Minnesota Law Review

Congress, the Supreme Court, and Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy by Placing Limits on Federal Court Jurisdiction

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.

:: View PDF

News & Events

  • Fall Submissions Open – Headnotes

    The Minnesota Law Review: Headnotes fall submissions period is open. For more information, please visit our submissions page. Share this: on Twitter on Facebook on Google+

  • Vol. 97 Piece Quoted in Mother Jones Article

    A recent Mother Jones article predicting how the Roberts Court would resolve King v. Burwell draws on How Business Fares in the Supreme Court from Volume 97. You can read the article here. Share this: on Twitter on Facebook on Google+

  • Welcome to De Novo

    For nearly one hundred years, the Minnesota Law Review has been a leader amongst academic legal publications. When Professor Henry J. Fletcher launched the journal in 1917, his goal was simple. It was to “contribute a little something to the systematic growth of the whole law.” Since then, the Law [...]

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

Newsletter

cforms contact form by delicious:days