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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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    :: Monday, September 29, 2008 ::
    A too-much-overlooked remark by Justice Frankfurter, perhaps applicable to Boumedienne (on my mind b/c our Law Review here at Regent just had a symposium on that and related issues); concurring in U.S. v. Lovett, Frankfurter wrote:
    Not to exercise by indirection authority which the Constitution denied to this Court calls for the severest intellectual detachment, and the most alert self-restraint. The scrupulous observance, with some deviations, of the professed limits of this Court's power to strike down legislation has been, perhaps, the one quality the great judges of the Court have had in common. Particularly when Congressional legislation is under scrutiny, every rational trail must be pursued to prevent collision between Congress and Court....

    For about a century, this Court astutely avoided adjudication of the power of control as between Congress and the Executive of those serving in the Executive branch of the Government "until it should be inevitably presented." Myers v. United States, 272 U.S. 52, 173. The Court then gave the fullest consideration to the problem. The case was twice argued, and was under consideration for nearly three years. So far as the issues could be foreseen, they were elaborately dealt with in opinions aggregating nearly two hundred pages. Within less than a decade, an opinion of fifteen pages largely qualified what the Myers case had apparently so voluminously settled. Humphrey's Executor v. United States, 295 U.S. 602. This experience serves as a powerful reminder of the Court's duty so to deal with Congressional enactments as to avoid their invalidation unless a road to any other decision is barred.
    Justice Scalia cites this case in his concurrence in Lukumi as one of those rare cases where inquiry into legislative motivation might be warranted. With those remarkes about Myers and Humphrey's Executor, I can see what he finds attractive about the Frankfurter concurrence, if not about Justice Black's opinon for the Court.

    :: David M. Wagner 10:43 PM [+] ::

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