed the draft and the SHRA in the comments to an earlier Civil War post, and conscription was discussed in a Mailbag a while back. We concluded there that drafting particular people, even on a named-individual basis, may be within congressional authority under the Constitution. But turning to the issue of the SHRA, we run into problems. Specifically, because the SHRA and related Initiative are pretty clearly intended to promote domestic security, and operate almost entirely within US borders, the Posse Comitatus Act comes into play.

The Act was passed in 1878 in the aftermath of Reconstruction, which followed the actual American Civil War. The thrust of the Act is that the United States armed forces—Army, Navy, Air Force, and Marines (the Coast Guard is excepted by case law)—are significantly limited in their ability to conduct operations on US soil. There have been very, very few times when the federal government has used actual soldiers to carry out its will on US soil.

Perhaps the most famous such event was when President Eisenhower ordered the 101st Airborne Division of the US Army to provide an armed escort for the Little Rock Nine, in one of the most dramatic incidents in the fight for public school integration during the late 1950s. Eisenhower also federalized the Arkansas National Guard, because then-governor Faubus was using it to attempt to block the integration of the schools. But it was really only the intervention of the governor that provoked this kind of armed federal response. Congress and the President have significant constitutional authority to use the National Guard and even the regular army to put down “insurrection,” and a state governor’s open, armed defiance of federal law surely counts. This power derives from the Insurrection Act, which gives the President the authority to use the regular army to put down insurrection and lawlessness.  The Act is in turn derived from Congress’s constitutional power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  The Insurrection Act was also invoked to quell the 1992 Los Angeles riots.

Apart from those incidents and the Civil War, the number of times the regular army has been deployed on US soil is pretty low. This is because the Posse Comitatus Act prohibits the domestic use of US soldiers without the express authorization of Congress. The Insurrection Act is one such authorization, but any circumstance which falls outside that mandate will require additional legislation, either dealing with a specific situation or creating a broader grant for a particular kind of activity.

In fact, in the real world, shortly after the Marvel Civil War event began, Congress passed an amendment to the Insurrection Act that would arguably authorize the use of the federal armed forces to deal with the threat of supervillain violence.  The 2006 amendments to the Act give the President the power to 

employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a … terrorist attack or incident, or other condition …, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and such violence results in a condition that … so hinders the execution of the laws of a State or possession … and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In the wake of the Stamford Disaster it could be argued that a “terrorist incident or other condition” had occurred, the regular state authorities were incapable of maintaining public order, and the level of violence rose to the level of depriving people of their rights.  This broader authority under the amended Insurrection Act may authorize the Initiative’s activities, but it would not authorize the registration and conscription parts of the SHRA.  Thus, the SHRA would still have to be passed, and so it would make sense to include a more specific authorization for the Initiative rather than relying on the Insurrection Act.  Note, though, that the 2006 amendments were later repealed.  They were in force during most of the Civil War event, however.

It’s worth pointing out that the National Guard, as such, is really under the control of the respective states. The Guard has a close relationship with the regular armed forces, operates on a federal level under the Department of Defense, and is composed largely of inactive or reserve federal soldiers, but remains distinct from the regular army in that it answers ultimately to state governors, not the President, unless the President exercises his constitutional authority to take control of the Guard. Most notably, one cannot be drafted into the National Guard. Congress cannot draft people into state agencies, and though the states can theoretically mandate some kind of conscription into their own services, none have tried.

The issue with the SHRA is that if the Initiative is an activity of the US military, it runs into the Posse Comitatus Act, and if it is not, it is far from clear that Congress could use the draft to staff it. Again, while Congress has broad authority to conscript men into the military, that authority is limited to the military, as it is an implied power of Congress’s explicit ability to raise armies. If conscripts are not to be used for the army, the conscription power would not seem to apply.

