Deference to Congress and Boumediene

marty.lederman at marty.lederman at
Tue Jun 17 20:54:15 PDT 2008

Baher is absolutely correct that Boumediene, whatever else might be said about it, really has very little to say about deference to the political branches.  There was no assessment or judgment to defer to -- it's not as if Congress concluded that the CSRT/CTADC process was the equivalent of habeas and the Court disagreed; indeed, as Kennedy stresses, the whole point of the statute was to cut back severely on what habeas would offer.  The only real questions, then, were whether these detainees were protected by habeas, and, to a certain extent, the meaning of the Swain "functional equivalent" test.  Why would or should the Court defer to Congress on either of those questions?

But now that I think about it, the same might be said of Lopez and Morrison, each of which also had little to do with deference.  In both cases, Rehnquist basically *agreed* with the factual assumptions made by Congress -- the chain of reasoning by which Congress concluded there would be a substantial effect on interstate commerce -- but concluded that such effects simply didn't cut it for purposes of the Commerce Clause.

And once deference is out of the picture, I genuinely fail to see what the cases have in common.  Yes, they both involve judicial review of congressional action -- but that's true of countless cases, and there are very few observers who think the Court should always, or never, invalidate federal statutes.  

I know many people who think Lopez and Morrison were rightly decided and that the Court got it wrong in Boumediene.  I disagree on all three counts, but it wouldn't have occurred to me to think the two positions are mutually exclusive or in tension -- to view, say, Scalia and Thomas as hypocritical because they were in the majority in Lopez/Morrison but dissented in Boumediene.

Which leads me to think that perhaps David B. must have been meaning to get at something else entirely . . .  

-------------- Original message ----------------------
From: Baher Azmy <azmybahe at>
> 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
>              DavidEBernstein at a                                             
>              Sent by:                                                   To 
>              conlawprof-bounce         marty.lederman at,         
>              s at          Conlawprof at           
>                                                                         cc 
>              06/17/2008 07:23                                      Subject 
>              PM                        Re: Deference to Congress and       
>                                        Boumediene                          
> No, but those who specifically argued that the Court should defer to
> federal legislation, should be modest about second-guessing the other
> branches,  should respect democratic outcomes at the federal level as
> indicated by the  passage of legislation by large Congressional majorities,
> should respect  "popular sovereignty, and so forth, should at least
> presumptively think that  Boumediene was wrongly decided.
> In a message dated 6/17/2008 6:49:09 PM Eastern Daylight Time,
> marty.lederman at writes:
> Is the  implication that those of us who think Lopez and Morrison were
> wrongly decided  must also think that Boumediene was wrongly decided?
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