Redstate

The concept of judicial review, which enables the Supreme Court to strike down any law as unconstitutional, goes all the way back to Marbury vs. Madison (1820). After nearly two centuries, it's a little late to be trying to rein in the Court now.

From the Supreme Court except in an enumerated class of cases goes back a little farther than that, sinz52. Like, say, to 1789.

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doesn't allow the Court to strike down the Constitution. I think Leon pointed that out as the issue pretty clearly.

"A man does what he can and endures what he must."

to fight tyranny and lawlessness? You would have us surrender any claim to territory taken away from us unlawfully.

Unfair. Unbalanced. Unmedicated. -- IMAO

What do you think the President and Congress could and should do if the Supreme Court were to declare tomorrow that the Federal Income Tax rate was too low, and order it to be raised to 50% across the board? Before you say that this factual scenario would never happened, I can think of at least two State Supreme Courts that have ordered their legislatures to raise taxes (!!).

When the Supreme Court acts outside of its Constitutional authority, it is an absolute nullity, and the elected representatives of our government are justified in ignoring them.

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You are displaying your ignorance of the historical issues present here by presenting this as an open and closed question. Let me just state again, Congress acted according to its express Constitutional power under Article III, section 2 to remove the Supreme Court's jurisdiction to hear these cases. Period. So, this isn't an ordinary case where the Court passes on the constitutionality of a statute.

Please educate yourself historically before proceeding further.

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I did not realize that congress passed the bill in this way. Since that it so, it is the DUTY of the President of the United States and the Congress of the United States to take action on this.

President Bush's statement that he would accept the decision is precedent setting and is almost criminal (It is extremely damaging to the U.S. Constitution and the balance of powers).

The issue is whether or not Congress can remove judicial authority of a particular class of cases. In this case, Congress did but the Court said that such removal was itself unconstitutional, despite the explicit and plain language of the United States Constitution (as quoted by Leon H. Wolf in the original blog above).

*****
Unrepentant Black nationalist, Unapologetic Black conservative!

I agree that he hasn't displayed any historical or legal awareness of the issues involved in this case. But I will say that even a first year law student can see why this isn't the open and shut case the other way either.

One of the things we discussed in my Con Law class is whether the removal of jurisdiction clause has any inherent limit. We never came to a particularly good conclusion. There are plenty of reasons that one might come up with as to why Congress would not be permitted to strip the Supreme Court of jurisdiction over constitutional claims (say that Congress decided that the Court would no longer be permitted to hear any case alleging a violation of the right to Free Speech under the First Amendment).

On the one hand, there would clearly still be a forum for hearing the case - the state courts are bound to uphold the Constitution. But with only state courts hearing such cases you probably wind up with the First Amendment meaning different things in different places. Maybe in California it ceases to protect those who would criticize the "gay agenda," while in South Carolina, abortion supporters would no longer be able to hold public rallies or demonstrations. I don't think anybody would find it "optimal" or even particularly satisfying to have a single document with 50 different meanings.

Personally, I feel that there does need to be some unifying construction of constitutional provisions - and the Founders created such a unifying institution in the SCOTUS. The Court, over 200 years may have jumped the rails, but it is still the only court with the authority to hand down precedent applicable to every other court in the country, state or federal. So I am inclined to think that there must be some inherent limit to the power to deprive the Court of jurisdiction.

That doesn't mean I agree with today's decision. I haven't read the case, but I don't believe that the Founders ever guaranteed the Court a place in any given issue. Congress and the President opted to provide review of decisions in a federal appellate court, and that should be sufficient. Since at least one federal court has jurisdiction to hear these cases I'm not sure how one can say that the writ of habeas corpus has been suspended at all. Even if the writ had been suspended, I'm not entirely sure why the Act in question is an invalid suspension. I would assume Justice Kennedy does not believe that there has been an "invasion" of the country and so the prerequisites for suspension ("rebellion or invasion") have not been met. Clearly the limitations imposed were passed by Congress (no Civil War problem of the president unilaterally suspending the writ here), so that can't be the problem. And clearly the suspension itself can't be the problem since the Constitution expressly permits suspension of habeas corpus.