How can one get around this seeming catch-22? Well, one could posit that the SHRA included specific authorization for the Initiative, which would meet the requirements of the Posse Comitatus Act. Remember, the Act does not say that the Army cannot be used on US soil, it says that the Army cannot be used on US soil without congressional authorization, which Congress is naturally free to grant. However, one wonders just how popular such a move would be given that the immediate justification for the SHRA was the Stamford Disaster, in which a bunch of superheroes acting irresponsibly resulted in the destruction of an elementary school. Subsequent stories indicate that the Initiative remains far from popular, and the Initiative training camp seems to be subject to organized protest just about around the clock. One can imagine that congresscritters would be reluctant to deviate so strongly from established US custom, particularly in light of popular opposition. The SHRA itself is frequently said to be popular, but the Initiative somewhat less so.

Some of the uncertainty here stems from the general confusion surrounding the SHRA itself. But the Posse Comitatus and related draft issues seem to be something that the writers could have gotten right if they’d wanted to. Congress is entirely free to authorize military action on US soil, and given that superhero teams would probably be limited to fighting problems which require their particular talents, one can see how certain members of Congress could think that would be a good idea. Whether or not there would be enough support for that provision to pass it is an open question, but it would have made this aspect of the Civil War even that much more consistent.

Kick-Ass

So last year a little movie called Kick-Ass was released to theaters. It was moderately successful, to the point that a sequel has been rumored, though that’s apparently in limbo for the moment. At any rate, the basic plot is that an unpopular high school kid, under the influence of comic books and a healthy dose of insecurity, decides to step up and be a superhero. He even gets a costume and everything. The results are… well… not exactly heroic per se, but pretty funny. This review is organized less around specific legal issues than the characters and the legal issues they raise. Spoilers follow as always.

I. “Kick-Ass”

First off, “Kick-Ass” himself. Better known—or rather “officially”, since no one seems to know him at all—as Dave Lizewski, resident of what seems to be either Brooklyn or Queens, is a loser. Plain and simple. He spends a disproportionate amount of time either hanging out in a comic book store or local diner with his two outrageously nerdy best friends or being rendered speechless by Katie, the girl he’s got a massive crush on. A couple of local thugs have set up shop in a parking lot/alley that Dave and his friends regularly cross on their way to and from school, and the thugs have relieved them of their lunch money and consumer electronics with sufficient regularity for it to have become something of a ritual. Then, one day, he asks himself why no one has tried to be a superhero in real life. He decides to go for it, and orders himself a wetsuit from an online vendor. After a couple of modifications and some… batons? practice swords? they’re never really identified… he’s got himself a costume and a self-imposed mandate. Who does he run into first? The aforementioned thugs. Emboldened (delusional?) by his newly-discovered superhero-ness, he decides to make a stand.

The scene of a gangly, out-of-shape teenager going after two muscle-bound thugs goes about as well as could be expected. Dave—excuse me, “Kick-Ass”—surprises the thugs for a minute when he resists, and manages to land one or two decent shots with his sticks. But unlike the stories in comic books, these thugs are not easily intimidated, nor do they mess around. Kick-Ass gets knifed in the gut pretty much right away, and as he wanders off, bleeding profusely, Kick-Ass gets hit by a car, shattering just about every bone in his body. The resulting full-body x-rays reveal pins and plates throughout his entire skeleton, yielding a picture which admittedly does look like a film of Wolverine, if Wolverine’s adamantium frame were patched together piecemeal with pins and screws rather than seamlessly welded to his skeleton by design. After a few weeks in the hospital Dave returns home, little worse for the wear, except that the damage to his spine has deadened his ability to feel pain. In short, Kick-Ass’s one superpower is the ability to take an ass-kicking slightly better than your average guy, not out of sheer physical toughness, but because he’s damaged goods.

After that auspicious start, things get a bit more interesting, legally speaking. Kick-Ass gets his break-out moment when some civilians upload a video to YouTube of him fighting off a group of hooligans to save a random stranger. The superpower does come in handy, as Kick-Ass really does take a beating, but he manages to get off a few defiant quotes about being willing to die rather than watching a group of guys beat up a defenseless man while the crowd watches. And you know what? Dave, as Kick-Ass, would be entirely within his rights to do what he did there. The right to defend others is basically co-extensive with the right to self-defense in most jurisdictions, i.e. one may use reasonable force to fend off or prevent what one reasonably perceives to be an assault on another. The weapons Kick-Ass was using aren’t particularly dangerous—no guns nor knives—and there were a bunch of attackers, so even if they had been unarmed, some additional “oomph” would be justified. And he doesn’t go after them, or even really try to hurt any of them, he simply strikes out whenever one of them attacks the guy he’s defending. This is, basically, an okay thing to do.

