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Edited on Thu Jun-12-08 04:00 PM by igil
But that's not what was done, and there won't be one.
Bush won't avoid this.
One way out would be to declare the prisoners POWs. I think that might do the trick; maybe not, I'm only about half-way through the decision. The way I think they'll go is to allow the habeas petitions to be filed in absentia, and then argue that the writs should be denied on various grounds. This is problematic, for a few reasons. One is evidenciary: What kinds of evidence can the government use, because in some cases it's going to be inadmissible; in other cases, the government may not want to divulge the evidence; in other cases, the accuser or people involved won't be available. Does the judge decide to deny the writ in the case of poor, inadmissible, or unchallengeable evidence or grant it? Does the judge have to worry that the evidence, though inadmissible, is damning; does it matter that, formally speaking, the government has to make the case and the court isn't to concern itself with issues of security and practicality (sort of a strong position, but one many here would take)?
The only other ways out are to move the defendents beyond where the write of habeas corpus can practically or prudentially be applied, or to get Congress to rewrite the law and frame the issue in what would have to amount to an explosive and confrontational way, challenging SCOTUS and defending *. The former would generate incredibly bad PR, the latter is impossible with a dem-controlled congress. But what would the issue be?
SCOTUS framed it as a separation of powers issue, and, were the Congress of a mind to, this could be a full-blown constitutional crisis. SCOTUS has basically ignored a Constitutional right given to Congress, and taken that power to itself.
Constitution article III, sect. 2, par. 2: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. "
Presumably this functions as a restraint on the power of the Court. The Court is not all powerful; the Executive vetoes Congress, but can be overriden; the Court can rule, but have something removed from its jurisdiction. The Court--under Marsbury--can void Congress' pronouncements and certainly void Executive decisions. In principle, the Executive could simply fail to implement a court decision, with the judge squealing helplessly and ineffectually; or, the Legislative and the Executive could join forces to stack the court. The powers are separate, but certainly restrain each other.
However, in this case (p. 43-44), they write: "Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President,not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
"These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."
Do you see the problem? The Suspension Clause is critical in determining separation of powers: Neither the Legislative nor the Executive are permitted to decide when the Constitution is or is not to be implemented; that is the Judiciary's jurisdiction. However, the Constitution, under a fairly naive reading, says that Congress, while not voiding a law, can simply declare some Law or Fact to exceptionally not be under the Judiciary's jurisdiction.
So while it's a separation of powers case, it seems to be arguable that SCOTUS has decreed that it has a certain authority, and is jealous of that authority. Notably, Const. III, sect. 2 par. 2 is nowhere cited in the opinion, even though the legislative history has that as a strong motive for the law that they're voiding. Had they cited it, however, the paradox of their decision would probably have been too great.
The potential crisis is this: SCOTUS is the sole arbiter of what the Constitution means and where it applies; it's not clear this was so, early on, but since the early examples a are ambiguous and can be interpreted in the light of later, unambiguous decision, so be it. It has decided that one of the few (or the only) instance in which the Judiciary's had an exception made to its jurisdiction is, in order to avoid a separation-of-powers problem, unconstitutional: If the Judiciary is told it has no say, then it's a stunning repudiation of separation of powers. In other words, "The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain." Why must it be so? Because to hold otherwise is unthinkable, and would mean that SCOTUS/judiciary does not have unbridled authority to interpret the Constitution.
This sentence is wrong, I think: "To hold the political branches have the power to switch the Constitution on or off at will is quite another ... (it) would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President,not this Court, say “what the law is"." Now, I don't like Congress carving an exception to the Constitution and blindfolding SCOTUS; but I don't like SCOTUS being misleading. The exception clause doesn't say Congress decides the law (except to the extent they write it), per se, because that leads to tyranny; it says that there may be instances in which SCOTUS does not say what the law is, leading one to wonder who, then, would decide those matters of law and fact. SCOTUS has decided that since there can be no other, this part of the Constitution is not to be argued with, it is to be ignored. However, that can also lead to tyranny. This strikes me as a kludge: The Constitution and Laws must be applied and applied properly, however there are circumstances in which the Judiciary may be prohibited from evaluating whether or not they're applied properly. The kludge can be abused, but is (theoretically) important not in providing accountability by the Judiciary, but keeping it reined in.
Now, SCOTUS likes kludges. It cites a few in this case. There are instances where it's clear that precedent and legal language imply unambiguously that the Constitution and its provisions must be applied, there being no legal justification for not applying them in some instances; however, SCOTUS ruled that for "prudential" and "practical" matters, non-application is perfectly ok, because, well, it just has to be, and the Judiciary (and only the Judiciary) has to decide this issues on a case-by-case basis. The Constitution and Laws must be applied and applied properly, however there are circumstances in which the Judiciary may decide that it doesn't matter whether or not they're applied properly. SCOTUS could have said that this means the Judiciary can decide "to switch the Constitution on or off at will" and didn't bother to use that language. It's certainly language that most would take issue with. Note that this is not deciding the law, sensu structo; it's deciding where the law applies, in other words, keeping the Constitution from "seeing" individual cases and situations and shielding them from it. SCOTUS makes the distinction in one place, and tacitly denies in another that such a distinction is even possible. Why? Because it's a separation-of-powers dispute, SCOTUS thinks, and nobody is willingly going to relinquish power that they think they rightly have unless they are humble or so rule-bound that they'd rather follow rules that weaken and harm them.
I'm not all the way through the decision, so my opinion might change in the next 50 pages. So far, I think they could have used a bit of ironic detachment and self-contemplation.
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