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Hamdan and Supreme Court Jurisdiction:
Both Lyle Denniston and Steve Vladeck are blogging about the latest round of briefing in the Hamdan case involving military tribunals at Guantanamo. The briefs address whether the Detainee Treatment Act of 2005 denies the Supreme Court jurisdiction over the case. The government's motion to dismiss for lack of jurisdiction is here; Hamdan's response is here. My prediction: The Court will conclude that it has jurisdiction to reach the merits. My degree of confidence: High.
Wintermute (www):
Assert the power, keep it, use it the way you want to: Human Nature 101. Nixon tapes case convinced me SCt's deference to the Executive has limits. Hope that stays true.
2.1.2006 4:07am
Medis:
I agree. Even before one gets to the basic constitutional issues, this is a question of congressional intent, and it seems pretty obvious to me that the government has not met its burden of showing a clear congressional intent to strip jurisdiction.
2.1.2006 8:34am
Defending the Indefensible:
Prof. Kerr, do you think Ex parte McCardle is apposite, and how do you think Justice Alito will come down on the question of appellate jurisdiction in Hamdan?
2.1.2006 9:04am
Defending the Indefensible:
One interesting thought about the Graham-Levin amendment itself is whether it could ultimately run afoul of a potential "Unitary Judiciary Theory" that Alito, J. might consider. Even if the Court determines the amendment doesn't apply to the instant case, it would make the DC Circuit unreviewable in future "enemy combatant" cases and might implicitly make that a separate and independent "Supreme court" in such instances with its own inferior "executive judiciary."
2.1.2006 9:17am
Chico's Bail Bonds (mail):
Many state court decisions on federal law were unreviewable by the Supreme Court at the start of the republic. That throws a huge wrench in the unitary judiciary theory.
2.1.2006 9:51am
Salmon P. Chase:
"Defending" -- The Court was pretty clear in Felker, in 1996, that McCardle doesn't really mean that much anymore, reading it in light of Yerger to not reach the constitutional issue, since McCardle _could_ have filed an "original" habeas petition pursuant to section 14 of the Judiciary Act of 1789 (modern 28 U.S.C. 2241(a)). That's what the Court sustained in Yerger, and what allowed the Court to duck the constitutional issues vis-a-vis AEDPA in Felker.
2.1.2006 9:52am
Medis:
Chico,

But the Constitution does not refer to state courts as "inferior" courts. That cannot be said of the DC Circuit.
2.1.2006 11:30am
Chico's Bail Bonds (mail):
Medis, I agre that it's true that state courts aren't "inferior" in the sense the DC Circuit is. I don't see how that helps much. If state courts can have the final say on federal law sometimes, why can't the D.C. Circuit - especially when the text of the Constitution specifically allows Congress to make exceptions to the Supreme Court's appellate jurisdiction?
2.1.2006 12:29pm
Medis:
Chico,

Holding aside the exceptions issue for a moment, I think the "unitary judiciary" proponent would simply note that the scope of the unitary judiciary in question is the federal judiciary, and doesn't include state courts. In other words, it doesn't defeat the "unitary executive" theory to note that Governors don't have to take orders from the President.

I think your point is that if state courts are deciding issues of federal law, doesn't that make them part of the federal judiciary in some sense? And the answer is no: nothing in the Constitution mandates that the federal courts have exclusive jurisdiction over cases involving federal law. So, just because a state court decides an issue of federal law doesn't make it a part of the federal court system.

Of course, the exceptions issue is an entirely different and more messy problem. As you may know, the basic (and largely unsettled) question is what counts as a valid "exception", and what would count as a violation of the separation of powers, the Fifth Amendment, or some other constitutional provision that may trump the exceptions power.

I take it the "unitary judiciary" proposition would be that any exception that stripped the Supreme Court's authority over an inferior Article III court would be unconstitutional--or at least strongly disfavored. And the last proposition would be enough to decide this case, because the statute certainly is not clear about whether it does in fact strip jurisdiction.