But that’s about where things stop. Dressing up in a costume isn’t really a violation of any law, but deliberately going out on patrol to fight crime with force is likely going to be a problem unless one is a law enforcement officer.  We’ve mentioned it in comments, but some idiot was arrested and charged in Michigan last month for hanging off the side of a building in a Batman costume with a variety of concealed weapons. The cops were, to put it mildly, not amused. The stock-in-trade of the costumed hero involves trespassing, violations of weapons laws (for concealed weapons if nothing else), and disturbing the peace, if not also assault or worse. Sure, there’s plenty of crime in our streets, but at this point, it isn’t the kind of crime that we believe could not be solved by police officers if there were enough of them.

II. Hit-Girl and Big Daddy

Of course, Kick-Ass realizes pretty quickly that he isn’t the only game in town. “Big Daddy,” a former police officer with a grudge, and his precocious daughter “Hit Girl,” are as close to the real deal as one can get without having actual superpowers: highly trained and ridiculously well-equipped. Hit Girl herself is a combination of utterly hilarious and deeply disturbing, given that she appears to be about twelve, yet is the single most violent and foul-mouthed character in the movie. There are a few obvious legal problems here. Training your daughter to take bullets by shooting her constitutes “endangering the welfare of a child” (N.Y. Penal Law 260.10) if anything does, and the number of laws they violate by possessing the kinds of weapons they do aren’t even really worth enumerating. It’s so blatantly illegal that it’s beyond illegal into something else entirely. Then again, the whole movie is pretty tongue-in-cheek, and it’s arguable that part of the whole project is to point out just how absurd the whole superhero gig really is.

III. Conclusion

If you’re looking for a realistic movie, this probably isn’t it, but in taking this approach, the filmmakers do seem to capture just how unlikely the idea of real superheroes actually is. It’s worth watching for that alone, and it also manages to be a pretty hilarious movie in its own right. A sequel probably isn’t warranted at this point, but it’s definitely worth watching.

Smallville III: Doppelgängers and Direct Democracy

This marks the third post in our series on Smallville (1, 2), which ended its run a week ago. This time we’re looking at two plot elements in Season Ten: Lionel Luthor’s reappearance and the vote to overturn the Vigilante Registration Act. Spoilers, as always, follow.

I. Dopplegängers

Early in Season Ten, Clark accidentally activates a “Mirror Box,” which transports him to Earth-2, an alternate universe where Lionel Luthor, not Jonathan and Martha Kent, discover Clark the day of the meteor shower. The world is a rather bleak and terrifying place, and the alternate version of Clark is really quite a monster. Of interest for us is that the alternate version of Lionel manages to cross back into the “real” world when Clark returns. Of course, the “real” Lionel died several seasons ago, so Evil Lionel represents something of a surprise for our heroes.

Lionel goes about reclaiming the assets and property disbursed upon “his” death several years before. We talked about resurrection and probate law a while ago, and this winds up being pretty much the same analysis. The key here is that Evil Lionel is passing himself off as Real Lionel, and no one has any reason to suspect otherwise. The only way to really prove that he’s a doppelgänger is to have Real Lionel make an appearance, and that’s not going to happen. Even exhuming the body wouldn’t be conclusive proof, given the apparent state of cloning technology in the Smallville universe. Remember Lana faking her own death a few seasons ago? Using a clone. Lionel could have done the same thing here, and it’d be very, very difficult to prove otherwise. And really, a court is going to have a much easier time believing that someone like Lionel faked his own death than it will believing that he’s from an alternate reality.