Kennedy has simply said, in almost as many words, that the Court and only the Court gets to dictate "the law" and that any attempts by the other branches to exercise the powers expressly granted to them under the Constitution will be ignored. I would not be opposed to the impeachment and removal of all 5 of the Justices that agreed with his opinion as they have all proved themselves unfit for the bench. At this stage of the game, either Congress and the President have to yet again pass legislation on the subject expressly addressing the Court's attempt in this case, they must simply declare that they have no intention of abiding by the decision of a Court that had no jurisdiction to hear the case before it, or they must initiate proceedings against the judges who have overstepped their authority. To acquiesce in the decision is simply to accept Amendment of the Constitution by the Court as a part of the structure of government because this decision has eviscerated the express power of Congress to control the docket of the SCOTUS (and all federal courts).

By your example. Didn't your ConLaw class teach you that the Bill of Rights amended the body of the Constitution as written? Nothing in the body of the Constitution can be used to infringe the rights enumerated in the subsequent Amendments.

I haven't read Kennedy's reasoning (if it can be called that) but if he relied on the V or VI Amendments (or the all-purpose XIV), then he has an argument that Congress cannot take away rights that were guaranteed subsequent to Article III. But I will say that his words as quoted are an arrogant abomination.

In your example, you posit a situation -- Congress removing jurisdiction from the Court for hearing First Amendment cases -- that I agree with you would be foolish. Very foolish. However, being "foolish" does not mean that the Congress would be prohibited from doing such a thing.

Why must there be "some inherent limit to the power to deprive the Court of jurisdiction"?

Because the results of not having that limit may be foolish?

Because Congress may deprive the Court of jurisdiction that we may both agree the Court should have?

I'm sorry but those are not reasons that are constitutional. Indeed, such reasoning is nothing more than the "results-oriented" jurisprudence that (most but unfortunately not all) conservatives justly abhor.

Indeed, let me state my legal opinion forthrightly so I will not be misunderstood: Congress can remove jurisdiction from the Court for hearing First Amendment cases.

Let me also make it clear that I would disagree with Congress, strenuously disagree, if they did such a thing. However, again, that does not mean that I think their actions would be unconstitutional.

Would there be very negative consequences?

Yes, I believe so. Indeed, I agree with your assessments of the results of Congress passing such legislation.

But by that same token, I could (and would) also argue that there would still be avenues of First Amendment protections. Indeed, I also agree with your ssessments of the role of state courts (and their limitations).

But again, the thing is, that Congress still can do it even if neither you nor I would want them to do it. The Constitution does not prohibit doing that which is foolish.

I personally think the only reason (okay, maybe the primary reason, but still ...) a first-year law student couldn't see this as an open and shut case is because they do not know and are no longer taught the difference between their personal moral view and/or political philosophy and what is constitutionally permitted and prohibited.

It's like discussing abortion and Roe v. Wade. I almost wished I personally supported "abortion rights" because too many people -- on the Right as well as the Left -- confuse arguments about the constitutionality of Row v. Wade with an argument about abortion.

But to end on a point where we agree, please allow me to quote you for truth:

I would not be opposed to the impeachment and removal of all 5 of the Justices that agreed with his opinion as they have all proved themselves unfit for the bench. At this stage of the game, either Congress and the President have to yet again pass legislation on the subject expressly addressing the Court's attempt in this case, they must simply declare that they have no intention of abiding by the decision of a Court that had no jurisdiction to hear the case before it, or they must initiate proceedings against the judges who have overstepped their authority. To acquiesce in the decision is simply to accept Amendment of the Constitution by the Court as a part of the structure of government because this decision has eviscerated the express power of Congress to control the docket of the SCOTUS (and all federal courts).