I should note, however, that I am just speculating--I don't have any strong opinions of my own on the subject of a "unitary judiciary". I do think, however, that it is more than plausible that the scope of such a unitary judiciary would not extend to state courts.
2.1.2006 1:20pm
Chico's Bail Bonds (mail):
Medis,

I agree with everything you said in your last three paragraphs. I just want to clarify why I think state courts deciding federal law is relevant. I am not entirely familiar with the "unitary judiciary" proposition, but I assume that part of it is that the Supreme Court needs to have the final say on federal law. Because state courts have had the final say for many years, I think the history of state court practice rejects that notion.

Perhaps the "unitary judiciary" theory is narrower than what I assumed, requiring the Supreme Court to have the final say over federal law only when a federal court has said something in a particular case. If that is what the theory says, then I agree that the history of state courts is not relevant.
2.1.2006 1:39pm
Salmon P. Chase:
Also, the government _itself_ asserted in a footnote in its motion to dismiss that the Supreme Court _would_ have jurisdiction after the D.C. Circuit review provided for by the DTA... so not even they are arguing for that theory.
2.1.2006 2:04pm
Defending the Indefensible:
I'm enjoying this discussion of "unitary judiciary" theory particularly since I just imagined it. I haven't actually read of any prior discussion of the idea, because I don't think such a concept has ever been necessary to even consider. I'm not aware of any historical circumstance where the Congress has sought to make an inferior court unreviewable.

As Medis said, I think state courts are a separate matter. The relevant Constitutional language is Article III, Section 1. Where the judicial power of the United States does not reach, there is no jurisdiction, unitary or otherwise.
2.1.2006 2:10pm
Duffy Pratt (mail):
It sounds to me like you guys are letting some theory get in the way of the text of the constitution.

The Supreme Court has appellate jurisdiction over any case to which the federal judicial power extends, except where Congress has made exceptions.

There is no difference, as far as the Constitution is concerned, over whether the case arose in the Federal or State system. If it falls within the federal judicial power, then the Court can have appellate jurisdiction over it.

The question is how Congress triggers an exception to the Supreme Court's jurisdiction. The constitution doesn't contain any limitation on Congress' power to limit the Court's appellate jurisdiction. So, if Congress passes a law that limits it, that law will be valid unless it runs afoul of some other Constitutional limitation (e.g. Equal Protection)?
2.1.2006 2:11pm
Just an Observer:
DtI,

Will you be delivering a talk on the Unitary Judiciary at your local Federalist Society chapter soon? Be careful what you say, lest someday it prejudice your nomination to the Supreme Court.
2.1.2006 2:17pm
Defending the Indefensible:
Salmon P. Chase:
Also, the government _itself_ asserted in a footnote in its motion to dismiss that the Supreme Court _would_ have jurisdiction after the D.C. Circuit review provided for by the DTA... so not even they are arguing for that theory.
The plain language of the DTA does not say that.
2.1.2006 2:18pm
Chico's Bail Bonds (mail):
Defending,

Since you made up the "unitary judiciary" theory, which Alito "might consider", why don't you tell us what purpose a "unitary judiciary" would serve, and how, if at all, it is grounded in the text, structure, history or purpose (insert your interpretive method here) of the constitution?
2.1.2006 2:25pm
Defending the Indefensible:
Duffy:

The exceptions clause argument goes back to Ex parte McCardle. Even if that precedent has since been limited to the facts of that case, your statement that the constitution doesn't contain any limitation on Congress' power to limit the Court's appellate jurisdiction relies largely on the dicta from McCardle.

JaO:

It so happens I'm not now and have never been a member of the Federalist Society. I was involved with the Libertarian Party at one time, so I'm probably precluded on that ground.
2.1.2006 2:32pm
Medis:
Duffy,

Right, there would have to be some constitutional problem with the exception. I think the "unitary judiciary" theory would likely be based on a separation-of-powers claim, although as I noted, the text of the Constitution does specify that the other Article III courts are "inferior" courts. That might be enough to say that one Article III court could not be granted appellate jurisdiction without the Supreme Court also being granted appellate jurisdiction.

Incidentally, I realize we are making all this up on the spot--but I think "unitary judiciary" theory is a handy-enough description of how some might prefer to resolve the potential problems in this case.