Furthermore, other than Tess and Oliver, most of the LuthorCorp execs, i.e. the people with the most vested interest in Lionel’s status, are probably pretty excited to have him back, seeing as the business always seemed to do better when he was in charge. Lex did okay, but he’s still dead, and the Oliver/Tess administration seems to be mostly a series of disappointing quarterly reports and inconveniently fatal explosions. A return to the old guard would plausibly be welcomed.

So ultimately, while it may take some explaining, the mere fact of Evil Lionel’s presence will probably speak for itself, and it’s entirely possible that after some months, he could wind up getting most of his assets back. Particularly as the estate seems to still be winding down, given the continuing discovery of artifacts like the Mirror Box. Assets still in the estate would be his merely for the asking.

II. Direct Democracy and the VRA

A fairly serious plot arc in season ten is the Vigilante Registration Act, which seems to be pretty similar to the Superhuman Registration Act we’ve been discussing over here. This Act is even less worked out than the SHRA, but the show spends a lot less time playing with the details, so this winds up being less of a problem than it is in the Marvel Universe, particularly as the act seems to have been in force only for a few months, and with only a few dozen targets. But the same kind of constitutional issues are present, and the analysis is basically the same, so we won’t duplicate that discussion here.

The new wrinkle is that midway through the season, there is a popular vote to overturn or repeal the VRA. While Law and the Multiverse has, we hope, demonstrated itself as having a charitable eye for Acceptable Breaks from Reality where getting the law right would make for bad television, we are here coming to an exception: this portrayal of the legislative process is spectacularly, unforgivably wrong.

Why? Because there is absolutely no mechanism, constitutional or otherwise, for direct democratic referendum on any piece of federal legislation. Never has been, and unless the Constitution is amended, there never will be. The Constitution explicitly and self-consciously creates a system of representation and permits no direct participation of the people in the legislative process.

The federal constitutional amendment process, for example, is initiated by either Congress or the state legislatures.  Unlike many states, the people are never directly consulted about amendments.  Even more, despite the massive hype surrounding the Presidential election, direct election of the President is actually a myth: the fact that the popular vote matters at all is a feature of political custom and state law, not constitutional law. The Constitution provides that the President shall be elected by the Electoral College, not by the popular vote, and though states may determine their own means for choosing their Electors–including popular vote–Electors are under no constitutional obligation to vote the way their state’s popular vote goes, and state laws attempting to punish “faithless electors” have yet to be ruled on by the Supreme Court (probably because it’s never made a difference). So for starters, the federal government of the United States is way less democratic than most people probably think.

Getting the mechanics of the Presidential or congressional elections wrong is one thing, and probably excusable. Not everyone is a policy wonk. And in other cases, we’ve been pretty forgiving about authors and editors who don’t have the details of administrative law figured out. A lot of lawyers are pretty fuzzy there too. But making up an entirely new, unprecedented, and quite probably unconstitutional political form goes beyond the pale. This is high school civics stuff, not high-level political theory. Citizens of the United States have absolutely no opportunity to vote upon federal legislation. None. Zero. Nada. So a vote to “repeal” the VRA is completely meaningless.

Okay, theoretically, it’s possible for a repeal bill to be written that has as its trigger the results of the popular vote.  Triggers are a common feature of legislation, but they are usually based on either time or a future action of the legislature (e.g. a declaration of war).  Using a popular vote as a trigger would likely be so politically and legally controversial that the debate over the legitimacy of the procedure would probably overwhelm the debate over the underlying issue.  And of course the repeal bill would still have to be passed by Congress and signed by the President.

It’s also not clear under which enumerated power of Congress the popular vote could be taken under.  Remember, regular federal elections are handled by the states, though somewhat regulated by the federal government through laws like HAVA.  It’s quite possible that Congress would have to ask or bribe the states to handle the voting.  If any state abstained from participating in the vote that would call into question the legitimacy of the whole process.  The whole thing is, at best, a giant mess.)

