Court-stripping and the Great Writ

Another blow at the rule of law by the Banana Republicans.

The Senate has voted, not quite along strict party lines, to strip the Federal courts of jurisdiction over habeas corpus petitions regarding any alien held by the Secretary of Defense “as an enemy combatant.” I’m feeling sick, though Hilzoy reminds us matters aren’t quite hopeless yet.

Queries for those more learned in the law than I:

1. Can this be reconciled with the provision in Article 1, Section 9, forbidding the suspension of habeas corpus except in cases of rebellion or invasion?

2. If the Congress can deny aliens access to the courts to challenge their detention, what would keep it from doing the same to citizens?

3. If the principle of court-stripping is valid, is there any Constitutional right that cannot be effectively abolished by a simple Congressional majority?

Note that the law doesn’t say that the courts are closed to any alien who is in fact an enemy combatant. It’s enough that the Secretary of Defense chooses to hold him as an enemy combatant. And mistakes get made, especially when institutions consisting of human beings are given unreviewable power over other human beings.

I guess Ol’ Strom knew what he was doing when he picked Graham as his successor. Yes, the boy is a little soft on the torture question, but on the basic issue of whether to shred the Constitution whenever that document proves inconvenient, he’s sound.

And of course the new Chief Justice has long been on board with the idea. If there’s to be a Constitutional confrontation, the man with the chief institutional responsibility for protecting the prerogatives of the courts as guardians of the Constitution has already sold out.

Listen closely. Is that Ben Franklin’s voice saying, “A republic, madam: if you can keep it”?

I wonder if James Madison has standing to sue from beyond the grave to make the Federalist Society stop slandering him by associating his picture with its doctrines?

Update Marty Lederman at SCOTUSblog answers my questions. Apparently the caselaw holds that citizens, but not aliens held abroad, have a Constitutional right to habeas, and the Graham Amendment withdraws only a statutory grant of that right. Whether the Congress can effectively abolish a right by closing the doors of the courts to any remedy for that right is apparently an open question. Scary.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: