Deference to Congress and Boumediene

[Ms Janet Cooper Alexander]

Again I ask, what possible effect does Boumediene have on "state  
rights" or "local self-government"?  Ilya, I agree that the  
jurisdictional issue would be an obstacle to state court habeas even  
if Tarble's Case did not stand in the way.  One possibility is to name  
the secretary of defense (a la Hamdi v Rumsfeld) and lay venue in  
Virginia state courts.  Another is to argue, as I believe some  
detainees did before Rasul, that if venue is not available in any  
state, then any state can take jurisdiction.

Quoting Kurt Lash <Kurt.Lash at lls.edu>:

> "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."
>
> Preserving the federalist separation of powers, of course, is every
> bit a "popular sovereignty" issue as is the preservation of the great
> writ.  Both involve the people's original concerns about dangerous
> concentrations of power.  Put another way, the people's liberty has
> both individual and collective aspects vis a vis the powers of the
> federal government.
>
> Thus, from a popular sovereigntist perspective, the same "heightened
> scrutiny" of government denial of habeas relief should also apply to
> government denial of the right to local self-government.  Certainly to
> the Founders both were critical aspects of liberty.
>
> A nationalist reading of the Constitution, of course, would see a big
> difference between laws implicating "state rights" and a law
> implicating individual rights--only the latter deserves hieghtened
> judicial review.  To a federalist, on the other hand, intrusions on
> either aspect of liberty deserves close judicial scrutiny.
>
> Kurt Lash
> Loyola Law School, Los Angeles