If the writers wanted to come up with a high-stakes vote on the legislation, they could have. Witness the drama and wrangling that went into getting the ACA passed last year. It did come down to a few key votes, some of which were late at night or right down to the wire, and the drama dominated the news cycle for weeks at a time. But it was all representatives and senators doing the voting, responding to pressure from the public, not citizens voting on their own behalf. This would have made Martha Kent’s role even bigger, as instead of simply giving a stump speech here and there, she’d have been actively involved in the process. Of course, that would have meant paying Annette O’Toole more, and while that’s no bad thing for the episodes she’s been in, it may not have been possible for budgetary or logistical reasons.

Still, shame on the writers for not finding a way to do this even within the bounds of the Hollywoodland legal system. Even if they’d fudged the process of actually getting a bill through Congress, that’d have been okay. Congressional procedure is notoriously arcane, and in the light of the ACA last year, any writer worth his salt should be intimidated by the thought of getting that right. Any TV show that gets bicameralism and presentment down gets a free pass on legislative procedure as far as we’re concerned, as that’s the about as much legislative procedure as adult Americans can be expected to know. But this? Bad writers! No biscuit!

III: Conclusion

So with this post we’ve got one thing the authors get basically right, i.e. Evil Lionel can probably claim Real Lionel’s assets without too much difficulty, and one outrageously wrong, i.e. there is absolutely no provision in the American political system for direct popular referenda on federal legislation. There’s plenty more to look at in this series, so we’ll probably return to it at least once or twice more.

Marvel Civil War III: The SHRA and the Constitution

For the third post in our series on Marvel’s Civil War event (1, 2), we’re looking at the constitutional validity of the Superhuman Regstration Act (SHRA). This will revisit some topics we’ve already talked about in other contexts.

I. The SHRA and Federalism

One of the biggest questions about the SHRA is whether Congress can do it at all. The Act was clearly and explicitly supposed to be an analog of the Patriot Act, passed in the aftermath of the September 11 attacks and widely viewed as a significant expansion of federal power at the expense of civil rights. Whether or not the Patriot Act is a net positive for society is a pretty good litmus test for one’s political leanings, and the SHRA—had it been planned out in detail—might have been too.

But the SHRA does more than the Patriot Act does, and even (or perhaps especially) when it is deliberately seeking to expand the reach of federal power, Congress must still  deal with the Constitution, at least nominally. Whereas the Patriot Act mostly has to do with anti-terrorism intelligence gathering and transportation security, the SHRA targets a rather ill-defined category of American citizen for special treatment. One of the biggest ambiguities is exactly who counts as a “superhuman” under the Act. Mutants fairly clearly do, as do people who can, e.g. fly under their own power, leap tall buildings with a single bound, etc., but why technology-based heroes should need to register at all is never quite explained. Either way, something like the SHRA runs up against the limits of the powers Congress has been granted by Article I.

We talked about a similar fictional federal law—Watchmen’s Keene Act—way back in December. There, we discussed the constitutional validity of a federal act outlawing costumed vigilantes and concluded that while this may represent a rather unusual implementation of the Commerce Power, current jurisprudence suggests that such an act might well be permitted to stand by the Supreme Court. Given that the SHRA was passed in the aftermath of the Stamford disaster (which resulted in the deaths of over 600 civilians including dozens of children), popular opinion was strongly in favor of the SHRA, and the Court has proven reluctant to play the heavy when faced with a Congressional action which could go either way constitutionally but carries strong popular support.

II. The SHRA and Congressional War Powers

But the SHRA has something going for it that neither the real Patriot Act nor the fictional Keene Act do: Congress is explicitly empowered to “raise and support Armies. . . . to provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval forces,” etc. In other words, Congress has the power to raise armed forces for the national defense, and there is very, very little limit on its powers in this area. Indeed, the Supreme Court ruled unanimously that Congress’s power to raise and support an army gives it the right to link federal educational funding to the presence of military recruiters on university campuses. So if, as is sometimes indicated in the comic books, the SHRA was intended to form a kind of special branch of the federal armed forces, under the auspices of S.H.I.E.L.D. or something else, Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.

