Deference to Congress and Boumediene

[Ms Janet Cooper Alexander]

Federalism is about the relations between state and federal  
governments.  Federalism is not implicated in Boumediene, unless  
someone is suggesting that
Tarble's Case is no longer good law and state courts provide an  
adequate habeas remedy for detainees.  The argument that the Court  
should defer to "popular will" as to the constitutional right to  
habeas is not a federalism argument, but a popular sovereignty  
argument.  Individual constitutional rights, and minority rights, have  
traditionally been thought to be the least appropriate subjects on  
which "popular will" should have the last say.
Janet Alexander


pQuoting 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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