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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Friday, August 20, 2004 ::
    Finally, a few thoughts about Hamdi.

    The majority opinion is a skyhook. It flails about in the arena of legally untethered policy judgments, and then at length alights upon, of all things, Mathews v. Eldridge as its basis of analysis. So questions of national survival (never mind mere "security") get "balanced" by the Court, for all the world as if they were administrative determinations about what kind of a hearing Joe gets before his disability checks get cut off.

    That's because, for this Court, every constitutional issue is a Due Process issue, and every Due Process issue is a matter of "balancing," which is to say, the Court reviewing the legislative decision (or, in this case, the executive one), deciding whether it likes it, and allowing it, disallowing it, or (as in this case) modifying it, accordingly.

    For this, we have to thank first of all Charles Reich -- The New Property, 73 Yale Law Journal 733 (1964) -- for teaching us that there is no problem too minute to be a matter of constitutional law (as in Mathews), and second of all, the Burger Court, for teaching us that no problem is so large that the Court can't solve it by some "balancing test" or other.

    Where does that leave Our Hero? In dissent, disagreeing both with the majority and with the separate and contrasting dissent of Justice Thomas. Yes, a sharp Scalia-Thomas clash; needless to say, this is where to look for the "intellectual feast" (to coin a phrase) in this set of opinions.

    Justice Thomas takes the position taken by the Fourth Circuit below, and, I confess, by me on this blog, before I read the Scalia dissent. The Thomas view is a straightforward, energy-in-the-executive, Curtiss-Wright take on the president's national security powers, bolstered by a lack-of-judicial-competence argument based on separation of powers as well as on -- lack of judicial competence. (The way the word "competence" has changed meaning since the 18th century makes it a lot of fun.)

    So, would Thomas say that Youngstown was wrongly decided? No, because in that case we had a clear lack of congressional authorization (perhaps even a positive congressional disapproval, depending on how you interpret the congressional debate over Taft-Hartley); here, Thomas is convinced (as is the majority) that Congress made a blanket delegation to the President for purposes of dealing with the 9/11 crisis.

    This gets my nondelegation juices going. An assignment of power that broad may well be too broad. Scalia would not agree, because he thinks the nondelegation doctrine is pretty much non-justiciable. See David M. Wagner, American Trucking: The "New Nondelegation Doctrine" is Dead (Long Live the Old One?), 11 U.of Baltimore J.of Env.L. 25 (2003).

    But even if the nondelegation doctrine is not applicable (and there are good reasons, rooted in the history of that doctrine -- don't get me started -- to think it isn't), that doesn't mean we're forced back onto Mathews-type Due Process balancing. "Due process" is a catch-all, given that other parts of the Constitution protect, with greater specificity, rights that, if not specified, might well be inferred into Due Process. And one of these is -- ta daaah -- the "Great Writ" of habeas corpus, and the suspension power of Art. I Sec. 9.

    You see, Yaser Hamdi is a U.S. citizen. Accident of birth, sure; unfortunate, perhaps. But there it is. And in the case law of habeas corpus, only Ex parte Quirin -- described by Scalia as "not this Court’s finest hour" -- stands against the dominant view that U.S. citizens may not be held indefinitely without being charged with a crime; unless Congress has exercised the suspension power, which nobody here claims it has done (though the majority attributes virtually unlimited meaning to Congress's Sept. 18, 2001 Authorization for Use of Military Force, 115 Stat. 224).

    Thomas makes a cogent point: the Suspension Clause allows Congress to suspend habeas, not in any or all cases where "the public Safety may require it", but only "in Cases of Rebellion or Invasion". So suspending the Writ was not an option here.

    Two possible answers:

    1. 9/11 was an invasion within the meaning of the Suspension Clause. Dicey, because the Framers probably envisioned something more like what we did to Iraq (not that there's anything wrong with that) than what the terrorists did to us. I.e., "invasion" may imply occupation. Otoh, it was certainly a physical incursion into our territory with hostile intent and effect. Maybe the word "invasion" has Law of Nations bag-and-baggage that I'm not aware of.

    2. Hamdi was in rebellion. He was nabbed in Afghanistan, bearing arms against the United States. Congress could so find, and suspend the Writ. But does the Suspension Clause contemplate prisoner-specific suspension? Isn't that the real meaning of Bill of Attainder, where the legislature legislates someone's guilt, or gives specific persons diminished procedural rights?

    3. You're right, Justice Thomas: Congress could not have suspended the Writ on the facts prevailing in the aftermath of 9/11. And so Justice Scalia is right: Hamdi has to be charged as a criminal (with all the Due Process that this entails), or released.

    :: David M. Wagner 4:01 PM [+] ::

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