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Extradition statute—constitutional law—separation of powers—injunction against U.S. Government— class action: Lobue v. Christopher. 893 F.Supp. 65.
Published online by Cambridge University Press: 27 February 2017
Extract
U.S. District Court, D.C., August 31, 1995; modified September 15, 1995.
This action involved a constitutional challenge to the 147-year-old extradition statute, 18 U.S.C. §3184, on die ground that it violates the separation of powers. Plaintiffs were two individuals who had been found extraditable to Canada, pursuant to the extradition treaty between die United States and Canada, by a U.S. magistrate judge in the Northern District of Illinois. They brought an action in the District of Columbia against the Secretary of State, the Department of State, and the United States for a judgment declaring the extradition statute unconstitutional, and an injunction against their extradition. Plaintiffs also sought certification of a class consisting of persons who are or will be under threat of extradition from the United States pursuant to the statute, and an injunction against any such extradition. The court held (per Lamberth, J.) that (1) the extradition statute violates the separation of powers and is therefore unconstitutional; (2) the United States is enjoined from taking any further act toward the surrender of the plaintiffs to Canada; and (3) the proposed class is certified, and the United States is enjoined from surrendering anyone under the statute.
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- International Decisions
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- Copyright © American Society of International Law 1996
References
1 The statute has been in effect, essentially in its present form, since 1848. Act of Aug. 12, 1848, ch. 167, 9 Stat. 302.
2 893 F.Supp. 65, 74.
3 Under the statute, an extradition magistrate may be a federal judge or magistrate judge, or a state judge. In practice, however, state judges do not serve as extradition magistrates.
4 In making that determination, the extradition magistrate determines only that there is
probable cause to believe that there has been a violation of one or more of the criminal laws of the extraditing country, that the alleged conduct, if committed in the United States, would have been a violation of our criminal law, and that the extradited individual is the one sought by the foreign nation for trial on the charge of violation of its criminal laws.
Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976), cert. denied, 429 U.S. 1062 (1977).
5 See Benson v. McMahon, 127 U.S. 457, 463 (1888).
6 See Fed. R. Crim. P. 5.1.
7 893 F.Supp. at 74–75 (emphasis omitted).
8 Id. at 74.
9 Initially, the court denied class certification as unnecessary to effect the relief sought by the plaintiffs. Id. at 78. On September 15, 1995, the court modified its order and certified the class. By order dated September 29, 1995, the Court of Appeals for the District of Columbia Circuit issued a partial stay of the district court’s order pending appeal. The effect of the stay is that it allows extradition of any class member other than the two named plaintiffs and a third individual who had intervened in the case.
10 There is no authority to extradite in the absence of a treaty or statute. Valentine v. United States ex ret. Neidecker, 299 U.S. 5, 8–9 (1936).
11 10 Annals of Cong. 596–618 (1800).
12 See Ruth Wedgwood, The Revolutionary Martyrdom of Jonathan Robbins, 100 Yale L.J. 229 (1990). The British Government claimed that Robbins was a British subject who had participated in a mutiny aboard a British ship. Robbins claimed he was a U.S. citizen who had been impressed into the British navy, and that he had escaped during a mutiny carried out by others. After President Adams surrendered him to the British, Robbins was hanged. The case provoked a great deal of controversy and has been said to have been “one of the causes of the overthrow of John Adams’ administration.” John Bassett Moore, A Treatise on Extradition and Interstate Rendition 550 (1891). The case led to a national demand for some form of judicial participation in the extradition process, which in turn led Congress to enact the statute. See In re Kaine, 55 U.S. (14 How.) 103, 111–13 (1852).
13 Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893) (dictum) (emphasis added). See also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (citing Marshall’s speech for proposition that “the President is the sole organ of the nation in its external relations”).
14 893 F.Supp. at 72 (citing Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792); United States v. Ferreira, 54 U.S. (13 How.) 40 (1852); Gordon v. United States, 69 U.S. (2 Wall.) 561, 117 U.S. 697 (decided 1864, printed 1885)).
15 Id. at 75. Apparendy, the Government conceded the issue because of its concern that the Appointments Clause of the Constitution, Art. II, §2, cl. 2, might prohibit extradition magistrates—who lack a specific executive appointment as such—from acting in other than a judicial capacity. That concern appears to be unfounded, at least with regard to extradition magistrates who are federal judges or magistrate judges. Cf. Weiss v. United States, 114 S.Ct. 752 (1994) (appointment of military judges did not violate Appointments Clause because the appointees had previously been appointed as commissioned officers pursuant to the clause; additional appointment as military judge was not required).
16 See Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 280 (1856) (“a commissioner who makes a certificate for the extradition of a criminal” is not acting “under the judicial power”) (dictum); Koine, 55 U.S. (14 How.) at 120 (Curtis, J., concurring) (extradition magistrate’s authority under the 1848 statute was not based upon “any part of the judicial power of the United States”); In re Mackin, 668 F.2d 122, 126 n.6 (2d Cir. 1981) (Friendly, J.) (noting that majority in Koine, without expressly reaching the issue, appears to have been in “agreement with Justice Curtis that a magistrate’s action under the 1848 statute was not within the judicial power of the United States”); 10 Op. Att’y Gen. 501, 506 (1863) (extradition magistrate acts “under special authority conferred by treaties and acts of Congress,” and while extradition magistrate’s responsibility was “in form and effect judicial,” it was “not an exercise of any part of what is technically considered the judicial power of the United States”); 6 Op. Att’y Gen. 91, 96 (1853) (similar).