Deference to Congress andBoumediene
schweber at polisci.wisc.edu
Wed Jun 18 14:47:32 PDT 2008
Ilya Somin wrote:
> On the broader question of deference to congressional views, I think there is a strong case against deference to Congress' views on the scope of its own powers for obvious conflict of interest reasons. The alternative, of course, is not "deference to the views of law professors" but judicial evaluation of relevant evidence.
Which gets us back to precisely the separation-of-powers question I was
raising earlier. Generally speaking, courts should not defer to
Congress on the question of the scope of their powers, since that is a
question of constitutional interpretation. Courts should defer with
respect to findings of legislative facts. Obviously the two categories
overlap, but this is no different from the situation courts face in
reviewing fact-finding by executive agencies. Courts do not defer to
agencies on the question of what constitutes a permissible construction
of their enabling statutes (Chevron) and do not defer to Congress on
questions of delegation or the requirements of presentment (Clinton v
New York, the other Morrison case, Chadha, etc.), but do defer on
questions of empirical fact. The separation of powers line follows the
law-fact distinction. Both are equally fluid and at times uncertain,
but neither is meaningless. I am not suggesting that the tests for
adequacy of a factual record should be the same in Commerce Clause and
agency action cases -- in one instance the Court is reviewing a
judicially-defined constitutional requirement, in the other it is
reviewing the demands of a federal statute -- but the basic model of the
judicial role of "saying what the law is" is the same.
So in the case of drugs, courts should defer to congressional findings
about how easy or difficult it is to identify the country of origin for
drug shipments, but should not defer on the question of what follows
from the answer to that question in terms of the scope of congressional
authority. To go back to the original subject of the discussion, if the
Court in Morrison and Garrett had accepted Congress' description of the
scope of the problem being addressed and its significance, but then
explained that even accepting that description the Commerce Clause did
not provide a basis for congressional action or that the statute as
written was not directed at the problem that Congress had described
(Morrison) -- there would be far less criticism of the ruling. And in
Boumediene, to reiterate, there was no congressional or executive
fact-finding to review because the Suspension Clause was never invoked.
The questions were purely legal ones: does habeas corpus apply to
Guantanamo, and did the measures adopted under the MCA and DTA satisfy
the requirements of habeas corpus.
I must be missing something complicated and subtle about all of this.
Dept. of Poli. Sci.
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