Constitutions

To me, the strongest reason to think that the Court would uphold the jurisdiction-stripping provision is that the Court already reviewed such a provision, in Hamdan, and their only question was "when does it start?"

Also, recall that the law wouldn't preclude any review at all by the courts. Instead, it would provide that an alleged enemy combatant would have to go through the military commission, whose decsion could be appealed to the DC Circuit.

(Don't hold me to this; I haven't followed the nitty gritty involved.)

Really?

Don't American citizens have rights under the constitution that can't be abridged by legislative action? Not without amending the said constition, i'd have thought. Could a supreme court endorse a contrary view?

Article 3 gives the right to trial by jury in criminal cases, for instance. See also the 6th amendment.

Article 6 makes treaties we've signed, like Geneva conventions, the law of the land

Enough's been said about the 4th amendment, see also the 5th. Also, see 8th (cruel and unusual punishment)

What about the 14th amendment, which states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I forgot to begin by pointing out the obvious, that this piece of turd legislation suggests some pretty outrageous things about what US citizens could be subject to...

Per Bruce Ackerman, Yale LS (http://www.latimes.com/news/opinion/la-oe-ackerman28sep28,0,619852.story?coll=la-opinion-rightrail)

By Bruce Ackerman, BRUCE ACKERMAN is a professor of law and political science at Yale and author of "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism."
September 28, 2006

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

Who will have standing to file a lawsuit against this bill if it passes? A U.S. citizen who has been plucked off a flight and thrown into a black hole? How will such a person get access to the courts or a lawyer to challenge the law? Much of the work in Hamdan and other cases has been done by the attorneys representing the prisoner.

Perhaps if someone disappears, the dots will be connected. But I doubt that the legislation has any sort of reporting requirements about who is declared "the enemy."

It looks like court-stripping has never been enacted in any meaningful sense. So this would be new ground. The closest we've come is the jurisprudence on the Religious Freedom Restoration Act, City of Boerne v Flores. The RFRA attempted to "overturn", judicial precedent through legislative action, but it failed. But even that case does not directly address the question of the specific power of Congress to overturn judicial decisions or limit jurisdiction.

Far more odious is the bill's retroactive terms, which is essentially the President pardoning himself and granting the CIA amnesty. Query whether, if Congress repeals the bill, the DoJ can go back and prosecute CIA operatives or their superiors.

"To me, the strongest reason to think that the Court would uphold the jurisdiction-stripping provision is that the Court already reviewed such a provision, in Hamdan, and their only question was "when does it start?""

I think you misunderstand the way the Court works. The goal is always
to decide a case on the narrowest grounds. They determined that the
jurisdiction-stripping provision didn't apply to cases already in
progress, such as Hamdan itself. And having done that, they didn't
need to answer the question of whether the jurisdiction-stripping was
constitutional, because that was no longer relevant to the case.

As I understand it, there is a dispute as to whether the habeas corpus rights of enemy combatants stem from federal law, or the constitution. The court stripping provision would only be valid if the supreme court holds the former case to be true.

As long as he is president he can pardon anyone he wants to. (Probably including himself, although I'm pretty sure that's never been tested.)

"Also, recall that the law wouldn't preclude any review at all by the courts. Instead, it would provide that an alleged enemy combatant would have to go through the military commission, whose decsion could be appealed to the DC Circuit."

Maybe. But it seems as though the executive can hold someone
designated as "a really bad person" - no, sorry "enemy combatant" -
as long as they like without ever trying them. In which case
habeas corpus is the only way to get into court.

I think this gets struck down by SCOTUS as long as Kennedy, Stevens,
Souter, Ginsburg, and Breyer are around. Maybe even Scalia and/or
Roberts would balk at the nakedness of the power grab - if this
stands, then the whole legal system becomes a joke because the
executive can just skip it. However, it will take many months and
maybe even years to reach SCOTUS.

I'm sure I can be corrected on this, but memory tells me that the only times the revocation of judicial review bit in the Constitution has ever been used has been during this Administration. It had been discussed in theory, but never put into practice.

"And, of course, there's no particular reason to think that the Supreme Court's five conservative justices disagree with America's conservative politicians about this."

