Question for Kagan: Can The Congress Limit Fifth Amendment Rights?

Does the Congress have the right to limit Fifth Amendment rights by passage of a statute? This seems like a simple question to which the answer is an emphatic No. But the Obama Administration's position on this puts this view in doubt:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights [. . .] Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

Does Elena Kagan believe that Congress can restrict fundamental Constitutional rights by mere passage of a statute? Let's hope not. I'll have more on this silly election year proposal from the Obama Administration in a later post.

Speaking for me only

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    Bush is out... (5.00 / 2) (#4)
    by kdog on Mon May 10, 2010 at 11:20:37 AM EST
    and the Bill of Rights is still treated like toilet paper at 1600 Penn...we need to put out an APB in search of America's soul cuz that puppy is MIA.

    Only Nixon could go to China (none / 0) (#7)
    by jimakaPPJ on Mon May 10, 2010 at 11:31:06 AM EST
    Only Obama can do this.

    I'm surprised Jimbo... (5.00 / 1) (#8)
    by kdog on Mon May 10, 2010 at 11:35:00 AM EST
    thought you'd be proud of Obama...trampling sacred rights to get the terr'ists...or is he just not trampling enough for your tastes?..:)

    kdog!! (5.00 / 1) (#10)
    by squeaky on Mon May 10, 2010 at 11:41:33 AM EST
    Now, now...  lol

    Surprisingly less couched, than usual..  

    Anyway I always admire your ability to step into other's shoes...


    That assumes (none / 0) (#18)
    by Socraticsilence on Mon May 10, 2010 at 12:24:35 PM EST
    has values (when viewing Obama) other than attacking the President.

    Jim's a good egg... (none / 0) (#25)
    by kdog on Mon May 10, 2010 at 01:34:05 PM EST
    with warped views...and I'm sure (or I'd hope)he'd say the same about me.

    I can't help but like the guy.


    Love you too, bro (none / 0) (#26)
    by jimakaPPJ on Mon May 10, 2010 at 02:05:37 PM EST
    One head case to another....

    I'm just finding it funny that the Left got what they wanted, Obama... And now Obama is turning into their worst nightmare. Still in Afghanistan and Iraq. Didn't do single payer health care.. Has managed to PO the middle to the point the Repubs have a shot at Congress...

    Who would have thunk it..... Certainly not me.

    And Obama hasn't even flown over Nashville.

    Of course TN didn't go for Obama and you don't get anything from the machine unless you vote right. (And yes, I lived in Chicago for some years and know how it works.)

    Maybe that'll answer everyone's questions..

    Still missing you in Tunica. We could do some catfish and BBQ ribs...

    And HI Squeak! See you still have your stinger out.


    "One head case to another...:" (none / 0) (#27)
    by kdog on Mon May 10, 2010 at 02:29:31 PM EST
    Truer words never spoken!

    I think it is more a case of the left not really knowing what it is they were buying, aka buying into the advertising campaign...a rookie mistake, to be sure.

    I'd say the left has learned it lesson, but that ain't true...they'll line up behind whatever loser Team D trots out in '10, '12, and beyond.  


    The World According to PPJ (none / 0) (#28)
    by squeaky on Mon May 10, 2010 at 03:08:47 PM EST
    Still in Afghanistan and Iraq. Didn't do single payer health care.

    Odd that you are pointing out the campaign promises he has kept.

    He promised increased focus on Afghanistan and the Pakistan border. He promised to get out of Iraq and that is on schedule, and he never promised anything close to single payer HC.


    We are talking here about (none / 0) (#29)
    by jimakaPPJ on Mon May 10, 2010 at 05:38:58 PM EST
    what his most dedicated supporters wanted him to do and thought he would do.... They thought he was lying to get elected..

    Kinda of a twist, eh?



    Wrong (none / 0) (#32)
    by squeaky on Mon May 10, 2010 at 05:58:43 PM EST
    Only those who were deluded and living in a fantasy world, kind of the parallel universe to yours, would imagine that he made any kind of promise about reducing troops in Afghanistan or a single payer health plan.

    As far as the promise to remove troops from Iraq, well your parallel universe, aka fantasy world has taken over on that one.

