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June 19, 2008

Since I'm Feeling Feisty Today....

...perhaps someone can explain something that has been bothering me.

In the comments to one of my Boumediene posts, Rick observed:

Since Congress exercised its Constitutional power to limit what SCOTUS considers, I would simply announce that SCOTUS overstepped its bounds and violated the Constitution by not deferring to legislative superiority on this question. Therefore, he, Bush, would continue with the present arrangement until or unless Congress sent new legislation changing the current procedures.

Sure, that would be a Constitutional crisis, but SCOTUS precipitated the crisis. It would do them good to hear a "no". I didn't see where Justice Kennedy even addressed this. Souter attempted to provide a lame reference, but he was not at all persuasive. He simply claimed SCOTUS was paying attention to a different part of the Constitution.

This excessive genuflection to the Black Nine has been bothering me quite a bit, too. Just why everyone should be inclined to perform the Thousand Prostrations simply because yet another imperial edict, informed by the kind of toffee nosed legal opinion that results from strolling down the Champs Elysees at midnight with a badly rolled Gauloise and a pocketful of anomie ,has once again been handed down from on high continues to elude me.

Does Congress not understand the implications of this decision? Without even giving the DTA a chance, SCOTUS simply blew it off. Let's not forget Chief Justice Roberts' summation. Not content with failure to defer to the Executive during wartime - they overrode the Legislative branch too. And the irony is that this will bring no immediate improvement in status for the detainees:

...who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure.

Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests [citing Justice Breyer’s concurrence in the 2006 Hamdan case] has been unceremoniously brushed aside.

What I don't understand is, if the DTA itself could be construed as invoking Congress' Constitutionally-mandated jurisdiction stripping power over SCOTUS, (and according to at least one member of that Court, it can) what in the blue blazes is keeping Congress from simply passing a resolution saying they don't intend to be bound by the majority decision?

That would be a powerful smackdown to an increasingly imperial court. Of course, it would also provide the President with the backing he needs.... to follow the law Congress passed.


Posted by Cassandra at June 19, 2008 02:56 PM

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It is not likely the Republicans would do that, they are to niiiiice. The Democrats achieve most of their agenda through the courts so the are unlikely to take on the court and hand Bush a victory even if they are reducing their own power in the legislature.

There are a great many in congress who just are not serious people.

Posted by: Pile On at June 19, 2008 06:37 PM

Silence, peasant!

Is that the product of unearned racial and gender privileges I espy poking out of your back pocket? We the People hereby nationalize it in the name of the State. Things will be much more pleasant for everyone when resources are fairly apportioned.

Posted by: Rep, Hinchley at June 19, 2008 08:06 PM

Who says my racial and gender privileges are not earned? I work hard to keep people down.

Posted by: Pile On at June 19, 2008 08:48 PM

Fascist :)

Posted by: Cass at June 19, 2008 08:50 PM

I prefer misogynist fascist. Or misogyfascist. If you will.

And I know you will.

Posted by: Pile On at June 19, 2008 08:59 PM


Just sayin'.

Posted by: Don Brouhaha at June 19, 2008 11:30 PM

There are a great many in congress who just are not serious people.

Bring up the subject of Term Limits and watch 'em get positively solemn.

Or is it sullen?

Posted by: BillT at June 20, 2008 09:17 AM

The Thunder Run has linked to this post in the - Web Reconnaissance for 06/20/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

Posted by: David M at June 20, 2008 11:14 AM

Bush can't ignore the courts decision. Congress was the branch that excercised its constitutional power to limit the courts juristiction. While this is a clear case of the court being in the wrong (even the dissent says this), there is no way the executive branch can get away with pointing this out. It's funny, though. Congress is pretty damn quick to make sure its constitutional turf is sacred when it comes to making sure corrupt congressmens offices aren't searched, but are silent where a fundamental issue is at stake.

Posted by: XBradTC at June 20, 2008 01:26 PM


And what a lot of people don't want to face here is that the popular fear of the so-called elected 'unitary executive' is so prevalent (even though this is precisely WHY the Executive branch is headed up by one and only one person: to cut the red tape) that it far outweighs what ought to be the fear of the 'unitary judiciary' (5 unelected judges who have already ruled that the non-uniformed foreign combatants fall under Geneva and the U.S. Constitution when anyone can plainly see they don't).

But hey - if SCOTUS can unilaterally amend the U.S. Constitution and foreign treaties without so much as a whimper out of the citizenry, everything must be hunky dory.

Posted by: Cass at June 20, 2008 01:47 PM

"Since I'm Feeling Feisty Today...."

Finally got the disco ball fixed, eh?

*running for the hills*


Posted by: DL Sly at June 21, 2008 06:47 PM

I don't see the Dems challenging the Courts. They need the Courts to get most of their political initiatives passed.

Posted by: KJ at June 22, 2008 11:10 PM

It's a tangled web we weave, when we first practice democracy.

Posted by: Ymarsakar at June 23, 2008 12:31 AM