Is the Analogy to the Alien and Sedition Acts Too Generous?

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 in In re Yamashita:

While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others. We live under the Constitution, which is the embodiment of all the high hopes and aspirations of the new world. And it is applicable in both war and peace. We must act accordingly. Indeed, an uncurbed spirt of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit. The people's faith in the fairness and objectiveness of the law can be seriously undercut by that spirit. The fires of nationalism can be further kindled. And the hearts of all mankind can be embittered and filled with hatred, leaving forlorn and impoverished the noble ideal of malice toward none and charity to all.

This morning's Times editorial concluded by calling the MCA "a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts." I fear, given the damage it may well do to the proper separation of powers, that such a conslusion is overly optimistic. The substantive provisions of the Act may well be constitutional, but that should be for the courts, and not for the political branches, to decide.

Comments

[Anderson]

I just don't understand how jurisdiction-stripping works in con law.

The Congress passes a bill, stating that a simple majority suffices to override a veto, and adds that the courts shall be powerless to entertain any challenge to that legislation.

Isn't it obvious that the courts can disregard that?

Or they pass a law that no black person can vote, and similarly strip the courts of any jurisdiction over any cases brought by blacks. (Thus, no one has standing to challenge.)

How is habeas-stripping different?

Similarly, if the Geneva Conventions, as a treaty, are the law of the land, how can the courts be stripped of authority to "say what the law is"?

[Steve Vladeck]

Anderson -- If the jurisdiction-stripping is unconstitutional, courts _will_ have the power to say so, because it is axiomatic that courts have jurisdiction to determine their jurisdiction. The problem, however, is that the traditional constitutional limits on jurisdiction-stripping are the Due Process Clause and the Suspension Clause, and there is a lot of sentiment out there for the notion that the Guantanamo detainees have no rights under either.

And so, the constitutionality of the jurisdiction-stripping may well turn on the extent to which the detainees have DP or Suspension Clause-based rights...

[David]

Steve,

Let's assume for a moment that "enemy aliens" detained within the territorial jurisdiction of the United States have Suspension Clause rights. The prevailing view seems to be, however, that whether any particular suspension of habeas corpus falls within the Suspension Clause is a nonjusticiable political qustion. That is, only Congress can suspend the writ, but if it clearly says that is what it is doing, its determination that the constitutional predicates of rebellion or invasion are met is essentially unreviewable by the courts.

I'm not aware of any recent authority on this question, either from the Supreme Court or in the literature, but early Supreme Court cases certainly hint that way and I believe this interpretation is generally accepted. For example, Justice Story believed that "as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, ... the right to judge whether exigency has arisen must exclusibley belong to that body. And in Ex parte Bollman (1807), the Court stated in dictum that "if at any time the public safety should require the suspension of the [writ], it is for the legislature to decide."

This would seem to indicate that the Courts are powerless to determine whether in this case the suspension of habeas for enemy detainees is constitutional, at least under the Suspension Clause. (I don't see how they could take the approach of INS v. St. Cyr and determine that Congress' intent is not clear.)

Now, this just doesn't make sense. I can understand affording the political branches a wide degree of deference on the question of whether there's been an invasion or rebellion. But to hold that it's entirely a political question seems to write the two predicates out of the suspension clause - we're left with something more like "The Privilege of the Writ of Habeas Corpus shall not be suspended ... unless Congress SAYS SO." As a constitutional matter, I would argue that it is at least as plausible, particularly in light of the expanded notion of fundamental rights since these early decisions, to hold that the writ shall not be suspended while the courts are open, functioning and able to hear habeas petitions. (I say that with the caveat that I haven't taken fed courts and haven't read any of the decisions concerning AEDPA).

What do you think?

[Steve Vladeck]

David -- Some excellent points... My first thought in response is that I'm not as convinced as I take you to be that St. Cyr wouldn't help here... to whatever extent that that decision requires a "superclear statement" (to quote Scalia's dissent) of congressional intent _to suspend_ the writ, I'm not actually convinced that the MCA is such a statement, especially in comparison to those few statutes (e.g., the Civil Rights Act of 1871) that actually _did_ suspend the writ. There was a great exchange at the Hamdan oral argument between Justice Souter and the Solicitor General over whether Congress could suspend the writ inadvertently...

As for your suggestion that, under the Court's limited precedents, the question whether the conditions for suspending the writ are satisfied is a political question, I wonder where Duncan v. Kahanamoku, 327 U.S. 304 (1946), fits in. There, the Court had no problem reaching whether martial law in Hawaii (including the suspension of habeas) was justified, notwithstanding the earlier cases to which you refer. So, I guess where that leaves me is that I think the Court _could_ find a way to strike the jurisdiction-stripping down if it (well, Justice Kennedy, anyway) wanted to.

But I may be overestimating...

[Jeremy Telman]

Excellent post, Steve. I share your sense of alarm about this legislation and am irked that such alarm is not more widespread.

I would quibble however with your argument that this legislation shows congressional arrogance. I think it demonstrates (if any demonstration were necessary) executive arrogance and congressional passivity. This legislation, like others before it and more still to come, originates with the executive. Its aim is to insulate executive conduct from any possible legal or legislative review. In the War on Terror, Congress has repeatedly passed legislation written by the executive that transfers decision-making authority from Congress to the executive. Having gotten Congress to abrogate its own constitutional authority to check the executive, the executive, with congressional acquiescence secured, now seeks to stifle judicial review of executive authority as well.

[Anderson]

David, I too fail to grasp how a clause expressly written to limit the power of Congress, can be left to the exclusive interpretation of Congress.

Not that I can't see Justice Thomas making that argument.