Deference to Congress and Boumediene

[Eric Segall]

I think it is rational to suggest that in both Lopez and Morrison Congress was legislating with regard to a national problem with economic implications and thus those cases should have come out the other way but that the Congress and the President cannot take away habeas corpus rights from people the U.S. arrests all over the world and then bring to a place where the United States has complete control. I am not suggesting either result is correct or incorrect simply that there is no inconsistency, especially in light of the numerous contestable premises, both factual and legal, underlying both cases.

In any event, few if any people believe in deference or activism consistently across the spectrum of cases. Both are simply rhetorical tools.