The POTUS Should Respond to the SCOTUS By Making Congress Decide
By The Directors Posted in Law — Comments (39) / Email this page » / Leave a comment »
Dear Mr. President,
Despite Congress taking the rare step of ceding jurisdiction away from the Supreme Court pursuant to Article III of the Constitution, the Supreme Court has chosen to ignore both the Legislative and Executive Branches by hearing cases involving Gitmo prisoners. To be clear, Congress had the power to deny the Supreme Court jurisdiction in this matter. Congress did do that. You signed the law denying the Court's jurisdiction. The Supreme Court ignored you both.
While we are tempted to advise that you ignore the Supreme Court, thereby showing it the deference it has shown the Congress and White House, we do not think you need to take Andrew Jackson's stance.
Mr. President, the Supreme Court has put all three branches of the federal government in an awkward position. By choosing to ignore a clear and constitutional prohibition on its own power, it now forces the hand of the other branches of government. Just as problematically, the Court has thrown out what Chief Justice Roberts called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants" and failed to specify what procedures should be used in their place.
Respectfully, Mr. President, we suggest you go immediately to Congress, point out that Congress had stripped the Supreme Court of its jurisdiction on the very issue, and ask for the Congress's advice on how to faithfully execute this matter since you would be guided by a Supreme Court decision the Court was without constitutional authority to actually render, and which struck down rules passed by Congress leaving nothing in their place.
In other words, Mr. President, let the Speaker and Senate Majority Leader decide if we should or should not coddle terrorists pursuant to the Supreme Court's decision.
Sincerely,
RedState.com
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"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.
I believe that reads as any of the above not all of them.
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
Despite Congress taking the rare step of ceding jurisdiction away from the Supreme Court pursuant to Article III of the Constitution, the Supreme Court has chosen to ignore both the Legislative and Executive Branches by hearing cases involving Gitmo prisoners. To be clear, Congress had the power to deny the Supreme Court jurisdiction in this matter. Congress did do that. You signed the law denying the Court's jurisdiction. The Supreme Court ignored you both.
Whaaaaaa? That's not a correct or coherent statement of the issue. Nor is it the basis for either dissent. What's the support for your view?
Now, Congress could (potentially) strip the Court of the power to hear these cases by invoking the suspension clause under the public safety exception. The Volokh Conspiracy has a discussion up regarding of this option. But Congress hasn't done that yet. Are you proposing that President Bush urge Congress to pass this legislation? Because, otherwise, I don't know what you're asking the President to do.
(Well, I do know what you're asking the President to do, but it doesn't make a lot of sense so I assume your actual request is something different.)
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.
Vest exclusive jurisdiction with respect to any habeas actions in the CADC. The MCA is clear that the removal of jurisdiction is not confined to the habeas petitions themselves, as SCOTUS noted today:
any other action against the United States . . . relating to any
aspect of the detention, transfer, treatment, trial, or conditions of
confinement” of a detained alien determined to be an enemy combatant.
MCA §7(b) provides that the 2241(e) amendments “shall take effect
on the date of the enactment of this Act, and shall apply to all
cases, without exception, pending on or after [that] date . . . which relate
to any aspect of the detention, transfer, treatment, trial, or conditions
of detention of an alien detained . . . since September 11,
2001.
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Vest exclusive jurisdiction with respect to any habeas actions in the CADC. The MCA is clear that the removal of jurisdiction is not confined to the habeas petitions themselves, as SCOTUS noted today:
That applies to the statutory right of habeus corpus, not the constitutional habeus corpus right. To suspend the constitutional writ of habeus corpus, Congress needed to satisfy the suspension clause of the Constitution. Which it didn't do.
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.
That the Act applies not only to the habeas petitions themselves but to any matter even relating to any aspect of the confinement, transfer, treatment, etc. of the Gitmo detainees. I don't know how Congress could have sent a clearer signal that it did not want the federal courts hearing these kinds of cases, period - not just the revocation of the writ of Habeas itself.
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If Congress wanted to strip the Court of jurisdiction to hear claims under the Constitution's habeus corpus grant, it should have sought to satisfy the suspension clause:
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.
Over at Volokh, Orin Kerr notes that the Supreme Court leaves open the possibility that Congress could suspend the writ under the public safety standard.
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.
I know what the Suspension Clause says, just like I know what the First Amendment says. There's an argument over whether the Suspension Clause applies to the detainees at Gitmo, just like there's an argument over what various provisions of the First Amendment mean and what sort of conduct they apply to. I view that Article III, Section 2 gives Congress the plenary authority, outside a certain enumerated class of cases (into which the habeas question does not fall), to revoke the jurisdiction of all Federal courts (including the SCOTUS) to decide these questions. And I think that the language of both the DTA and MCA were painstakingly clear that Congress intended to foreclose the Federal courts from hearing any case that was related to any aspect of the detention, treatment, trial, etc. etc. of these detainees.