    He is on right on schedule.


    I see that you still can't read (none / 0) (#34)
    by jimakaPPJ on Mon May 10, 2010 at 08:33:17 PM EST
    My point was that his most loyal minions THOUGHT he was lying and that he ACTUALLY wanted to do the things mentioned.

    Turns out they were wrong.


    Wow (none / 0) (#38)
    by squeaky on Mon May 10, 2010 at 08:51:56 PM EST
    Well seems to me that even his most deluded followers, did not have as wild fantasies as you and your fellow wingnut extremists had.

    Secret Muslim with no birthcertificate, Manchurian candidate... to name a few..


    but then again, ya'll still believe that stuff over at tall cotton...


    hehe (none / 0) (#40)
    by jimakaPPJ on Mon May 10, 2010 at 11:50:24 PM EST
    Your string is so easy to pull...

    The thing is, you believed your fantasy...


    Really? (none / 0) (#42)
    by squeaky on Tue May 11, 2010 at 12:01:04 AM EST
    And what fantasy was that?

    I did not know that (none / 0) (#20)
    by MKS on Mon May 10, 2010 at 12:42:12 PM EST
    When did Obama get the power to amend the Constitution?

    FISA? (5.00 / 1) (#24)
    by Cream City on Mon May 10, 2010 at 12:50:24 PM EST
    I fully expect that a the answer to (5.00 / 1) (#9)
    by MO Blue on Mon May 10, 2010 at 11:38:05 AM EST
    this and most real questions asked during the hearings will be answered by the standard:

    Since this is a question that might come before the court, I cannot answer the question.

    It will be followed by the standard declamation that she is a strong supporter of stare decisis.

    My guess is she'll side with Obama (none / 0) (#1)
    by Dadler on Mon May 10, 2010 at 10:50:57 AM EST
    Call me crazy.


    I'm asking these questions because IANAL (none / 0) (#2)
    by MO Blue on Mon May 10, 2010 at 10:51:20 AM EST
    Hasn't the SCOTUS already provided a loop hole to suspend Miranda rights and isn't the administration already taking advantage of this in interrogations?

    "There are exceptions to Miranda and that is one of the ways in which we conduct our interrogations of terrorism suspects, it's what we did with Abdulmutallab, it's what we did with Shahzad," Holder said. (See video below)

    As Holder went on to note, the Supreme Court, which recognized the public safety exception in the 1984 Quarles case, has never laid out how long questioning can last under the exception. link


    According to this post, this administration has taken this exception from what "you're typically looking at something that's done at the instance of arrest for a very short period of time -- just a couple of questions" to "50 minutes and a few hours respectively."

    It also seems to my very limited understanding, that under New York v. Quarles, evidence obtained using this exception was allowed to be introduced into evidence.

    Yep. Frankly, I'd be surprised if the courts ruled (none / 0) (#5)
    by Dan the Man on Mon May 10, 2010 at 11:27:05 AM EST
    against the administration.  The administration would probably make the ticking time bomb argument against the "terrorists" and that's why public safety justified the absence of Miranda.

    Maybe Al Franken will ask Kagan (none / 0) (#3)
    by oculus on Mon May 10, 2010 at 11:20:33 AM EST
    about this.  I doubt anyone else will mention it.

    I doubt it (none / 0) (#11)
    by gondobie on Mon May 10, 2010 at 11:50:42 AM EST
    Senator Franken is a team player.  I like him, quite a bit; but, I don't think he will do anything that would risk embarrassing the Admin.

    Maybe Bernie Sanders will ask; but I doubt that.

    Not very many civil libertarians in the US Senate these days (there never have been many, but there are even fewer now).


    Sanders isn't on the Judiciary Committee. (5.00 / 1) (#12)
    by oculus on Mon May 10, 2010 at 11:56:47 AM EST
    Franken asked some questions of Judge Sotomayor other Dem. Senators did not.  

    Oh yeah, that's right. Sorry. (none / 0) (#13)
    by gondobie on Mon May 10, 2010 at 12:06:06 PM EST
    But, Arlen Specter is--and as pointed out in a newer diary here, he voted against her for SG precisely because he couldn't get info on her positions on issues.

