June 30, 2006
Hamdan as the new Kelo.
Ronald A. Cass paints Hamdan as the new Kelo. That should be hard to do, since Kelo was about deferring to government and putting a low value on individual rights, and Hamdan seems to be the opposite. But a lawyer can always say why two things are alike (and also why two things are different). I've read the piece, and all I can see is that the word Kelo seems to be a cue to stir up anger at the Supreme Court.
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Chriso: Congress has the power under the Exceptions and Regulations Clause, Article III, Section 2, to cut back the appellate jurisdiction of the Supreme Court. (The power to cut back the lower federal courts' jurisdiction comes from a different clause, in Art. III, Section 1.) There are a few things in the original jurisdiction of the Supreme Court that are not subject to cut back. There is a long-standing question about the scope of the Exceptions and Regulations power. The Court routinely avoids the question with statutory interpretation. Arguably, Congress can cut questions out of the Court's jurisdiction precisely to stop the Court from giving answers it doesn't want to hear. On that argument, the power is a deliberate politcal check on the Court. The alternative arguments are many, but they tend to rely on the notion that the Court has an essential function to play that Congress can't undermine.
Republicans control all three branches of Congress.
Is it really that hard for Bush to aks Congress to pass a law that allows him have military trials as he so desires?
downtownlad, which is the third branch of Congress?
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