Grade D-: Flawed Research from the Law Library of the Library of Congress

Janine D'Addario, Coordinator of the Office of Communications of the Congressional Research Service, was kind enough to confirm what many people now have noted: the attribution of bad research to that office was wrong. I am delighted, as I told her, to hear that the report was not the product of the "nonpartisan Congressional Research Service".

Those quotation marks, by the way, refer to comments by neither Ms. D'Addario nor me. They enclose the quoted "speech" of US Representative (R-Ill) Aaron Schock, still posted as of 12:30 PDT on his official congressional website, that wrongly characterize the source of the analysis purporting to give the Honduran Congress a leg to stand on in the question of the constitutionality of their actions on June 28. Visit it and you can also see the box with the link to "Schock Honduras CRS Report".

Rep. Schock's press release makes clear that there remains a problem with Bad Research from a Federal agency, even if the source is not the highly-respected CRS. Either we have to conclude that the research of the Law Library of the Library of Congress is generally unreliable, or that this specific report should never have been approved for release.

As a scholar, I would much prefer not to have to throw into question all research emanating from an office of the Library of Congress. But until someone there issues a statement retracting the report, based on the amply documented and easily substantiated sources showing the basic facts of law are mistaken, the full faith of the Library of Congress is behind a piece of research I would not accept for a term paper by an undergraduate.

To recap: the report, again in the words of Rep. Schock's office "concludes that the removal of former Honduran President Manuel Zelaya was legal and Constitutional". The Law Library report does so by proposing a novel legal theory, not actually articulated by the Honduran Congress itself on June 28 or since. The researcher virtually had to do this, because the stated bases of the June 28 actions would not meet legal or constitutional scrutiny.

This is not just my opinion. Armando Sarmiento, whose commentaries on this report published on quotha.net are required reading, describes the legal bases for refuting this report. Add to these analyses the opinions of US, Spanish, and Honduran constitutional law experts who find the coup violates the Honduran Constitution previously cited here. And, as Jennifer Moore explains in a report reproduced at quotha.net, a research group representing the American Association of Jurists, the National Lawyers Guild, the International Association of Democratic Lawyers and the International Association Against Torture, came to the same conclusion.

The Law Library may have rules against citing such external sources, or may have simply been interested in answering the narrowest possible version of a set of specific questions by consulting documents in its databases. The basis for the conclusion by the Law Library researcher is a section of Article 205 of the Honduran Constitution that was declared unconstitutional by the Honduran Supreme Court in 2003. A search of the Law Library would not have produced the Supreme Court ruling, because the Honduran Congress refused to publish it, as explained by Sr. Sarmiento in response to my inquiries:

El congreso ordenó que el fallo de la Corte Suprema del 7 de mayo de 2003 no fuese publicado ...sin embargo, el efecto legal es obligatorio.

Congress ordered that the verdict of the Supreme Court of May 7, 2003, would not be published ...nevertheless, the legal effect is obligatory.

Ley de Justicia Constitucional en su Artículo 94 menciona que “La sentencia en que declare la inconstitucionalidad de una norma será de ejecución inmediata, y tendrá efectos generales y por tanto derogará la norma inconstitucional, debiendo comunicarse al Congreso Nacional, quien lo hará publicar en el Diario oficial la “Gaceta”.

The Law of Constitutional Justice in its Article 94 mentions that "The sentence in which the unconstitutionality of a norm will be of immediate execution, and will have general effects and therefore it will derogate [abolish] the unconstitutional norm, having to be communicated to the National Congress, which will publish it in the official newspaper, "La Gaceta".

Sr. Sarmiento adds that

Aunque el congreso se haya negado a publicarlo el fallo de la Corte Suprema el mismo está vigente desde el punto de vista jurídico.

Even though the congress had refused to publish the verdict of the Supreme Court the same is in force from the juridical point of view

That is, rulings of unconstitutionality go into effect immediately; they are not contingent on publication, unlike laws, which do not become official until they are published. This is part of the difference between the role of Congress, which is to make laws (that then need to be shared with the people by publication) and the Supreme Court, which has the role of interpreting the constitution, by ruling laws or even parts of laws unconstitutional, rulings which immediately invalidate these laws and any action based on them.