And it is not as silly-sounding as "super duper precedent", and look how far that has gone.
2.1.2006 2:33pm
Defending the Indefensible:
Chico:

It was more or less a joke, but it should be pretty self-evident.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The text refers to one supreme Court, not several, and the other courts are expressly made inferior. If Congress can give the DC Circuit unreviewable jurisdiction in respect to the DTA, they could just as easily parcel out exclusive jurisdiction on any number of other subjects, and in each respective domain the appointed "inferior" court would be de facto supreme. I don't think it passes the smell test.
2.1.2006 2:38pm
Chico's Bail Bonds (mail):
Defending,

Well, that is not much of a theory at all. As Duffy and Medis brought up, the exceptions clause specifically contemplates that inferior federal courts could, at Congress's discretion, have unreviewable jurisdiction.

I thought at first the "unitary judiciary" was the bastard child of the "essential functions of the Supreme Court theory." That would have been somethint to talk about.
2.1.2006 2:49pm
Defending the Indefensible:
Salmon P. Chase:

I went back and looked at Footnote 8 again. It states:
By vesting "exclusive jurisdiction" in the District of Columbia Circuit, Congress has excluded district courts from the review process, but it has not excluded this Court's eventual participation. This Court presumably could exercise its certiorary jurisdiction to review a decision of the District of Columbia Circuit concerning the validity of a final decision of a military commission. See 28 U.S.C. 1254(1). [Emphasis added.]
This is very hedged language. Hamdan is presently in the Supreme Court on certiorari, and the administration argues that Congress' intent (notwithstanding what cosponsor Senator Levin and others thought they intended) was to strip appellate jurisdiction of Hamdan, even sub judice. Assuming the Supreme Court agreed, why couldn't subsequent certiorari be stripped just as easily?
2.1.2006 3:01pm
Defending the Indefensible:
Chico:

What's your opinion of Justice Alito's "unitary executive" theory?
2.1.2006 3:04pm
Medis:
Chico,

Actually, I'm not sure "the exceptions clause specifically contemplates that inferior federal courts could, at Congress's discretion, have unreviewable jurisdiction." That is because the Supreme Court could not only have appellate jurisdiction over federal courts, but also over state courts. So, the exceptions clause could simply be referring to the possibility that the state courts could have unreviewable jurisdiction, and does not necessarily apply to inferior federal courts.

Moreover, even if inferior federal TRIAL courts could have unreviewable jurisdiction, that doesn't mean that inferior federal APPELLATE courts could have unreviewable jurisdiction. As DtI points out, if Congress could do that (create a federal mcourt system with trial courts and appellate courts, but no review by the Supreme Court), then the Supreme Court would really no longer be supreme.

Which is not to say the exceptions clause clearly rules out any of this--but it also does not clearly rule it in.
2.1.2006 3:04pm
Chico's Bail Bonds (mail):
Medis,

You're right I overstated my case and that those are all textually possible distinctions, I just don't buy them. The trial court / appellate court distiction has a little something to it because the Supreme Court isn't very competent at fact-finding or at reviwing fact-finding, at least compared to how competent it is at reviewing legal issues. Nevertheless, trial courts are going to construe difficult questions of law sometimes. If its a problem for appellate courts to be unreviewable ("supreme"), I don't see why it wouldn't also be a problem for trial courts to be unreviewable.

I see no reason at all why it is ok for state courts to be unreviewable, but not federal appellate courts. It's true that state courts are not part of the federal judiciary, and that therefore they wouldn't be "supreme" over the supreme court in that sense. But so what? They would still be deciding federal law without possibility of supreme court review.
2.1.2006 4:00pm
Chico's Bail Bonds (mail):
Medis,

If we went back to the real old days where Congress actually made fine-grained policy decisions instead of delegating them to agencies, I would be all for Alito's unitary executive theory. I think it would be insane for Congress to delegate discretion solely to the President to the same extent it delegates discretion to agencies. I don't see Congress taking up this responsibility, though.