    One-point-three cheers for Arlen!


    Specter was a Republican then. (5.00 / 1) (#16)
    by oculus on Mon May 10, 2010 at 12:13:43 PM EST
    Hope you're correct though.

    She'll BS in hearings, vote YES to limit rights (none / 0) (#6)
    by Yes2Truth on Mon May 10, 2010 at 11:27:18 AM EST

    It's been a very long time since anyone who isn't
    on THE team got to be a player.  Why anyone thinks
    or believes Kagan will be any different is beyond

    Over at Volokh (none / 0) (#14)
    by jbindc on Mon May 10, 2010 at 12:07:26 PM EST
    Orrin Kerr had this to say about this:

    As a legal matter, I find this idea puzzling.  Neither Miranda nor the Quarles public safety exception to it are statutory.  Rather, they are constitutional decisions that the Supreme Court has adopted.   And the Supreme Court has been pretty clear that Miranda doctrine is up to the Justices, not Congress: As the Court put it in Dickerson v. United States,  530 U.S.  428 (2000), "Miranda announced a constitutional rule that Congress may not supersede legislatively."

    So, could this be more window dressing to appease conservatives in an election year?

    Most likely (none / 0) (#30)
    by jimakaPPJ on Mon May 10, 2010 at 05:41:32 PM EST
    But it isn't going to fly. Too many other flies in the honey.

    it turns out, (none / 0) (#15)
    by cpinva on Mon May 10, 2010 at 12:09:04 PM EST
    everything i was taught about the constitution is wrong. i was taught that any actual changes to the document must be by amendment, a very difficult (intentionally so) thing to do, mere statutes wouldn't suffice. not that congress and state legislatures haven't tried, but the courts have stood in their way.

    the last administration didn't even bother with the nicety of legislation, it just issued executive orders, and loaded the courts with rightwing ideologues. the present one appears ready to take the next logical step, and attempt to embed constitutional violations in the law.

    "pols are pols, they do what they do." after a while, they all start to merge (much like my small, white car, in a big parking lot), becoming indistinguishable from each other.

    My Con Law prof (none / 0) (#17)
    by gondobie on Mon May 10, 2010 at 12:21:27 PM EST
    was apparently wrong about everything, too; as was my Crim Pro prof.  Oh well, I guess I had better read up on jury nullification...

    Yes, in that same ABC This Week program, (4.00 / 1) (#23)
    by KeysDan on Mon May 10, 2010 at 12:46:45 PM EST
    Attorney General Holder trailblazed new rules of evidence, as well. In discussing (yes, discussing) the Times Square attempted bombing case, he said "we've now developed evidence that the Pakistan Taliban was behind the attack."  "We know that they helped facilitate it.  We know that they PROBABLY helped finance it, and that he was working at their discretion."  Boy, that seals it for me, case closed, throw the key away on the guy. After all, we know that they probably financed it.  Who is Holder's new advisor these day, Rummy?

    Look, don't get excited (none / 0) (#31)
    by jimakaPPJ on Mon May 10, 2010 at 05:43:53 PM EST
    We all know the guy was PO'd over his mortgage and that was the cause.....

    Appreciate the cyber-calmative, (none / 0) (#33)
    by KeysDan on Mon May 10, 2010 at 07:08:42 PM EST
    I am resting much easier probably now knowing that it is probable that the Pakistan Taliban may be behind this probability and that possibly our war in Afghanistan will probably get to the root cause,but then I don't mean to drone on about all the possibilities.  And then I probably will not have to worry about those naturalized citizens becoming disgruntled and becoming a terrorist.  Then, I will be left to worry about those white citizens who are disgruntled over taxes and fly their planes into buildings housing the IRS, although in that case Miranda warnings were not needed and the evidence was evident.

    Well, if we had some ham we would have some (none / 0) (#35)
    by jimakaPPJ on Mon May 10, 2010 at 08:39:08 PM EST
    ham and eggs if we had eggs.

    And so far those white citizens flying airplanes into IRS offices are a minority of 1. And if Holder meant what Obama wants we can forget about the Miranda thingee for all those suspected terrorists. Especially the ones who can't confess fast enough......


