Deference to Congress and Boumediene

[DavidEBernstein at aol.com]

To reiterate my original point, I am not wondering generally about people  
who thought that Lopez and Morrison misconstrued the commerce clause; obviously, 
 there is no inherent inconsistency in believing that those cases were 
wrongly  decided, and that Boumediene was correctly decided.  But I am wondering  
about those who specifically attacked the Rehnquist Court's federalism decisions 
 as not sufficiently deferential to popular will, Congressional perogatives, 
the  considered judgments of the other branches, and so forth.  There is, I  
assume a better argument than "federalism bad (or unimportant), habeas rights  
good (or important).  Or perhaps the specific types of critics of Rehnquist  
Court federalism I refer to above have in fact denounced Boumediene, and I've  
just missed it?
 
In a message dated 6/17/2008 8:36:53 PM Eastern Daylight Time,  
azmybahe at shu.edu writes:

If a  dominant premise of the argument for deference to Congress in the
commerce  clause domain is that the Court should respect Congress'
institutional  competence to make judgments, i.e. about the relationship
between a given  regulated activity and its effect on the national market,
that premise is  missing from the arguments in Boumediene.  Congress did not
formally  suspend the writ under Art. I, s. 9, so this is not an arguably
parallel  instance of the Court rejecting a duly-made congressional judgment
that we  are in fact in a case of "Rebellion or Invasion" or that "the
public safety  may require" suspension (assuming such a question were  even
justiciable).  Rather, interpreting prior common law habeas cases  and cases
involving extraterritorial application of constitutional rights,  the Court
concludes that the geographical scope of the writ should extend  to a place
like Guantanamo; Scalia disagrees with Kennedy's reading of the  precedent
(or even what the absence of direct precedent on the subject  should mean),
but he doesn't suggest that the Court has substituted its  wisdom for
Congress on that question as he would recognize the  applicability and scope
of the writ is a consummately judicial  determination, see, e.g. his dissent
in Hamdi.  The Court also  concludes that the DTA-CSRT procedural scheme
implemented by Congress is  not an adequate substitute for the core
protections of the writ, which also  seem consummately proper judicial
inquiries (and here, Roberts simply  disagrees that Congress' alternative
scheme in fact falls short of  traditional habeas).  In an area affecting
the jurisdiction of the  court, and protections of the writ, what particular
congressional judgment  is owed deference?

Baher Azmy
Professor of Law
Seton Hall Law  School


 



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