But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is never directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to unusually strong statements of congressional power when faced with this particular issue. See, e.g. Lichter v. U.S., 334 U.S. 742 (1948). But while the power of Congress to draft people into the armed services is generally beyond question, the power of Congress to draft specific individuals is something different.  For the most part, since World War II the draft has basically applied to all men equally.  Prior to World War II there was significant class discrimination, most exemplified by the paid substitute system of the Civil War.  But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the 19th and early 20th Centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.

We talked about this in a Mailbag post and came to the conclusion that while this is an untested area of law, Congress’s sweeping war powers may permit them to target specific individuals for the draft. Again, the courts are very unwilling to restrict congressional authority where it is explicitly granted, and even though Amendments to the Constitution can and do curtail those powers, as there is no indication that any of the constitutional Amendments were specifically intended to affect the draft, it’s a fair bet that the Supreme Court would find that they do not.

III. Conclusion

Really though, what we have here is more evidence that the Civil War event could have been a lot better if the staff had simply decided what they wanted the law to do. The SHRA, or at least some form of it that does what the story needs it to do, probably would be constitutional. It is probably within Congress’s power, either the Commerce Power or the war powers, depending on how the authors want to spin that. And as we’ve said before, the story would have been a lot more balanced if the pro-reg side had been able to argue that the law was fair, constitutional, and well implemented. C’est la vie, we suppose.

Thor

So Thor is out. And it’s pretty good. I mean, it’s no Dark Knight, or even Iron Man, but neither is it The Fantastic Four (which, let’s face it, just sucked).

But you aren’t here for a review of the movie as a movie. You’re here for a review of the movie as it pertains to the legal system! At first glance, one might wonder exactly how a movie about an Asgardian major deity might have anything whatsoever to do with the American legal system. You’d be surprised! Spoilers, as always, follow after the break.

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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.

Superman’s Citizenship

So it’s come out that Superman will apparently be renouncing his United States citizenship in an upcoming Action Comics. This has generated a certain amount of buzz and sent people to this post from back in December.

But renunciation is a slightly different question, and one worth talking about. Turns out that you can, in fact, renounce your citizenship. 8 U.S.C. § 1481 governs the voluntary renunciation of citizenship through a variety of ways, e.g. taking up arms with a foreign government or committing treason, but also by simply making a statement to that effect to an appropriate diplomatic officer. It’s not nearly as hard as it might be. The State Department actually has a page on it.

But Superman renouncing his citizenship is a little more complicated than you or I doing so. At one point, he was an honorary citizen of every country in the world–which would seem to alleviate a lot of his justification for doing so now–but that may have been pre-Crisis, so its current canonicity is open to question. More than that though, what effect, if any, does Superman’s renunciation have on Clark Kent’s citizenship? Now we start to run into some of the problems of maintaining a dual and/or secret identity. We’ve talked about this at some length here and here. Kent is just a regular guy as far as anybody can tell. Not only does it seem a bit hypocritical to renounce citizenship with the persona that isn’t actually tied to a permanent address while maintaining one’s mundane existence, but flipping back and forth between the two could be problematic, not only logistically, but in a kind of “now you see it, now you don’t” kind of thing with legal rights, duties, and privileges.

All in all, it should be fun to see where DC intends to go with this in and of itself, but it’ll be even more fun to see if they get the legal aspects right.

Time to hit up your local comic book store…

Marvel Civil War I: Meta-Post

The Marvel Civil War event of 2006-2007 is a story which is perhaps the most sustained look at the legal environment of a comic book world to date. For those who aren’t familiar with it, let’s just say the event was… controversial. As such, it is a natural topic for Law and the Multiverse. We’re going to start out by looking at some of the more “meta” issues of the event, i.e. the difficulties that can arise when dealing with real law in more than a passing way in fictional worlds.

I. Common law systems and precedent

The issue here is that legal systems, particularly common law systems based on case law and precedent, develop naturally with events. Legislation is usually slow and sporadic, so frequently the courts are where new factual scenarios are tested out. The courts apply existing law to new factual scenarios all the time, and in a common law system the result is often new law.