The key passage in the Supreme Court ruling of May 7, 2003, that invalidated the constitutional amendment attempting to establish Article 205, section 10, says

si bien el congreso Nacional de la República tiene la potestad de reformar la Constitución en las materias que el poder constituyente le ha conferido expresamente: esa potestad debe ejercerse respetando los límites constitucionales establecidos y la esencia de la de la Constitución. Esos límites no fueron respetados por el Congreso al introducir irregularmente, por medio de esa adición, una nueva excepción consistente en una norma accesoria adjetiva sin relación con alguna norma constitucional principal sustantiva por la que el Poder constituyente haya conferido al Congreso Nacional la atribución de interpretar la Constitución.

given that the National congress of the Republic has the power to reform the Constitution in those areas that the constituent assembly has expressly conferred on it: this power should be exercised respecting the established constitutional limits and the essence of the Constitution. Those limits were not respected by the Congress by introducing, irregularly, by means of this addition, a new exception consisting of an accessory adjective norm without relation to some principal substantive constitutional norm through which the constituent Power might have conferred on the National Congress the attribution of interpreting the Constitution.

In other words: the Congress cannot just add a power that was not given it in the original Constituent Assembly that produced the 1982 constitution. It can amend those parts of the constitution that deal with powers it has, but cannot smuggle in a whole new power as a subsection of a section that did not give it that power.

We are dealing here with a struggle by the Honduran Supreme Court-- handicapped by being re-appointed one term at a time (formerly four years, now seven) by a process requiring unilateral approval by another branch of government-- to preserve the separation of powers that is key to a balanced government.

The finding by the Supreme Court was absolutely explicit about this being based on separation of powers. Their verdict adds

Que no se desconoce que el Congreso Nacional ha realizado interpretaciones a la Constitución; sin embargo, en consonancia con los artículos 373 y 374, de la misma no puede atribuirse al Congreso Nacional esa facultad en detrimento de las atribuciones de los otros Poderes del Estado; pues ello afectaría la forma de gobierno, al vulnerar la independencia que debe existir entre ellos y por ende estableciendo relaciones de subordinación con relación al Legislativo, pues ello daría origen por parte del Congreso a leyes- sentencias, disfrazadas de normas interpretativas de la Constitución.

That it is not unknown that the National Congress has made interpretations of the Constitution: nonetheless, in consonance with Articles 373 and 374 of the same [Constitution] the National Congress cannot attribute to itself this faculty in detriment of the attributions of the other Powers of State; since that would affect the form of government, weakening the independence that should exist among them and as an outcome establishing relations of subordination in relation to the Legislative [Branch], since that would give origin on the part of Congress to laws, sentences, disguised as interpretations of the Constitution.

Sr. Sarmiento notes in closing that

Un detalle importante es que después del falló del 7 de mayo de 2003 el congreso NO HA REALIZADO NUEVAMENTE NINGUNA INTERPRETACIÓN DE LA CONSTITUCIÓN.

An important detail is that after the verdict of the 7th of May of 2003 the Congress HAS NOT NEWLY CARRIED OUT ANY INTERPRETATION OF THE CONSTITUTION.

Including, pointedly, on June 28, 2009, when the analyst for the Law Library of Library of Congress thinks this would be the only way they could have considered what they were doing as legal. Which means the Honduran Congress could not think they could redefine the power to censure Congress does have under Article 205, section 20, which deals only with administrative conduct, to extend to the removal of a President from office, a power they do not have, and they did not even try to make that invalidated claim. It took a US researcher to do that.

If the Law Library had to rely on its own documentary resources, it should not have allowed citation of personal communications from a single, impeachable source with an open interest in a specific conclusion. Once one such source was cited, many others willing to explain the finer points of constitutional law, reaching contrary conclusions, were available. Sr. Sarmiento's reply to my inquiries came within hours, and with rich specific detail citing published records.

I give the Law Library a D-

They did correctly note the unconstitutionality of expatriating President Zelaya, and did correctly note that this expatriation interrupted the legal procedures by which the Supreme Court was beginning its hearings on the charges brought by the Public Prosecutor. But the Law Library report was confused about the separation of duties of the Armed Forces (who should not have carried out the raid) and the National Police (who are charged with enforcing court rulings), missing the relevant articles of the Constitution entirely. And it engaged in the construction of a spurious rationale for what the Congress might have been doing, which it did not do because the specific power claimed in Article 205, section 10, had been ruled unconstitutional.

In my teaching practice, I give students a chance to revise their first drafts. I am happy to provide the same option to the Law Library of the Library of Congress. I will update this blog when and if I receive a statement from them.