You may disagree that Congress has this authority (I understand that there are quite a few people who don't believe that Article III, section 2 means what it says concerning the jurisdiction of Article III courts), but that doesn't provide you with an excuse to turn this argument into something it's not even about.
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There's an argument over whether the Suspension Clause applies to the detainees at Gitmo,
Only as part of the argument over whether the Habeus right applies to Gitmo. That's the primary basis for both dissents.
You may disagree that Congress has this authority (I understand that there are quite a few people who don't believe that Article III, section 2 means what it says concerning the jurisdiction of Article III courts), but that doesn't provide you with an excuse to turn this argument into something it's not even about.
That is what's so frustrating about this debate, your posts, and the Directors' stand. I agree that Congress has the right to suspend the privilege. But there's no way the DCA and MTA are sufficient to invoke the right. Indeed, neither of the dissents make your claim that they are (at least, in the manner that you make the claim). This is not because Scalia, Alito, Roberts and Thomas missed the argument. This is because your argument is not is not well taken.
So, I'm not "turn[ing] this argument into something it's not even about." I'm trying to make sense out of assertions that don't make a lot of sense.
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.
Habeus => Habeas. Sorry. It's one of those errors that stick in the brain.
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 agreeing to hear this case and render a decision SCOTUS has clearly overstepped its Constitutional boundaries. The historic protections and access to courts, only previously given as a privilege of American citizenship, have now been to afforded terrorists. This in effect makes them de facto citizens as a result of their willingness to attack, kill maim and attack Americans. Think about the logic involved with such an egregiously contra intellectual decision and the motives for such disreputable action.
This court which has previously taken away our constitutionally provided property rights now seeks to further steal power from the Congress and our President. They further abrogate the powers outlined by our forefathers and ingrained in the basic tenets of freedom. How long do we stand for such ignominy?
Furthermore, the Congress, as currently composed in majority, will let this action stand since their politics, liberal beliefs and supporters view this as an opportunity to further parochial goals. Their candidate for President will demur and pretend that such action is aligned with Constitutional duties. How much longer do we stand such an inexcusable loss of freedom and rights? Is this the collective leadership we crave today?
Tyranny is certainly on the horizon and those of you supporting such action will win the battle but indeed lose the war. Such rights, power and freedom is never regained without a struggle. Today we have all lost and unless these actions are met with intelligent riposte and action to remove the Constitutionally frail from office we shall all, as one people, rue the day.
"Nec Aspera Terrent"
bene ambula et redambula
Contributor to The Minority Report
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
Stupid Penguin... you're supposed to use a rifle at 100 yards, not cymbals at 1 Foot.
Wait... they're endangered now, Polar Bears.... right?
*sigh*
....
I wonder what penguin tastes like.
----------------------
Dependence is Slavery.
That would always be in the seat one behind me on a plane. You know, you have probably met him. He likes to kick the back of the seat, make rude noises, and after awhile may get in your face and ask "Does this bother you?".
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
I don't have that problem.
Sure, some kids try to do that, but I guess when I turn around and whisper into their ear that I don't mind eating their little puppy they left at home, they stop bothering me.
(I'm kidding, I've never done that.... but I have to keep up the reputation of being evil as I am a single white straight male conservative)
I know the kid you're talking about and I've found that a good way to avoid such situations is to take my approach:
I became a hermit.
----------------------
Dependence is Slavery.
I'm not fond of either enemy combatants or the results of this decision. But I believe this was the right call by the court.
The Court has the duty to enforce the Bill of Rights, which nowhere limits itself to citizens. That the President and Congress agreed on a standard is meaningless; that happens with every non-vetoed law the Supreme Court overturns.
I agree that habeus corpus obviously does not apply to prisoners of war, far less unlawful combatants. But someone doesn't become an unlawful combatant because the federal government says he is, but because he's caught fighting without a uniform. And I have to question why some have been detained for 6 years. Granted the information source here is NPR radio, but I have trouble understanding how they even get to one year. Surely, if they're really unlawful combatants, it's long past time for them to be interrogated and/or killed?
We need to show some consistency here. If we have a real "rebellion or invasion", we ought to be treating it far more seriously than a few cases of indefinite detention. If not, then there needs to be a real cause why the government needs wartime powers in peacetime.
