Michael Wang v. Robert Masaitis, U.S. Marshal

dissenting.

Not every constitutional question requires judicial scrutiny or resolution. While the judiciary has the power to ad *1001 dress questions concerning the content of treaties, see Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534-35 , 111 S.Ct. 1489 , 113 L.Ed.2d 569 (1991), the question of whether the President may enter into treaties with non-sovereigns is left to the politically accountable branches of government. The majority announces a flawed and unnecessary constitutional ruling on this issue. Because we should dismiss Wang’s appeal for lack of justiciability, I must dissent.

I.

The majority rules that whether the President has the constitutional authority to enter into treaties with non-sovereigns, like Hong Kong, is a clear justiciable question under Baker v. Carr, 369 U.S. 186, 217 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). Instead of “discerning a nation’s sovereignty (a political question),” the majority states that we are only “examin[ing] the resulting status of Hong Kong” and “deciding] whether the Treaty Clause applies to Hong Kong as a constitutionally cognizable treaty party.” Maj. op. at 995. What constitutes a “constitutionally cognizable treaty…

Opinion by Judge HAWKINS; Dissent by Judge FERGUSON

We must decide whether, under the Treaty Clause of the Constitution, the United States may enter into a “treaty” with a non-sovereign entity, such as Hong Kong. We conclude that such a treaty is constitutional, and therefore uphold the validity of the “Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders” (“Extradition Agreement”). We also hold that a magistrate judge has jurisdiction under the Federal Magistrates Act to issue a Report and Recommendation (“R & R”) regarding a habeas petition without the defendant’s explicit consent.

I. BACKGROUND

In 2003, Hong Kong Magistrate Bina Chainrai issued a warrant authorizing Michael Wang’s arrest. The warrant listed eighteen counts of theft (adding up to $15,834,000 in Hong Kong currency) and two counts of dealing with property known or believed to represent proceeds of an indictable offense. After the Hong Kong Department of Justice formally requested Wang’s surrender pursuant to the Extradition Agreement, the United States filed a request to extradite him. United States Magistrate Judge Rosalyn M.…

416 F.3d 992 Michael WANG, Petitioner-Appellant, v. Robert MASAITIS, U.S. Marshal, Respondent-Appellee. No. 04-55772. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 7, 2005. Filed July 27, 2005. Hoyt Sze, Office of the Federal Public Defender, Santa Ana, CA, for the petitioner-appellant. Mark C. Krause, Office of the United States Attorney, Los Angeles, CA, for the respondent-appellee. Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CV-03-07470-CAS. Before FERGUSON, NOONAN, and HAWKINS, Circuit Judges. Opinion by Judge HAWKINS; Dissent by Judge FERGUSON MICHAEL DALY HAWKINS, Circuit Judge. 1 We must decide whether, under the Treaty Clause of the Constitution, the United States may enter into a "treaty" with a non-sovereign entity, such as Hong Kong. We conclude that such a treaty is constitutional, and therefore uphold the validity of the "Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders" ("Extradition Agreement"). We also hold that a magistrate judge has jurisdiction…