The one reason that I find myself clinging to (like a drowning man and a life-preserver) is Scalia's "dissent" in Hamdi (not Hamdan, but Hamdi - Scalia was on the wrong side of Hamdan.)

In Hamdi, Scalia repeatedly cites Blackstone and the Magna Carta in saying that the court's majority hasn't gone far enough in its defense of Habeas form the machinations of the Bush White House (hence the reference to his opinion as a "dissent").

Here's Slate Dahlia Lithwick on Hamdi:
http://www.slate.com/id/2102895/entry/2103043/

and here's Scalia's dissent:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696&friend#dissent1

I hope they're something to cheer you up on an otherwise dark, dark day.

But Hamdi involved a U.S. citizen. The case law (Yamashita and, what's it called, Eisentrager?) provides Scalia enough support for the proposition that aliens don't enjoy habeas rights, tho maybe that's just overseas.

I hear there's common-law precedent for habeas extending to aliens in Merrie England, which is supposed to be the kind of principle Scalia relies upon.

For a more sanguine view on the issue raised by Ogged & Matt, see CharleyCarp at ObWi.

rather than speculation, how bout someone break out hart & wechsler? (only somewhat joking.)

"As I understand it, there is a dispute as to whether the habeas corpus rights of enemy combatants stem from federal law, or the constitution. The court stripping provision would only be valid if the supreme court holds the former case to be true."

Eh? Article 1, Section 9 of the constitution: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

No rebellion, no invasion - no suspension.

"To the argument. . . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are." -- William H. Rehnquist

In other words, Matt is correct that, regardless of whether it is formally true that the bill is unconstitutional, "there's no particular reason to think that the Supreme Court's five conservative justices disagree with America's conservative politicians about this."

In the first grafs of his dissent, Scalia says that habeas may be suspended "temporarily" under article 1 section 9. Also note that Hamdi applies to a US citizen. It's unclear whether he would apply it to non-US citizens, whether the apparenty permanence of the new law would be a problem, or whether the Geneva Conventions, having already been ratified, constitute the law of the land.

I can't see Justice Kennedy voting for this stuff.

Hey, I didn't say Hamdi was 'on point' or 'controlling'; I said it was the last hope of a drowning man!

I think the only part that stands a chance of being shot down by the Court would be the habeas provisions.

think you misunderstand the way the Court works. The goal is always
to decide a case on the narrowest grounds. They determined that the
jurisdiction-stripping provision didn't apply to cases already in
progress, such as Hamdan itself. And having done that, they didn't
need to answer the question of whether the jurisdiction-stripping was
constitutional, because that was no longer relevant to the case.

Not quite correct. While courts often rule on narrow grounds, they can and sometimes do rule on broader grounds. Moreover, if something is of questionable constitutionality, you'll usually see a footnote along the lines of "this provision appears to be on questionable constitutionality; however, there's no need to decide that issue today, since we can rule on narrow grounds". That wasn't the case in Hamdan.

"In other words, Matt is correct that, regardless of whether it is formally true that the bill is unconstitutional, "there's no particular reason to think that the Supreme Court's five conservative justices disagree with America's conservative politicians about this.""

Surely Rehnquist's point was that "in the long run", the majority determines what the constitution says (through amendments) and thus determines what minority's rights are. We haven't had a constitutional amendment stripping habeas corpus, so I don't see why the conservative judges should necessarily agree with the conservative politicians.

BTW, I'm not sure why there is discussion here about American citizens. By its terms, the habeas stripping section applies only to aliens.

Surely Rehnquist's point was that "in the long run", the majority determines what the constitution says (through amendments) and thus determines what minority's rights are.

No, not really. Historically, one of the ways the majority imposes its will, over time, is by appointing ideologically friendly judges.

For example, there's little dispute that the cases around the time of the New Deal (back when FDR threatened to pack the Court) changed our understanding of the Commerce Clause and the scope of federal power. You can, of course, believe that the modern view was correct all along, but it was still a change. Many laws that get passed today would have been struck down by the Supreme Court of 100 years ago, but there was no amendment passed in the meantime that would account for the difference.

