Deference to Congress andBoumediene

[Howard Schweber]

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.


Howard Schweber
Dept. of Poli. Sci.
UW-Madison