*****
Unrepentant Black nationalist, Unapologetic Black conservative!

You're heading off into territory that I don't know a whole lot about, so I'll keep my opinion short:

It seems to me that it is easier to replace Congressmen who seek to wrongly remove power from the Judicial Branch than to remove judges who seek to wrongly remove power from the Congressional or Executive branch.

Unlike Judges, we elect Congressmen. (Except in IL, where dead people elect Congressmen.)

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Dependence is Slavery.

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This once again makes Judges a central issue a mere 5 months from the election. McCain and Republicans should talk about this travesty and how inappropriate it is for the Court to ignore perfectly legitimate legislation. Notice that this brings into great contrast the difference between Obama and McCain. McCain wants more judges like CJ Roberts and Justice Alito - who are in dissent on this case. Obama wants folks like Ginsburg, Breyer and Souter - all judicial usurpers.

The case makes the judicial issue in the election clear - do you want to be ruled by a 5-member majority of the Supreme Court, a majority that won't even respect the exercise of constitutional powers by elected representatives, or do you want the Court to exercise restraint, to maintain some modesty and limits on itself so as to favor the decisions made by the people and their elected representatives.

McCain is on the side of the Court in this. What we will end up with is more squishy moderates on the court.

I wouldn't be too sure about that. Congress — even its Democratic membership — has been zealous about protecting its Constitutional authority. I could see Senator Byrd for one rising to declare that the Supreme Court has overstepped its authority here and needs to be reminded who's boss. The Court has done an excellent job of conning the populace into interpreting Marbury v Madison the way sinz52 interprets it, as if the Supreme Court is the Overlord of Government, but that's not how the other branches see things.

It may be that partisan spearthrowing or even mere gutlessness will prevail here, but if it does our government has just been overthrown by nine philosopher kings.

Drink Good Coffee. You can sleep when you're dead.

It would seem that the Democrats in Congress have just as significant aq stake in preserving Congressional perogative as Republicans ---especially the Dems who voted for the Commissions act.

John
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Why would God invent something like whiskey? To keep the Irish from ruling the world of course.

Let them try to impeach him. In fact, him standing up for this is important... especially to a guy like me, who personally nabbed one of the SOBs who are in there. Let's see if he has stones as big as his military. I think that he does, but it would be cool seeing him stand before Congress and America with some steely-eyed determination.

"Even if you think our presidential choices this election year are between disgust and disaster, anyone who has ever been through a real disaster can tell you that this difference is not small. It is big enough to go vote on election day." - Thomas Sowell

If the president truly believes in his conscious this ruling is wrong because the court is acting outside its authority, as opposed to flawed logic, and thus usurping the authority of Congress and the Executive Branch, then isn't it his duty to ignore it? Doesn’t his own oath of office to protect the Constitution of the United States require he not acknowledge such an illegal and unconstitutional act?

Is not doing so if that is indeed his conscious a violation of his own oath of office?

"Honor is self-esteem made visible in action." - Ayn Rand, West Point, 1974

Or more specifically, that he trample over it.

Unfair. Unbalanced. Unmedicated. -- IMAO

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Am I supposed to feel chastened?

Even if you were supposed to feel chastened, you wouldn't. You've said your piece. I just disagree with your view that an executive to disregard a properly issued court order under our system of government -- even if the executive disagrees with the substance of the order (and even if the executive is correct). Your expressed view, above, that an executive may disregard orders that the executive (alone) determines are outside of the Court's authority to issue is a dodge, and contrary to the Constitution.

If an order is unjust, the remedy cannot be resolved by peaceable action, and it would be tyranny to follow the order, the natural law principles that form part of our Declaration of Independence indicate that the right to revolt against tyranny remains an option. But if you cannot justify revolt -- and you do not justify it here (nor would it be even remotely justifiable) -- you follow the law. There is no middle ground for the executive, a fact that President Bush prudently recognized in his statement of disappointment.

For these reasons, I'm disappointed that you would argue that the executive refuse to follow the law. I'm pleased, however, that President Bush does not share your short-sightedness.

In any event, you're generally a smart and thoughtful guy. I suspect that you will, some day, reconsider and revise your view. Probably not today, however.

