For a variety of reasons, I have, until now, been keeping rather mum on the debate over the Military Commission Act of 2006. In light of today’s New York Times editorial, one of the strongest and harshest I’ve ever read in _any_ paper, let alone the paper of record, and in light of this morning’s 51-48 defeat of the Specter Amendment in the U.S. Senate, I think the time has come to say something.
The problem is, I don’t know what to say. Yes, the bill has all kinds of horribles hidden (some in plain view) within its text. But I’m a federal courts geek. And so, whereas there’s lots to say about the various substantive issues — the authorization of military commisssions, the definition of “enemy combatant,” the evisceration of Geneva Convention rights — to me, there’s just nothing that stacks up to Congress’s continuing attempt to oust the federal courts of jurisdiction to decide some of the most basic and fundamental questions that our legal system has ever confronted. And the MCA, in its current form, would preclude federal jurisdiction over virtually any habeas petition filed by a non-citizen detainee in the war on terrorism. That is, Congress is, for lack of a better word, too scared that the courts might just take issue with such a blatant assault on long-held, well-established conceptions both of individual rights and limitations on governmental power. And so, in one fell swoop, Congress is showing its arrogance all while arrogating what may well be the most important check in our system of checks and balances — the countermajoritarian role of the courts in checking the excesses of the political branches.
The Alien and Sedition Acts of 1798, which provided the epigraph for today’s Times editorial, were simply bad policy. But the MCA is far worse, because it denies to the courts the opportunity to decide whether it is unconstitutionally bad policy. If the courts are to be such bit players in our system, why raise such a huff over nominees to the federal bench?
Because I simply don’t know what to say anymore, I’ll just quote somebody else: Justice Frank Murphy, dissenting
Comments
Andy,
You state: “The Constitution surely does not explicitly state that the Court will have jurisdiction over all issues pertaining to the constitution.”
Umm, take a gander at oh, I don’t know, Article III, Section 2 of the Constitution. For your convenience: “The judicial power shall (not may) extend to all (not some) Cases (which means issues), in law and equity, arising under this Constitution….” Would you like to rephrase your statement? Surely you cannot seriously believe that Congress can legitimately “strip the the Court’s power to decide consitutional questions.” I mean, is this not what Courts do? Or is the Constitution just something Congress can reference when they like? Please explain.
Posted by: Charlie | Oct 14, 2006 7:40:08 PM
“By creating an opt-out for judicial review, Congress (and the President) is trying to circumvent the checks and balances our Constitution requires.”
but if the Constitution allows Congress to eliminate judicial review, then the Constitution does not require complete “checks and balances.”
the statute seems sketchy to me, but if the constitution allows for the elimination of judicial review, then one cannot argue that the constitution always requires checks and balances (only that the speaker prefers that it does).
Posted by: andy | Oct 2, 2006 2:04:52 AM
Posted by: Bart Motes | Sep 30, 2006 9:40:11 PM
As a life long Republican, I think this act is pretty sickening. Sure, the NYT is a liberal rag, I’ll concede that point, but I think this editorial is on the money. We can debate the policy, but the policy should be subject the same judicial review that every other piece of legislation is. By creating an opt-out for judicial review, Congress (and the President) is trying to circumvent the checks and balances our Constitution requires. The sky isn’t necessarily falling, democracy isn’t necessarily dead in America, but if Congress establishes the precedent that it can simply hedge out the courts by tacking on a proviso to ‘important anti-Terrorism’ legislation, our freedoms might be heading towards an early grave. The “War on Terror” and the “War on Drugs” already seem to be bleeding together with fun terms like ‘narco-terrorism’ and the hysterically hyperbolic advertisements that link buying pot to funding anti-American terrorists, so how long until this kind of language gets attached to broader legislation?
Posted by: themainevent | Sep 30, 2006 10:28:52 AM
Steve,
You’re misunderanding the point. It isn’t that the editorial today is biased. It’s that the NYT has no credibility because it has a Chicken Little problem. The sky is always falling thanks to the Republican Party over at the NYT, so no one outside of the loyal left pays any attention when the NYT editors get freaked out. Even when they’re right.
Posted by: lawlawlisa | Sep 29, 2006 2:47:24 AM
Steve–
I usually indulge myself in reading the WSJ’s editorial page, and admit that it is almost never right. It’s almost always a bunch of hot air and politicizing.
I tried reading the NYT editorial page for a while, but it was too much to bear…I continue to read the WSJ because at least I’m amused by it.
Even if the NYT’s editorial is correct, I’m sure it contains various mischaracterizations and skewing of the truth.
Substantive question on jurisdiction stripping– as I understand it, the courts absolutely only get jurisdiction over a few matters prescribed in teh constitution (i.e. stuff involving ambassadors, etc.). Is it undoubtedly the case that Congress can perform the jurisdiction stripping at issue in the MCA? Or is your concern limited to the fact that jurisdiction-stripping may be undesirable? Further, is it necessarily the case that Congress can strip the courts of the authroity to decide *constitutional* questions? I imagine the only authorities on-point are court decisions themselves, which are of course an odd place to look. Do any ancillary authorities (e.g. federalist papers) speak on the issue of whether Congress can strip the Court’s power to decide consitutional questions? The Constitution surely does not explicitly state that the Court will have jurisdiction over all issues pertaining to the constitution.
“If the courts are to be such bit players in our system, why raise such a huff over nominees to the federal bench?”
I don’t think the issue is necessarily that courts *are* bit players, but rather that some want them to be bit players, rather than (for lack of a better term) be “activist.” Stripping them of a jurisdiction is one way of ensuring of moving towards this “bit” role.
As far as the merits of the MCA or the torture bills, I don’t know enough about them to opine. They do smell fishy, though, but I’m not sufficiently versed in the underlying issues to offer any analysis (and perhaps that is why I’m reluctant to take a NYT editorial as my first introduction to the issues).
Posted by: andy | Sep 29, 2006 1:39:13 AM
Okay, I’ll bite: What’s “biased” about today’s editorial? I don’t disagree that the Times’ editorial page often has an agenda, but does that necessarily mean that nothing it says is worth listening to?
Posted by: Steve Vladeck | Sep 28, 2006 10:56:11 PM
*Sometimes* biased? C’mon, Steve. The NYT editorial page is just a total joke. It makes Daily Kos seem balanced and thoughtful.
Posted by: lawlawlisa | Sep 28, 2006 10:52:13 PM
The jurisdiction-stripping does only apply to non-citizens.
As for Andy, does the fact that it is sometimes biased mean that it is never right?
Posted by: Steve Vladeck | Sep 28, 2006 10:28:06 PM
The NYTimes ed. page is as ridiculously biased as is the WSJ’s ed page. Are there any more respectable sources discussing the MCA?
Posted by: andy | Sep 28, 2006 9:41:59 PM
Too bad the NYT has no credibility on legal topics to anyone who doesn’t already hate Bush. The bill may be bad, but it only makes the GOP happy to do stuff that makes Adam Cohen upset.
Oh, and i believe rhe stuff about habeas only applies to non-citizens.
Posted by: Karl NM | Sep 28, 2006 8:58:49 PM
Does it treat citizens and non-citizens differently? Bruce Ackerman had a piece in today’s LAT saying it places citizens at risk. Was this something hashed out in the debate — i.e., made obvious?
Posted by: BTD_Venkat | Sep 28, 2006 2:32:11 PM