    I honestly thought (none / 0) (#36)
    by Emma on Mon May 10, 2010 at 08:41:14 PM EST
    that guy was African American.  Am I wrong?

    ooops (none / 0) (#37)
    by Emma on Mon May 10, 2010 at 08:42:15 PM EST
    I think I am wrong.  I think the guy killed was African American.  Right?

    Man, I can't keep this war on terror stuff straight.


    The Undy bomber (none / 0) (#39)
    by jimakaPPJ on Mon May 10, 2010 at 11:48:55 PM EST
    is African.

    The TS bomber is Pakistani naturalized American.

    Aint immigration doing a great job?


    Oh, you meant the nutcake who attacked the (none / 0) (#41)
    by jimakaPPJ on Mon May 10, 2010 at 11:57:38 PM EST
    IRS... nope. He was white. Had a many page screed listing all his problems with the IRS...

    The easy way to keep it straight is this.

    If it's about money or abortion it's probably a white guy born and raised in the US.

    If it's about religion it's probably a Muslim, national origin, usually Africa or ME although the First Gen'ers got a running start at Ft Hood.


    Well, your thoughtful system to help us (none / 0) (#43)
    by KeysDan on Tue May 11, 2010 at 09:58:55 AM EST
    from mixing up our terrorists has a few bumps to be ironed out. If it is about abortion, it is also, probably, about religion (cf. Eric Rudolph, the Olympic Park Bomber, who was acting out against abortion given his Catholic and White Supremacist Christian background).  And, Eric's terrorism included the fact that he never warmed to the "homosexual agenda".   He entered our criminal justice system, was given his Miranda rights, no citizenship revoked, and he is now in jail serving five life sentences. Of course, we have to fit Tim McVeigh into your memory scheme: his was the deadliest act of terrorism in this country up to 9/ll, revenge for the government's action at Waco, for starters. Tim was executed.   Now, let's see how do we handle Jose Padilla?  He fits into the Muslim category OK, but the national origin?  Oh, let's think more about this one.

    The is answer is: very, very unlikely (none / 0) (#19)
    by MKS on Mon May 10, 2010 at 12:40:46 PM EST
    Kagan was Editorial Chairman for the student newspaper at Princeton.

    Under her leadership the paper wrote this:

    In her capacity as editorial chairman during her junior and senior years, Kagan spent nearly every evening at the `Prince' newsroom. But Bernstein cautioned that Kagan likely did not write all the editorials. "That wasn't her style ... She was a very collaborative person," he said.

    One set of unsigned editorials published in the spring of 1980, written in response to the federal government's discussion of reinstating draft registration, attacked the militaristic identity the country was headed toward. The nation was "unfortunately" moving toward "an era in which myopic and over-sensitive `national pride' precludes the thoughtful search for alternatives to an unnecessary draft registration," it said.

    The pieces also criticized President Jimmy Carter, claiming that "the president has always been a better campaigner than a leader, and he is flagrantly using the present crisis to further his own chances for reelection ... In riding the wave of public patriotism and mass support for registration shown in the polls, the president is shutting his eyes to the dangers inherent in his own policy." In July of that year, Carter signed a proclamation that reinstated the requirement that males aged 18-26 register with the Selective Service.

    That is criticism of a Democratic President during a time of national crisis with the Iranian Hostage crisis and the Soviet Invasion of Afghanistan.

    Kagan is clearly brilliant.  She, I think, has good values....She could be a brilliant Justice....A liberal Justice....

    And Michael Steele is criticizing her for saying the original Constitution was defective....I guess they still support slavery.

    Fifth Amendment and Supreme Court rulings (none / 0) (#21)
    by Abdul Abulbul Amir on Mon May 10, 2010 at 12:45:17 PM EST
    Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling.

    Does the Congress have the right to limit Fifth Amendment rights by passage of a statute?

    Fifth Amendment and Supreme Court rulings are not one in the same.  Pretending they are is silly.

    The Fifth Amendment does what (5.00 / 1) (#22)
    by Big Tent Democrat on Mon May 10, 2010 at 12:46:21 PM EST
    the SCOTUS says it does.

    Marbury v. Madison.