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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, May 12, 2006 ::
    Mike Luttig: There, um, goes the judge.

    PowerLine scorns the theory that Judge Luttig was motivated by the Bush Administration's change of stance in the Padilla case. Sure, the buckets of money that Boeing no doubt offered must have been a factor. But the impact of the Padilla business can't be so quickly dismissed.

    Here Judge Luttig busted his buttresses to bring in a unanimous panel opinion upholding the President's power to declare an American citizen, arrested on American soil, to be an enemy combatant -- and then, faced with a cert petition and uncertainty about the outcome from Higher Authority*, the administration says, never mind, he's just a criminal after all, we can try him according to normal criminal procedures.

    The Administration will say it still insists on, and values, the principle of the Luttig panel opinion; it's just that the application of that principle to Padilla's case changed, in the judgment of those who must make such decisions. But Luttig might answer that his colleagues on the Fourth Circuit only joined the opinion because they bought the argument that treating Padilla as an enemy combatant was one of those, whatya call 'em, "compelling state interests." And now it's not something that need be done at all?

    As one who occasionally teaches Con Law II (including Equal Protection and substantive due process), I can appreciate that when the government claims a c.s.i., or any legal equivalent thereof, the interest in question had just better really be compelling, given what a c.s.i. finding amounts to -- a license to violate otherwise-applicable constitutional rights.

    I can't be sure what Luttig's motives were, but it's hard not to sympathize with his doctrinal position.

    * Here at Regent we know who "Higher Authority" really is, but in the U.S. Courts of Appeals, there is a tendency to refer in this fashion to the U.S. Supreme Court.

    :: David M. Wagner 10:51 AM [+] ::

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