ACSBlog: The Blog of the American Constitution Society: Guest Blogger: Judicial Review of the War on Terror

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August 9, 2004 10:17 AM Posted By John Questions & comments 38

Guest Blogger: Judicial Review of the War on Terror

by Erwin Chemerinsky, Alston and Bird Professor of Law, Duke Law School

Although much has been written about the Supreme Court's three decisions concerning enemy combatants, there has been relatively little discussion about the implications of the cases for separation of powers. In all three cases--Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla--the Bush administration took the position that the President has inherent power to hold individuals as enemy combatants and that no court has the authority to review such detentions.

If the Court had accepted this argument, there would be major implications for separation of powers. No prior Supreme Court decision has even hinted at such broad inherent presidential power. There is no stopping point to the Bush administration's argument; under it, the President could order that any person be held indefinitely simply by labeling him or her as an enemy combatant. Also, the role of the judiciary would be radically changed. Marbury v. Madison expressly authorizes judicial review of executive actions when the rights of individuals are at stake. The Bush administration position would eliminate this role when a person is designated as an enemy combatant.

It is telling that in the three cases decided on June 28, only one Justice--Clarence Thomas--accepted the Bush administration claim of inherent authority. In the Hamdi decision, Justice O'Connor's plurality opinion said that it was not addressing the claim of inherent power to detain enemy combatants. But Justice O'Connor's opinion expressly held that courts may review detentions of American citizens apprehended in a foreign country to ensure due process.

Justice Scalia's powerful dissent in Hamdi also can be viewed from a separation of powers perspective. He maintained that the government never can hold a person as an enemy combatant unless Congress suspends the writ of habeas corpus. One of the most basic aspects of separation of powers is that almost always it takes the actions of two branches of government to do anything under the Constitution. That is exactly what Justice Scalia was implicitly saying in arguing against unilateral, unreviewable inherent presidential power to detain enemy combatants.

Obviously, the decisions are important on many levels. But one of the most important aspects of the cases is their implications for separation of powers.

Written By:Zoooooooom On August 9, 2004 10:27 AM

Chemerinsky cuts right to the heart of the detainment cases here. I was disappointed that the media focused so hard of the due process aspects of the decisions, when they also included such a powerful statement about Separation of Powers.

America is not a monarchy. Hamdi has kept it that way.

Written By:MB On August 9, 2004 10:37 AM

Who'd of thought Scalia would write such a beautifully liberal opinion. I guess even a blind squirell gets a nut.

Written By:John On August 9, 2004 11:27 AM

The Times just today reviews a book that expresses concerns over the "imperial presidency" that refers to these decisions: http://www.nytimes.com/2004/08/09/books/09SHAT.html

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See link below for more on Thomas as our next Chief Justice. And remember, he's only 56.

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Scalia's dissent has nothing to do with liberalism. Essentially in keeping with his hard positivist method of legal analysis, his opinion seeks less to protect civil rights than to advertise the necessary procedure whereby they can be trampled. It is of course laudable to protect the constitution's power-sharing design.

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