Bush loses his CINC powers today to a coup by President Kennedy and you want him to beg Congress to save us all?
Redstate needs an Andrew Jackson if this is the best the committee can do.
I am available. Contact my agent (Pilgrim). Bring checkbook.
sad
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
What course of action would you recommend? I saw some of theis after the MA gay marriage decision came down. Conservatives above all else should understand the rule of law. And also, I'd be a way better agent than Pilgrim.
let them leave the Base until hostilities cease.
Like in all other wars.
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
let President Bush direct military forces. They don't let him create military tribunals to administer justice to civilians.
If we're in a war, then detention and trials are inappropriate. They should be replaced by POW camps and war crime tribunals. But then these don't apply to civilians, unless they're caught unlawfully fighting as soldiers.
I understand the difficulty. Bush is trying to use both the military and criminal justice systems together to fight terrorism. But while the goal is laudable, I think the differences deserve more care and thought. Military problems shouldn't be solved with judicial systems, and vice-versa.
If it is a war then treat it like a war. If it is a criminal matter then treat it like a criminal matter. Trying to blend the two will not only not work, but also lead to all the unnecissary "police state" talk we have to put up with ... it will also give Obama "ideas" about solving national "problems"...
until hostilities cease, not tribunals for war crimes.
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
for more than 11 months. Am I wrong? Is this post a joke or a reflection of growth born of attending G-Town parties?
Reject Andrew Jackson in favor of a groveling baby?
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
Limiting yourself to the directors seems pikerish.
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
stop capturing them and kill them on the battlefield in that they are attempting to kill our guys and girls. I don't believe Kennedy can bring them back to life...
Freedom of Religion NOT Freedom from Religion
battle plans or warrants prior to attacks.
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
It's not bold enough. It is very nice political triangulation, as far as that goes, and effectively puts Dems on the hot seat.
But I don't care. This is about the Constitution, and Democrats are irrelevant to the Constitution (in every way imaginable). This is about separation of powers, and the primacy of the Constitution. I consider the habeas corpus issue to be of much less interest than the court's blatant defiance of Article 3, section2.
Bush should openly defy the Court's ruling, and should say so and explain why in a nationwide speech. And the House should file articles of impeachment on 5 justices who can no longer be said to be defending the Constitution, per their oath.
Unfair. Unbalanced. Unmedicated. -- IMAO
On a speech by the current president ??
Hoo boy I'd love to see you at the tables in Vegas man.
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
No, not resting the fate of it on the *speech*. On the President's willingness to defy the court. The speech is just to put the nation on notice, explain why he's doing it, give the population a little badly needed education in Constitutional Law.
But all that aside, I do alright - strictly blackjack though, and the house can be beat.
Unfair. Unbalanced. Unmedicated. -- IMAO
are suggesting bush go all rambo, I'm all ears.
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
There's two kinds of people those with loaded guns and those that try to get their decisions enforced.
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
have been McCain's stated positions for months.
Politically speaking(and aren't we?), I don't see the wisdom of having Bush defy the SC unless it is to allow McCain to prove his differences with Bush.
To: E Pluribus Unum: I'm with you.
This unpleasantness will mark an historical point in America's history in which the Judiciary takes over yet another part of America IF SOMEBODY DOES NOT STOP IT. ONLY BUSH can do this. The American military is toast if this ruling stands.
So Bush must again deal with a TERRORIST ATTACK on America on his watch. I hope he can rouse himself from his melancholy enough to face down America's vilest enemies once again.
I cannot follow the hair splitting arguments about the Constitution in these blogs but I do know this: The U.S. Military should not be sent to battle America's enemies as a branch of the Judiciary.
The best thing Bush could do would be to hold a press conference and say that he is ordering that every single detainee in Gitmo is moved to prisons in Iraq and Afghanistan (hell, lets see if Egypt will take some in consideration of the nuke technology we are giving them).
Bush should then offer to waive the age and health requirements to be an officer in the Army and offer Kennedy, Breyer, Ginsburg, Stevens, and Souter commissions as a general officer (Kennedy with four stars, natch) seeing that they evidently know how to wage war better than the current military leaders.
From someone who is not an expert by any means.
So the Constitution allows Congress to strip jurisdiction. The Constitution also says, "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."
So if Congress strips jurisdiction of habeas corpus, isn't that unconstitutional because that is, in effect, suspending the privilege of the writ of habeas corpus? In other words, shouldn't the habeas corpus part of the Constitution be seen, among other things, as a limit to the jurisdiction-stripping Congress can enact?
In the same way that "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." is a limit on Congress's law-making powers (in particular, laws making people quarter soldiers in peace-time).