By turning a statute limiting court jurisdiction into a delegation of power by Congress to the Supreme Court, the Hamdan v. Rumsfeld opinion is a political masterstroke. This Essay explains why “the least dangerous branch” felt empowered to ignore congressional limits on its authority, repudiate presidentially created military tribunals, and conclude that the Geneva Convention applies to Guantánamo detainees. In so doing, this Essay supports the Author’s earlier assertions in Should the Supreme Court Fear Congress?, an essay published in last year’s Minnesota Law Review Symposium on the future of the Supreme Court. In that Essay, the Author argued that the Supreme Court has little reason to fear a backlash from Congress. For identical reasons, the Hamdan Court had no reason to fear Congress. Congress never challenged judicial independence when enacting legislation limiting federal court jurisdiction over enemy combatants. In making this point, this Essay examines both the politics surrounding the Detainee Treatment Act (2005 legislation limiting court power over Guantánamo detainees) and the Military Commissions Act (2006 legislation intended to forbid habeas filings by enemy combatants). The Essay, moreover, makes use of positive political theory to assess the Court’s Hamdan ruling. In particular, the Essay highlights the reasons why the Court would want to protect (if not expand) its institutional turf and, in so doing, limit the executive. Finally, the essay makes some predictions about ongoing federal court review of the Military Commissions Act.
Volume 91 - No. 5
- Note: Address Confidentiality and Real Property Records: Safeguarding Interests in Land While Protecting Battered Women
- The Missing Pieces of Geoengineering Research Governance
- The Moral Psychology of Copyright Infringement
- Of Mice and Men: On the Seclusion of Immigration Detainees and Hospital Patients
- Public Enforcement Compensation and Private Rights
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