For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.

Am I supposed to feel chastened?

Even if you were supposed to feel chastened, you wouldn't. You've said your piece. I just disagree with your view that an executive may disregard a validly-issued court order under our system of government -- even if the executive disagrees with the substance of the order (and even if the executive is correct).

If an order is unjust, the remedy cannot be resolved by peaceable action, and it would be tyranny to follow the order, the natural law principles that form part of our Declaration of Independence indicate that the right to revolt against tyranny remains an option. But if you cannot justify revolt -- and you do not justify it here (nor would it be even remotely justifiable) -- you follow the law. There is no middle ground for the executive, a fact that President Bush prudently recognized in his statement of disappointment.

For these reasons, I'm disappointed that you would argue that the executive refuse to follow the law. I'm pleased, however, that President Bush does not share your short-sightedness.

In any event, you're generally a smart and thoughtful guy. I suspect that you will, some day, reconsider and revise your view. Probably not today, however.

For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.

As to whether this was a validly-issued Court Order. Congress constitutionally has the power to remove cases of this type from the jurisdiction of the Supreme Court. They did so in two clearly-worded and duly-enacted statutes. Ex parte McCardle clearly indicates that even according to SCOTUS precedent, it was bound to respect this decision; it did not.

The DTA and CMA provided for review by an Article III court, but confined exclusive jurisdiction for these claims to the CADC. The CADC ruled in favor of the government. Then along came the Supreme Court, without either statutory or constitutional jurisdiction to hear the case, and issued this opinion, which I consider to be a legal nullity.

President Bush is wallowing in some truly hideous approval ratings right now, and I suspect that he is just trying to ride out the end of his term without further disaster. That does not make him more far-sighted person, as he has effectively told the Supreme Court that it is not bound by the clearly-expressed Constitutional limits to its power. And so, when the Supreme Court finally does decide to follow the lead of the State Courts which have decreed (with breathtaking arrogance and presumption) that State income taxes must be raised (for this reason or that), we will have no one to blame but the "far-sighted" among us who thought it would be a bad idea to remind the Court of its proper function in our system of republican government.

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Both your premise and your conclusion are in error. But now I see why the Directors have a strange post up that assumes that Congress stripped the Supreme Court of jurisdiction to hear this case.

With respect to your premise: Respectfully, re-read the DTA, CMA, the Constitution, and the Supreme Court's opinions (majority, concurring, and two dissenting). Congress did not strip the Supreme Court of jurisdiction in the manner that you presume. Even assuming that your conclusion was valid, its premise is in error.

For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.

The amendment made by [MCA §7(a)] shall take effect
on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or after
the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.

Now please explain how that doesn't cover this case. The dissenters in Hamdan certain considered that it applied because of the DTA, the MCA merely made the point more painstakingly clear.

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Now please explain how that doesn't cover this case. The dissenters in Hamdan certain considered that it applied because of the DTA, the MCA merely made the point more painstakingly clear.

That's (in part) because Hamdan considered the statutory right to habeus corpus, not the Constitutional right to habeus corpus at issue here. In order to strip the Court of the right to consider the Constitutional writ of habeus corpus, Congress must invoke the suspension clause of the Constitution. Which is still could do -- but hasn't yet.

In any event, I've got to jet. I'll read any response when I can't bear any more work this evening.

For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.

In the first place, neither the Congress that enacted the DTA or the MCA was prepared to grant the proposition that the detainees have access to the Constitutional writ. It's still a proposition that is facially laughable to me. They are, by definition, non-citizens who are not on United States soil. There is simply no basis for the Constitution to apply to them, as Eisentrager made clear. The fact that they didn't feel the need to explicitly remove something that the SCOTUS had told them they didn't have is dispositive of nothing.

And so again I call you to the language of the DTA, because it is painstakingly clear, covering any aspect of anything related to in any way the detention of these individuals. For these cases, federal jurisdiction is removed, except to the extent that the CADC may hear limited appeals from the military tribunals.

