Deference to Congress and Boumediene
SLevinson at law.utexas.edu
Tue Jun 17 21:12:29 PDT 2008
I confess that what I find so frustrating about this entire discussion is the notion that Congress in fact engaged in serious deliberation before passing the MCA. Instead, it was a perfect example of a Repuublican Congress (plus some scared Democrats) responding to the pre-election commands of their leader in the White House, just as Daryl (no relation) Levinson would have predicted. (Whatever Arlen Specter did, it was neither to deliberate or to take his oath of office seriously. Instead, he behaved as a partisan Republican hack, presumably because he was scared that he might lose his chairmanship of the Judiciary Committee.) When the Republican Chief Justice describes Congress as having solemnly deliberated, we should take that with more than a grain of salt.
One could easily say, of course, that the principal reason that Congress is awakening from its somnolence is because it is now controlled by Democrats who see partisan advantage in (altogether justifiably) discrediting the authoritarians in the Executive Branch. But the point is that the central reality of modern politics is the party system and the role that the President plays a party leader, and the discussion of "deference," especially when we have an "undivided" government, regrettably manages to ignore that fact. (Consider the fact that almost no Democrats objected to Bill Clinton's unilateralism in the 1990s that wasn't so different fromW.'s as we might wish.) Nor, for that matter, do I remember all that many Democrats objecting to the "anti-terrorism" bill of 1996 that, among other things, included the evisceration of most of the habeas procedures available to inmates on death row.
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