Balkinization: Hamdan is a Big Deal Regardless of What Congress Does

Hamdan is a Big Deal Regardless of What Congress Does

Marty Lederman

A short response to my co-blogger Mark Graber:

Mark is not wrong about the uncertain nature of Hamdan's impact on the future of military commissions: That will, of course, depend on what Congress does with such commissions. In this respect, Hamdan could not have accomplished much beyond such a result -- indeed, the whole point of the legal challenge was to require the President to conform the commissions to the standards already prescribed by statute, and to insist that if new procedures are to be created, such a change must be effected by both political branches, in the ordinary democratic manner, rather than by Executive fiat. As Jack explains, that's no small thing!

But more importantly, I think Mark's equivocal reaction misses the forest for a tree -- a very important tree, to be sure, but a tree nonetheless. The exact same critique Mark offers could have been leveled at the Youngstown decision the day the Court issued it: The fate of industrial seizures for war purposes obviously depended, going forward, on what the Congress would do in response to the Steel Seizure opinion. And Congress might have even enacted a statute giving Truman exactly the authority he was asserting.

But even if Congress had done so -- i.e, had agreed with Vinson about the state of the emergency and given Truman everything he wished for -- Youngstown would be just as significant a fixture in the constitutional firmament as it is today. And I predict the same will be true for Hamdan.

That is to say, I think Hamdan will be remembered as a decision about military commissions to the same extent that Youngstown is recalled as a leading case about steel mills (or about just compensation). As I suggested in my earlier post, the Court's decision today is about much more than military commissions. Among the broader principles established are these:

-- That the President's powers are limited by statute and treaty, and he acts independently at his peril where such statutes and treaties are in the picture. (The Kennedy concurrence, in particular, is really quite devastating with respect to the Administration's Commander-in-Chief theories.);

-- That statutes should be construed, absent evidence to the contrary, to require the Executive branch to comply with the laws of war; and

-- That Common Article 3 applies to all armed conflicts, a holding of enormous implications, not least of which is with respect to the debate about torture and other interrogation techniques.

I think these major holdings will survive, no matter what Congress does with respect to commissions, and regardless of the Court's composition in the years to come. And that's why Walter Dellinger is onto something when he writes that "Hamdan is simply the most important decision on presidential power and the rule of law ever. Ever." That might be a bit of an exaggeration (Milligan? Nixon?) -- but maybe not: It's a close call. See also Linda Greenhouse: "A historic event, a defining moment in the ever-shifting balance of power among branches of government that ranked with the court's order to President Richard M. Nixon in 1974 to turn over the Watergate tapes, or with the court's rejection of President Harry S. Truman's seizing of the nation's steel mills, a 1952 landmark decision from which Justice Anthony M. Kennedy quoted at length."

Posted 5:23 AM by Marty Lederman [link]