This is the website of Abulsme Noibatno Itramne (also known as Sam Minter). Posts here are rare these days. For current stuff, follow me on Mastodon



June 2006

Hamdan v. Rumsfeld

I am actually very very tempted to spend the next few hours reading all 185 pages of the full opinion (pdf), but I am at work and that would be bad. Suffice it to say that I am happy and feel like for once the court is making the clearly correct decision. I am disappointed somewhat (although not surprised) that most of the “conservative” justices dissented. (Or in the case of the Cheif Justice were recused because they had been involved in the lower court opinion that was being appealed.) After all, the notion of strict limits on governmental (and executive) authority have long been a fundamental “Conservative” idea. Not to mention a strict reading of the constitution. No more it seems.

But, 5-3 will do, and things move in the right direction for the moment.

(Although there are dozens of other executive excesses that desperately need to get shot down… if the congress won’t do it like they should, perhaps SCOTUS will get to at least some of them over the next couple of years. Maybe.)

7 comments to Hamdan v. Rumsfeld

  • gregh

    The “conservative” wing could have easily foreclosed this whole issue on the jurisdictional aspect (Scalia’s dissent), and that would have been a perfectly reasonable decision. The Constitution grants to the Congress the authority to establish the jurisdiction of the federal courts, but for the appellate jurisdiction of the Supreme Court and its limited areas of original jurisdiction. Congress acted to limit jurisdiction of the judiciary, and the judiciary (it may quite reasonably be argued) ignored that limitation. One could easily (as Scalia does) that it’s the judiciary that’s acting beyond its strict limits. A “conservative” justice should act to limit the reach of the courts.

    The rest of the decision is a bunch of technical argument that’s too dense for me to pick up by skimming, given that I have no foundation in the basic laws being addressed (outside the AUMF.)

  • Reb

    There goes Greg — already talking like a lawyer!

  • Abulsme

    I was hoping Greg would jump in!

    They didn’t so much ignore that limitation, as spend several pages (pages 15 to 28 of the decision) discussing it and why the majority didn’t think it applied.

    Answer me this though, from my completely uneducated reading… while Article 3, Section 2, Clause 2 of the constitution of the US says “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” couldn’t it be argued that any attempt to remove appellate jurisdiction, unless it was accompanied by legislation replacing that jurisdiction with an acceptable alternative appellate process, would itself be unconstitutional as a violation of the fifth amendment due process clause?

    Since the fifth amendment was after Article III (obviously) it could easily be construed as constraining to what degree congress can exclude things from the court’s jurisdiction (at least without providing acceptable alternate due process, with SCOTUS effectively determining what was acceptible).

    Of course it is interesting that the framers gave that ability to congress in the first place (rather than explicitly defining the boundaries in the Constitution). It really does emphasize yet again that the intention was never really three completely co-equal branches. Congress really was supposed to be dominant in many ways over both the President and the Courts. Checks and balances indeed, but in most cases congress ultimately had the upper hand in many of those. Then SCOTUS gave itself the power to declare laws unconstitutional in Marbury and of course the President has grabbed more and more power practically every Presidency since Washington.

  • Abulsme

    So when is Erica going to weigh in? We need all the “family” lawyers. :-)

  • gregh

    It wasn’t my assertion that they didn’t address the issue, but that the “conservative” point-of-view is that it was ignored, no differently than Thomas might repeatedly argue that the meaning of the Commerce Clause is routinely ignored.

    Congress obviously can’t remove appellate jurisdiction. However, as soon as a court doesn’t have subject matter jurisdiction, it would be forced to give up the matter. Based on my cursory reading of this decision,* Scalia’s dissent makes the argument directly from Clause 2 as you quoted.

    * By tonight, I have to have my 2L law review write-on in, which is a full comment, because I was too lazy to take the easy route last year. I’m doing my citations; when I fell asleep, I was at footnote 90 of 177.

    Now, even in the face of Clause 2, the Court can still consider whether Congress acted unconstitutionally. Or, the Court can simply rule narrowly that they don’t have the jurisdiction. It is certainly more fitting for “conservative” justices to rule narrowly, that they didn’t have jurisdiction, than to rule at all.

    That was really my point. I wasn’t trying pass judgment on the decision, because I just haven’t had time to read it. In fact, I’ve only read the dissents.

  • Abulsme

    So by tonight you will have read and analyzed the whole thing? I wanna see! :-) I meant to print it all out and read it over as light reading this weekend, but I haven’t yet. :-)

  • Abulsme

    As an aside, found a good lay summary here.

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