Military Commissions Act

[Scarberry, Mark]

A question for Prof. Claus based on a brief review of the abstract (from someone who does not teach Federal Courts and thus may be missing the big picture): 
 
Is his view a "unitary judiciary" approach? 
 
Of course the Constitution does not vest all the judicial power of the United States in the Supreme Court but rather in the Supreme Court and "in such inferior courts as the Congress may from time to time ordain and establish." Thus the textual argument for a unitary judiciary (with the Supreme Court as the sole final repository of the judicial power of the United States) would seem weaker than the textual argument for a unitary executive (with the President as the sole final repository of federal executive power). 
 
Even the argument that the federal Art. III judiciary as a whole has the entire judicial power of the United States seems to be undermined by Art. VI, cl. 2, which assumes that state courts will consider federal law issues (and be bound to follow the U.S. Constitution and federal statutes and treaties). Isn't it also the case that from the very beginning Congress has failed to provide for federal courts to exercise all the jurisdiction that would be constitutionally permissible, so that a view to the contrary would have to overcome over 200 years of practice? 
 
All of this leads me to question Prof. Claus's argument that Congress' power to make exceptions to the appellate jurisdiction of the Supreme Court is merely a power to shift matters from the Supreme Court's appellate jurisdiction to its original jurisdiction. I realize the abstract describes Prof. Claus's position as the minority position, and I suppose the full article tackles all of these points head on.
 
Mark S. Scarberry
Pepperdine Univ. School of Law
 
 

 
________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Laurence Claus
Sent: Mon 11/20/2006 11:30 AM
To: conlawprof at lists.ucla.edu
Subject: Military Commissions Act


I'm looking forward to our list's conversations on the constitutionality of the MCA's jurisdiction-stripping provisions as that issue makes its way through the courts. Here's the link to a piece recently posted on the topic:
http://ssrn.com/abstract=935368

All comments welcome.

Laurence Claus
University of San Diego School of Law
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