The question you must ask yourself is, did the case the court decided today "relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001"? The answer to this is a clear and unequivocal "Yes," in my mind. If there's some uncertainty in yours, I'd love to hear the basis for that.

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... since you concede the point that the DTA and MCA are insufficient to invoke the suspension clause.

The argument you now advance reflects Congresses' calculated risk that the SCOTUS would not regard Gitmo as subject to the Constitutional right to habeus corpus. But it's not as though this interpretation of the habeus clause is completely baseless or out of line with either the old Anglo-Saxon rule or prior Supreme Court precedent. The basis for and potential that the Court would distinguish Eisentrager (its prior decision on point) were crystal clear from the get-go.

But Congress took its calculated risk; the Court didn't go Congress' way; and the Court adopted a perfectly defensible and foreseeable interpretation of HC. Yet, you call on the President to defy the law. That's no way to run a government.

So, like I said: Disappointing.

For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.

So I'll ask it one more time: did the case the Court decided today "relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001"?

It's a rather simple question.

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The point I'm making is this: let us suppose, hypothetically, that Congress had passed, as part of RFRA, a provision that stated that the federal courts henceforth had no jurisdiction to hear any case "related to any aspect of the free exercise of religion." Then, in the same hypothetical, imagine that the SCOTUS had issued the opinion in City of Boerne v. Flores exactly as it is.

To my mind, before I would be interested in examining whether City of Boerne v. Flores represented a faithful application of either the Establishment Clause or the Fourteenth Amendment, we'd have to clear up the bit about whether the Court had the authority to hear the case in the first place.

That's what's happening in this discussion. I agree that the DTA and MCA arguably implicated the Constitutional right to HC (I said arguably), but problematically, Congress declared that the federal courts did not have jurisdiction to hear any case "relate[d] to any aspect" of, inter alia, either the detention or trial of the Guantanamo detainees. So to my mind, the debate about the Suspension Clause is totally and completely irrelevant, because first we have to have a debate about whether Congress can remove SCOTUS' jurisdiction to hear this case under Art. III, section 2. It's a problem not often tested during the history of our Nation (with the notable exception of Ex parte McCardle), but the fairly plain language of Article III, section 2 indicates that the administration (and the CADC opinion that the SCOTUS overturned) were correct that the SCOTUS should never have heard this case.

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Isn't the question of validity exactly what we are talking about?

What if the SC ruled that Congress had to pass a law saying X and that the President had to sign it?

What if the SC ruled in a declaratory judgment that Iran could not be attached?

At some point, the other institutions of government have to stick up for themselves and us.

If an order like this was issued during the Civil War or WWII---it would have been ignored in its entirety. Whether that is because of the state of media at the time or the dire nature of those wars, one can argue---but the fact that it would have been ignored is not disputable given what else occurred during those two wars.

.... A perfectly defensible extension of Habeus Corpus. It may or may not have been the correct decision, but if you don't see that both the opinion and dissents have valid arguments, you don't understand the issues.

For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.

Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson

(1) bringing another case and try to get the court to reverse itself
(2) nominate better justices
(3) limit the court's jurisdiction by Congressional action
(4) impeach justices
(5) amend the constitution

In order:

1.) Possible, but why would they reverse themselves if they can rely upon themselves for precident now?

2.) I don't see that happening. If, by some chance, that DOES happen, I don't see Congress allowing such appointments.

3.) Also don't see that until we get a Conservative SuperMajority and an American Public that shifts to the right.

4.) Oooo I wish. However, as none of them are President Bush, I don't see Congress doing that. Well, maybe if they went after Roberts, but I like him.

5.) See answer 3 above.

With this set up, with these conditions and with what's required to do any of the above 5, I just don't see it happening.

It is a reason, I would hold, that we need to drag the Republican Party back to the Right.

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Dependence is Slavery.

survivors of the 20K+ terrorists we have killed since 911 and the 2006 Congress with a mandate to end the war.

Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson

death?

crazy man

Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson

Tim Schieferecke

Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson