an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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."
This post brought to mind a fairly recent article by Balkin and Levinson that makes the point of the importance of knowing the facts of a case. They used as an example the decision in the Steel Mills case, which failed to disclose many of the critical facts; that one had to go to the dissent to get an understanding of the facts. I hope that in Hamdan the Court's decision provides the facts in sufficient detail; otherwise, supporters of George W will add their own "facts" to challenge it. (By the way, I think that B & L's article - I don't have the cite or recall the title - should be must reading for all beginning law students.)
Hamdan won't mean anything if Stevens and/or Ginsburg can't hang on for another two years. If either one of them goes, Hamdan will be reversed at the earliest opportunity.
Everyone on this site knows that if Stevens got hit by a bus last february or if another member of th e liberals had unexpectedly died or resigned, this case would have come out the other way. It was a blatantly political decision whose outcome was clear the moement the Rasul case came down.
To act like this is some overwhelming win is silly. This was a 5-4 case whose outcome could have been predicted months ago.
If Bush gets another vacancy to fill, Hamdan will either be be rightly overruled, or so severely distinguished and limited that it loses any meaningful authority.
The liberals hopes rest on an 86 yr old cancer surivor and a 73 yr old cancer survivor. Not exactly promising
Agreed, the really unnerving thing about Hamdan is not Hamdan itself (obviously!) but the fact that is was so narrowly decided. 5 to 4 is too close for comfort. One more Alito and the country is in real trouble.
As to Sarah's comments, it should be noted that the "meat" of the ruling was a firm reaffirmation of the Youngstown principle respecting congressional power and against the executive overriding clear congressional will in areas Congress clearly has authority over.
This core principle was not decided "5-4." The dissenters as a whole disputed the majority's reading of a habeas stripping law and the rules of military justice at stake. That is, the major dispute for two or three justices was statutory construction.
Aside from the fact a Reagan appointee joined in -- if you can't trust those, who can you trust? -- retirements (Scalia is 70 btw and doesn't always seem that happy with his job) just might have your desired effect.
Again, the tone and firmness of the ruling was key. Likewise, repeated accounts about how "surprised" public officials are about the ruling belie your comments. The vote was not too surprising, but the breadth and tone was less obvious months ago.