The problem here is that even allowing for retcons and comic book time, by the time Civil War hit the Marvel Universe had existed for decades. The legal system doesn’t move quickly, and it’s plausible that Congress might not have taken any action to regulate superheroes until then, but it’s significantly less plausible for the courts not to have taken notice. Someone was going to try to sue Iron Man, the X-Men, the Fantastic Four, or any number of wealthy supervillains at some point, quite possibly subrogating insurance companies. These cases would create a body of superhuman/metahuman law.

But no such body of law is in evidence. Part of what makes the She-Hulk comics so much fun is that they operate under the assumption that the issues raised in the stories are issues of first impression. But they aren’t, or at least can’t realistically be. Maybe they would have been in 1966, but not in 2006. Heck, many lawyers don’t really like citing cases more than about twenty years old, simply because the law develops quickly enough to make most cases older than that of suspect value. So the idea that the Superhero Registration Act is somehow breaking new ground and introducing ideas which have never been handled before is problematic, particularly because the legal system would have had a chance to deal with many of these issues individually over time rather than trying to deal with it all at once via legislation. There’s messiness there that hurts the internal coherence of the story.

II. Legal drafting and continuity

But perhaps the biggest problem is that the Marvel bullpen never really seems to have decided 1) whether or not the Act was a good thing (Millar seems to have thought so, but a lot of the other writers seem to have other opinions. See Amazing Spider-Man # 530 for a truly lovely meta-textual spat), but more importantly 2) what the Act actually says.

Because believe it or not, what a given law actually says makes a big difference.  Most judges are pretty big on deferring to the legislature, and they do that by paying very close attention to exactly how a law is worded.  Similarly, the executive branch has to follow wording of the laws: if a bill says that it will be enforced by Agency X, then the President can’t decide to have Agency Y do it instead.  This is one reason lobbyists spend their money getting single paragraphs inserted into bills and why it’s so scary that our elected officials on both sides of the aisle tend to vote on bills they have absolutely no intention of reading.

In this particular case, it makes a huge difference both for the motivation of the characters and for the ultimate moral of the story as to whether the Act requires superhumans to go public or not, whether they are required to be federal employees or not, whether a super-powered individual who promises not to use their powers is required to register, etc. All of these make a huge difference and are hotly debated among the characters, which makes the whole thing feel more like the health care debate before the law was passed rather than any two sides discussing something which is already law, i.e. the disagreements often read like they’re about what ought to be, not about what is. This is kind of hard to avoid in fiction, particularly speculative fiction written by over half a dozen authors, but a little editorial discipline could have made the whole thing a lot more compelling.

For example: in What If? Civil War, the writers examine what would have happened if Tony Stark had been honest with Captain America at the beginning of the conflict instead of using treachery. The suggestion is that Cap would have agreed to become the head of the executive agency in charge of superhuman registration instead of Stark, and the difference in personal leadership would have made a big difference in the outcome. This is plausible enough; cabinet-level officials can and do have huge effects on the activities of executive agencies. But there isn’t that much indication in the canon Civil War stories that this is how the law was supposed to be implemented. The main Civil War stories basically make it look like it’s largely a S.H.I.E.L.D. operation with support from law enforcement and the military, not the creation of an entirely new agency.

More generally speaking, this is probably why most speculative fiction doesn’t spend a lot of time working out fictional worlds’ legal systems to any great level of detail, i.e. the devil is in the details, and if readers want extended discussion of the niceties of statutory interpretation and administrative law they can go to law school. Any sufficiently detailed legal system is going to take so much time and space to explain that the authors would never get around to telling an actual story. So while it’s disappointing that the Marvel authors didn’t make some effort at coming up with at least the basics of what the SHRA was supposed to do, one can see why they might have chosen not to. And one can also see why tangential interaction with the law, particularly for comic effect, can be a lot more effective than an attempt to deeply integrate the law as a plot device in speculative fiction. It’s hard enough to do in realistic fiction.

III. Conclusion

Hopefully, that lays out something of the groundwork and fundamental meta-type issues with the Marvel Civil War event. We’ll take a closer look at the actual stories in future posts.