Deference to Congress and Boumediene

Martin Sweet msweet4 at
Tue Jun 17 21:21:18 PDT 2008

I believe this is the paper referenced below: For those who
are interested in empirical accounts of constitutional deliberation in
Congress, the leading work would be Mitch Pickerill's Constitutional
Deliberation in Congress: The Impact of Judicial Review in a Separated
System (Duke University Press, 2004).







Martin J. Sweet

Assistant Professor of Political Science

Honors College

Florida Atlantic University

5353 Parkside Drive

Jupiter, Florida 33458


msweet4 at




From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Mark Tushnet
Sent: Tuesday, June 17, 2008 9:27 PM
To: Conlawprof at
Cc: conlawprof-bounces at
Subject: RE: Deference to Congress and Boumediene


I'm not sure whether I qualify as one of the critics being discussed, but my
name having been invoked by Marty Lederman, I thought I'd add my two cents.
One might see the statute in Boumediene as reflecting what I've called the
judicial overhang -- that is, the willingness to enact statutes without
fully deliberating them precisely because of the possibility that the courts
will invalidate them.  There's an article rattling around on SSRN -- I don't
have it at hand -- with a title something like, "What Do You Do When
Congress Enacts a Deliberately Unconstitutional Statute?"  The author points
out, as some may recall, that Arlen Specter voted for the statute after
saying that he thought its habeas provisions were plainly unconstitutional,
and that the courts would strike them down.  There may have been failures of
deliberation in the federalism cases (the strongest case to that effect can
be made about the statute in Lopez, but after that, in my judgment, the case
gets quite weak, as I think Justice White demonstrated in his dissent in New
York v. United States), but a failure induced by the existence of judicial
review isn't one of them.  (Indeed, to the extent that the case can be made,
it would be that the failure of deliberation, if there was one, was induced
by what turned out to be the mistaken belief that there would be no
effective judicial review.)  In short, given the present state of the law
regarding judicial review, a person like me has to worry about the
possibility that statutes will be enacted without being fully deliberated,
but there's no general reason to think that one statute but not another
resulted from the particular failure -- the judicial overhang -- that's
distinctively associated with a position like mine.

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

-----Original Message-----
From: conlawprof-bounces at on behalf of DavidEBernstein at
Sent: Tue 6/17/2008 8:47 PM
To: azmybahe at
Cc: Conlawprof at; conlawprof-bounces at
Subject: Re: Deference to Congress and Boumediene

To reiterate my original point, I am not wondering generally about people 
who thought that Lopez and Morrison misconstrued the commerce clause;
 there is no inherent inconsistency in believing that those cases were
wrongly  decided, and that Boumediene was correctly decided.  But I am
about those who specifically attacked the Rehnquist Court's federalism
 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
good (or important).  Or perhaps the specific types of critics of Rehnquist 
Court federalism I refer to above have in fact denounced Boumediene, and
just missed it?

In a message dated 6/17/2008 8:36:53 PM Eastern Daylight Time, 
azmybahe at 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

**************Gas prices getting you down? Search AOL Autos for
fuel-efficient used cars.

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