I can't argue that Alito's view isn't right textually.
2.1.2006 4:19pm
Salmon P. Chase:
Defending -- I'm not saying Congress _couldn't_ at least try to strip subsequent 1254 jurisdiction (although I think that would raise constitutional problems). I'm saying they _didn't_ here, at least on the government's own view of the DTA.
2.1.2006 5:40pm
Defending the Indefensible:
Salmon:
I'm saying they _didn't_ here, at least on the government's own view of the DTA.
The administration's own view of the DTA is peculiar to begin with. There is nothing in the act to take away jurisdiction now which could not be reinterpreted to take away jurisdiction later. That is to say, if the administration wants to read it a different way in six months or a year, they can say then they think 1254 jurisdiction was stripped by the present statute.
2.1.2006 6:56pm
Duffy Pratt (mail):
Defending,

With all due respect, I don't think the exceptions clause "goes back" to Ex Parte McCardle. I think you are putting the cart before the horse. The exceptions clause is part of the text.

Medis,

The exceptions clause says that Congress can make exceptions to the Courts appellate jurisdiction, and that jurisdiction fall over the federal judicial power. It doesn't say anything about state courts or inferior federal courts. Sure somebody could read that into the text. Lots of things get read into the Constitution for arbitrary or fanciful reasons. But a sensible reading of the document says that Congress can limit the Courts appellate jurisdiction, and there is no other limitation put on that power in the text of the document itself.
2.1.2006 8:56pm
Defending the Indefensible:
Duffy, you have an interpretation of the text which has not been tested by the Supreme Court since Ex parte McCardle, and even when they did so in that case it was dicta which did not necessarily bear on the decision. Just because you have a textual theory does not mean that the court would agree.
2.1.2006 9:13pm
Duffy Pratt (mail):
Of course, the Court can and will do whatever it wants. The text still means what it says, especially in areas where the text is pretty clear.
2.1.2006 10:08pm
Medis:
Duffy,

But the text of the exceptions clause itself is not the only possible source of constitutional limitations on Congress's use of the exceptions clause. There is also the rest of the Constitution, including the rest of Article III.
2.1.2006 11:14pm
minnie:
Since you made up the "unitary judiciary" theory, which Alito "might consider", why don't you tell us what purpose a "unitary judiciary" would serve...

I don't know if DTI's discovery will serve any purpose, but it's sort of nice to have it around, now that it's here :)
2.2.2006 12:23am
Dave:
I'm not a lawyer, and and I haven't read the government's brief on why they think the DTA is a reason to kill the Hamdan case, but I read Hamdan's lawyers' response, and found it extremely convincing, both in terms of the law's text and in terms of congressional intent (the idea that Congress intended to kill this case is preposterous, in light of statements made by Leahy, Levin, Durbin, Feingold, Reid, and Kennedy all saying that their decision to vote for it depended on not stripping the court of its jurisdiction on pending cases). The administration is seriously overreaching--again.

I find it more than a little frightening that this case may be the last time the courts can review detention without charge, ever, if the government succeeds in getting Hamdan dismissed. There are literally hundreds of cases in the lower courts where the judges are waiting to see what the Supreme Court does with Hamdan.

, at stake is not merely when judicial review of the President’s assertion of power will take place, but whether such review will take place at all. On the government’s view, all pending suits by Guantanamo Bay detainees must be dismissed, and only a very limited class of claims may later be brought when (if ever) final decisions are entered by the commissions. Most of the foundational challenges to the commissions could never be brought at all. ... The DTA does not simply delay consideration of the questions presented in this case, but precludes any court from ever considering them at all. In many cases, the Act provides absolutely no right to judicial review, much less a right to review in a timely and meaningful manner. By permitting review only after a final judgment, the statute precludes entirely any claim that a prisoner is being held unlawfully without trial, a claim at the core of the right to habeas and of no small significance in light of the powers asserted by the President. See, e.g., Rasul, 542 U.S. at 473; Hamdi v. Rumsfield, 542 U.S. 507, 525 (2004); Rumsfeld v. Padilla, 542 U.S. 426 (2004). By the same token, the DTA provides no review for a person who is allegedly being held for trial, but is never given one. Moreover, even if a trial is held, review is not guaranteed unless the inmate receives a sentence of more than ten years’ imprisonment, § 1005(e)(3)(B), thereby permitting the exclusion of any judicial review for defendants with lesser sentences. In addition, the Executive may unilaterally suspend the right to review of a conviction indefinitely in any case by refusing to approve a verdict, thereby precluding it from being “final.” Nov. 13, 2001 Mil. Order, § 4(c)(8).


Dave
2.2.2006 8:00am