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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, June 30, 2006 ::
    Before I mess up my mind with the learned commentary of others, I'll just say this about Hamdan.

    Practically, it may not make too much difference in the short run. For one thing, the President could seek a legislative fix from Congress, as Breyer pointed out; though if Breyer had in mind recent prognostications of an imminent Democratic Congress, then his just-go-to-Congress line was rather snarky.

    Moreover, the President could reconfigure the military commissions so that they are either exactly like courts-martial, or so that they are marginally more like them then they presently are, along with a formal presidential finding that exact parity with courts-martial is not "practicable." The lack of such a statement, and Justice Thomas's reliance on DOD press statements to show the "non-practicability" of court-martial-like procedures, cost the pro-President side some points here. No doubt all remembered the scorn that Justice Jackson, concurring in Youngstown, heaped on "unadjudicated, self-serving statements" by the Executive Branch ("even when the author was oneself.") Obviously, presidential statements can't come pre-adjudicated, and they'll always be vulnerable to a perception that they're "self-serving," but the more formal they are, and the more congressional notice is involved, the better.

    But the real harm in the Hamdan decisions is that, as I think all the dissenters pointed out, the Court brazenly sets itself up as the final arbiter of "military necessity." The consequences might be nil, or they might be revolutionary.

    We'll get some idea of which, the first time someone with standing sues for an injunction against a presidential war order. Imagine the Baker v. Carr of war: while presidential orders under his commander-in-chief powers have traditionally been viewed as nonjusticiable, we hold today that manageable standards exist in our Equal Protection jurisprudence, such that for outmoded, Federalist-Papers-based notions such as energy of the executive, we can now substitute the teamwork of activist lawyers and progressive judges in the managent of American military policy....

    :: David M. Wagner 11:59 AM [+] ::

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