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.

8 comments:

Marghlar said...

He's probably right, if you define the similarity as being, both are decisions that will irrationally anger the right, despite having pretty small consequences in the real world.

I've long thought that all the ire at Kelo should really have been directed at Berman v. Parker, but I guess nothing ever really happens in this country until it happens to the middle class.

As for Hamdan, all this cricism seems to express a certainty about the result that is laughable given its complexity. There was all this crowing about how the court was being ridiculous in its interpretation of Common Article 3, until Stuart Benjamin over at Volokh pointed out the Justice Thomas himself said the majority's reading of the convention was plausible. And while I disagree about the court's take on the jurisdicitonal statute, it certainly shouldn't be surprising to anyone -- as you pointed out, it's been standard practice for a long, long time. The court has long arrogated the authority to invent clear statement rules when Congress is doing something it doesn't like -- that is hardly new, or a solely liberal invention.

But I guess for conservatives who have to be angry at something, this is as good as anything.

Joe said...

Hamdan stands for the judiciary's unwarranted arrogation of power unto itself, in the face of clear Congressional directive and the Executive's traditional powers during wartime. That is how I see it resembling Kelo - the Judiciary is in fact a branch of government.
Thomas's dissent in Hamdan is brilliant.

ChrisO said...

Boy, he even manages to mention videos of beheadings and France! Yeah, I guess it's a real shame that the Supreme Court doesn't decide cases in an emotional frenzy and a desire for revenge.

As a non-lawyer, one issue about Hamdan has puzzled me. Much is made of the fact that the DTA mandated that courts would not have jurisdiction to hear habeas corpus claims from Gitmo detainees (if I understand it correctly.) Yet my layman's nderstanding is that Congress' power to limit jurisdiction does not apply to SCOTUS. Why couldn't Congress declare every piece of legislation it passes off-limits to review by the Court? I'm not sure why SCOTUS should be unable to fulfill its role, simply because Congress tells it to butt out. I'm sure I'm oversimplifying, but I don't see how this works.

Ann Althouse said...

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.

Joe said...

Thomas mentions beheadings in response to the plurality's holding that conspiracy to massacre civilians is not a violation of the law of war. It is not an appeal to emotion. I do not recall mention of France, though Thomas does discuss WWII and the Civil War. I guess that is an appeal to emotion as well.

CB said...

The rulings seem similar in that both can be "remedied," so to speak, by legislative action. In Kelo, the Court held that the Takings Clause does not prevent property from being transferred to another person, but this could be prohibited by statute. In Hamdan--pardon the oversimplification--the COurt held that the President did not have the authority to do what he did, but he could get it from COngress.

downtownlad said...

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?

Jim Gust said...

downtownlad, which is the third branch of Congress?