What changed is simply that the majority of voters, in response to the problems of the Great Depression, came to favor expanded federal power to deal with those problems, and the courts adapted. And in recent years, you see a somewhat lesser conservative pushback against this notion.

The Founding Fathers most certainly understood that a determined majority would always get its way in the end. What they tried to do is create a system where there would be procedural protections for minorities against the passions of the moment. Even a constitutional amendment is notably hard to pass. But a determined majority, historically, always seems to get its way over time, whether or not it can get an actual amendment passed.

Rehnquist, who knew more about the history of the Supreme Court than he ever knew about the law itself, was surely just making an observation based on history.

It looks like court-stripping has never been enacted in any meaningful sense. So this would be new ground.

Not true--this has been done before, most recently (I think) by the Norris-LaGuardia Act.

The issue isn't whether a right to a writ of habeas corpus exists but the identity of the court that is going to entertain the petition for the writ. The Constitution expressly empowers Congress to establish inferior federal courts as well, as the appellate jurisdiction of the Supreme Court, and its well established that that authority includes the authority to limit the jurisdiction of those courts (Art. III, sec.1). However, Congress has very limited authority to suspend the writ of habeas corpus (Art. I, sec. 9). My understanding is that Congress may strip the inferior federal courts of jurisdiction over writs of habeas corpus but may not eliminate the privilege of habeas. What does this mean? I think that would leave a detainee with the option of petitioning a state court of general jurisdiction (New York Supreme or California Superior Court for example) for a writ. It also strikes me that the US Supreme Court might find a jurisdiction stripping statute unconstitutional if the effect of the statute was to suspend the right of habeas corpus. The right to a writ of habeas corpus is, after all, fundamentally a right to a remedy.

The Norris-La Guardia Act prevented courts from issuing injuctions.

The Patriot Act has a provision removing its "secret court" decisions entirely from appellate review. Here "habeus corupus" is withdrawn.

It's a terrible, terrible trend. Even absent the torture crap.

Yea: 65; Nay: 34. America: it was kinda nice, while it lasted.

The part that puzzles me is this:

Congress passes a statute that it can override a presidential veto with a simple majority in both houses, & adds a proviso that it strips the courts of power to hear suits challenging that provision.

OBVIOUSLY that proviso can't stand, or else judicial review doesn't exist any more.

So someone needs to explain that bit to me.

Congress can regulate the appellate jurisdiction of the Supreme Court. And it can regulate the jurisdiction of the lower federal courts, indeed, it doesn't even have to establish lower federal courts if it doesn't want to. While all this is straight out of the text of the Constitution, it's absurd to think the Founders intended for these provisions to be used in combination, to strip the entire judicial branch of jurisdiction. Indeed, if this theory were valid, Congress could attach a paragraph to every single bill saying "no court shall have jurisdiction to review the constitutionality of this bill." It would be no different in effect from amending the Constitution without going through the amendment process.

It's an uncommonly silly result and a silly theory that no one in their right mind would favor, if it wasn't being urged as a way to achieve conservative political objectives like school prayer and keeping courts from interfering with the Pledge of Allegiance. Read Federalist 78 sometime and try to tell me that Hamilton envisioned giving Congress complete authority to determine which laws would be subject to judicial review.

As long as he is president he can pardon anyone he wants to.

The bill in question isn't an exercise of presidential pardoning power; it's an ex post facto law which serves the same function as a pardon. As such, it's pretty damn unconstitutional.

(Probably including himself, although I'm pretty sure that's never been tested.)

The one person the president can't pardon is himself; otherwise he really would be above the law (and Nixon would never have had to resign).

The prohibition on denial of Habeas Corpus, except in cases of rebellion or invasion, is in Article I of the US constitution. Accordingly, it is a limitation of Congress's power to legislate. Reading that provision and Article III (allegedly granting Congress the power to limit jurisdiction of federal courts) together, it should be clear that the Habeas provision of Article I is a limitation on Congress's power to limit jurisdiction of federal courts. In other words, any Congressional restriction on Habeas--except relating to rebellion or invasion--is unconstitutional. Obviously.

"it's an ex post facto law which serves the same function as a pardon. As such, it's pretty damn unconstitutional."

