Tuesday, June 24, 2008

Habeas Corpus (Part Two)

In my last post, I began describing potential consequences of the Supreme Court’s decision in Boumedine v. Bush. This is the case where the Supreme Court ruled that enemy combatants held on foreign soil are guaranteed habeas corpus rights. These same rights are denied to military service members and illegal immigrants. Today, I wish to illustrate two more problems with this decision, or unintended consequences and I wish to offer my humble solutions to fix this decision.

I spent some time in my last post talking about the precedent of the Supreme Court. Previous courts have held that the writ of habeas corpus doesn’t apply to enemy combatants captured in a time of war. This court has disregarded precedent of previous Supreme Courts, and its own decision in 2006. If the court is willing to throw out precedent, does this open the way to a Roe v. Wade challenge? The only reason most people give to leave that decision alone is because it has become law of the land, and is now legal precedent. The Supreme Court has shown it is willing to ignore precedent and Roe v. Wade defenders should be worried.

This decision also infringes on the constitutional separation of powers. Our system is designed to give the other branches of government the ability to reign in a branch that abuses its powers. The President created a system for dealing with enemy combatants, the Supreme Court said that system was wrong and needed to be fixed with the help of Congress. The President worked with Congress and Congress passed laws on how prisoners would have their cases reviewed at Guantanamo. The two branches of government elected by the people worked together to find a solution. This doesn’t sound like the rouge actions of one branch. The Supreme Court has decided that it can rule the other branches of government wrong. Five un-elected justices decided they could determine war time policy better than the elected representatives of the people.

How do we fix this? Believe it or not, there are a number of ways. Here are my solutions, from band aid fix to serious fix. The more deliberate the solution, the harder it would be. My first solution is the easiest to do. Congress can now pass laws that detail how court proceedings for foreign combatants are to be carried out. For example, Congress could say that in cases involving enemy combatants, the combatant has no right to review classified information or to interview the soldiers that captured them.

Secondly, Congress could legislate what court (or courts) might have jurisdiction over trials involving enemy combatants challenging their designation. If only one or two courts had jurisdiction, only a handful of judges would need to be trained on dealing with military cases in time of war. Perhaps Congress would decide that these cases can only be tried by FISA courts.

Finally, and my personal favorite, Congress has the ability to change the number of Supreme Court justices. The U. S. Constitution does not spell out the size of the Supreme Court. We have nine justices now, we have had ten in the past, and the original court was set up with six. Congress could pass the Judicial Reconciliation Act of 2008 (named by me) and double the size of the court. 18 justices cuts the amount of power any one judge wields in half. This would be tough to do (it would literally require an act of congress) but would send a clear message to the court, and would reign in some of the more “activist” members.

Like Roe v. Wade, in the court has imposed its own views of how the law should be written, and not how it actually is written. The Supreme Courts job isn’t to create new rights. The Supreme Court is to rule on standing laws. The Supreme Court failed last week. I hope Congress and the President can clean up the courts mess.


pack04 said...

Adding justices to the supreme court is probably the worst thing ever at this time. If we push for this and congress acts on it I see it going one of 2 ways. They do not actually act on it until after Jan. 20, 2009 or if they do act on it, I do not see them confirming anybody until after Jan. 20, 2009. As we are looking at another 2 years of democratic control of the congress and 4 years of democratic control in the white house giving the supreme court a chance to make an overwhelming majority of justices be liberal leaning for as long as they want to stay there is an awful idea. Of course I am basing this on an Obama win, which is an if, but allowing him to pick justices that will back him every step of the way and a congress that will do what ever he asks and no media coverage that will talk bad about him is a very real possibility. That could lead to some socialist, communist, anti-traditional americanist, anti business, far left wing etc. programs and policies that will bring about stuff I can not even imagine. That sir, is a hell of a lot more scary than some terrorist have a day in court.

You call yourself a believer in the "Law of Unintended Consequences." You should have seen the foolishness in your suggestion because while your idea for a court that carries less individual power per person is a good idea, the consequences of it could very well be disastrous.

David Weisman said...

You do realize that expanding the supreme court, like warrantless wiretapping. might give a lot of power to Obama? I say might, I'm not assuming anything.

Andy D said...

It only gives power to Obama if Obama is elected. And if you arn't crazy about adding judges, we could restrict the judges. Most people believe that at least two justices will step down during the next President's term (whether that be Obama or McCain). Congress could act and say that the next two spots are to be removed when the justices step down.

saint said...

Maybe I missed something in the post, and I'm going to show how much politics I have forgotten from school, but isn't there some sort of avenue for the Executive and Legislative branches to keep the Judicial branch in check?

Andy D said...

Good question, and my answer is going to be for Supreme Court Justices or for Federal Judges. There are three ways the other branches can keep the Judicial branch in check:

1) Any Judge (including a Supreme Court Justice) can be impeached from office. Samuel Chase is the only Supreme Court Justice to have ever been impeached. It is extraordinarily tough to do (as it should be) but it can be done.

2) The Congress can set the number of judges. As noted above, this has been done in the past. Congress has added and removed judges from the Supreme Court.

3) Congress can decide the jurisdiction of the courts. The Supreme Court does have a few areas that are spelled out in the Constitution, but even that can be changed. If Congress decides that either federal courts, or the Supreme Court is out of touch with the general populace, it can remove an area from the jurisdiction of the court.

There is one important note to also consider. The Supreme Court has no enforcement power. Technically, the Executive branch of government is the enforcement portion. In times past, the President of the United States has decided not to enforce decisions of the Supreme Court.

Brandon said...

I would like to remind you Andy that justices tend to evolve in their views after they have been on the court. Your plan to add justices that have your same viewpoint could work perfectly, but it could just as easily blow up in your face.

And the Supreme Court has the right of judicial review, meaning they can strike down any law they deem unconstitutional and God knows that just because the idiots in Congress vote on and the idiot-in-chief (and no this is a specific attack on Bush) signs a bill into law doesn't mean that it's good law and should be above challenge.

The Supreme Court did not infringe on the Separation of Powers, they were acting as a check on the executive and legislative branches, something they do all the time. It's what keeps our Supreme Court and the judicial branch from becoming like Russia's powerless courts.

You also missed the most obvious and easiest solution to your crisis, have Congress pass a law restricting the Supreme Court from hearing cases involving the detainees.