Unless I'm mistaken, the ban on ex post facto laws only prevents the creation of laws that make past acts crimes, not laws that make past crimes into legal acts.

"BTW, I'm not sure why there is discussion here about American citizens. By its terms, the habeas stripping section applies only to aliens. "

Posted by: Al

Not so. The habeas stripping is for Unlawful Enemy Combatants (UECs). While the more explicit provision of who a UEC is defines them as foreign, there is another provision which allows the establishment of tribunals by the president or secdef which would allow anyone to be labelled as a UEC, regardless of citizenship.

I am still not sure I understand the argument, Njorl. Let's say that the President detains a person and says he is an UEC. Can that person then challenge his detention through habeas proceedings? If not, why not (given that the provision stripping the courts of jurisdiction on habeas only applies in the case of aliens)?

Constitutions are grand and glorious things, and only this week Justice Breyer and former Justice O'Connoner graced the talk shows with their views on "judicial independence."

Judicial independence under some sort of definition has been recognized in American polity, and right now looks to be the most viable recourse against the Torture Bill - so let's not discount it too badly in this context.

Nevertheless, let us also remember Animal Farm, where Orwell demonstrates how grand sounding syllogisms can be twisted to effect the opposite of what one might suspect. Lawyers are trained so to twist syllogisms, federal judges tend to be particularly good lawyers, and such twisting not only can happen here but actually already has - see, e.g., Plessy v. Ferguson, the notorious "separate but equal" decision. There have been numerous others, such as Dred Scott; Lochner v. New York, which held most progressive social reform legislation unconstitutional; and the cases upholding the internment of Japanese civilians during WWII.

Such sorts of twistings are not limited to American polity or jurisprudence. The Spanish Inquisition, for example, somehow was reconciled with Christian charity.

The historical record demonstrates that England, which has no written consitution, nevertheless has achieved and maintained a set of civil liberties which overall is very good by our standards; while the Soviet Union, which had a constitution asserting numerous rights, was a hideous tyranny.

So there is something about the fundamental fabric of a society that gives rise to civil liberties. They are not the function of judicial determinations.

And those of us who care about liberty must tend to that fabric first, foremost, and above all else.

Nevertheless, it is correct that the appropriate and necessary response to the Torture Bill is to challenge it in court.

the court gets to determine whether it has jurisdiction, so congress can do whatever it wants in the statute but the issue will still be decided by the courts, because the courts themselves rule on whether they have JS, a party has standing, whatever (and even if congress removes all inferior federal courts, there would still be a SCOTUS).

people seem to be ignoring the very real differences between application to non-citizens and citizens. the law seems very likely constitutionally as to the former, and even if unconstitutional as to the latter, a court could easily fix that by excising the bit about permitting a tribunal to determine a citizen to be an enemy w/o habeas rights.

Raj, I don't its clear that article I, sec. 9 should be read as a requirement that if and when Congress exercises its power to establish inferior federal courts those courts must have jurisdiction to hear habeas petitions. Additionally, Art. III contains pretty clear limits on the original jurisdiction of the Supreme Court and entertaining habeas petitions is not within them. Anyway, it strikes me that (in theory) a detainee can file a state habeas petition as state courts of general jurisdiction would have subject matter jurisdiction (absent particular state laws). I would think that the personal jurisdiction issues would be trickier but not insurmountable. However, if a state habeas petition were not an option, then I would think that the habeas stripping provision would function as an unconstitutional suspension of habeas corpus.

While the habeas-stripping provisions of the MCA apply only to non-citizens, it seems there's no pressing need for it to extend to U.S. citizens.

Hamdi v. Rumsfeld did reaffirm the right of habeas corpus for U.S. citizens absent a suspension from Congress, but O'Connor and the plurality diluted the force of the Writ using the Mathews test (See Scalia's dissent; it was spot on).

IMHO, I believe that the writ of habeas corpus should apply to all persons within the custody of the United States. Perhaps a facile view of our law, completely disregarding relative precedent, but there it is.

The military commissions do grant a number of due process protections, which would comfort me somewhat if I knew there was any enforcement mechanism guaranteeing prosecution by military commission. As of now, none exists, leaving the continuing prospect of indefinite detention.

Good comment.Thanks admin.

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