WP: Court Told It Lacks Power in Detainee Cases

[deminks]

http://www.washingtonpost.com/wp-dyn/content/article/2006/10/19/AR2006101901692.html?nav=rss_nation/special

Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court here that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba.

In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that "no court, justice, or judge" can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future.

Immediately after Bush signed the act into law Tuesday, the Justice Department sent a letter to the U.S. Court of Appeals for the District of Columbia Circuit asserting the new authorities and informing the court that it no longer had jurisdiction over a combined habeas case that had been under consideration since 2004. The U.S. District Court cases, which had been stayed pending the appeals court decision, were similarly invalid, the administration informed that court on Wednesday.

The administration's persistence on the issue "demonstrates how difficult it is for the courts to enforce in the face of a resolute executive branch that is bound and determined to resist it," said Joseph Margulies, a Northwestern University law professor involved in the detainee cases.

[Rex]

1. Hear that judicial system? The executive branch told you to Foff.

And you will take it.

[Zhade]

3. Will they respond to this power grab?

NT!

[Rex]

4. If they don't, we're all screwed.

Or Dems take over (like aquart posted) and we make them all pay in the worst ways possible.

[Toots]

48. How can they respond when they are no longer allowed to even consider it?

Bush* just signed a bill making him officially "the decider". The courts now can only settle housewife issues if even those. There are no longer three branches of government nor in reality two branches. There is only "The Unitary Executive"

[jberryhill]

51. Easy Answer

When you say "no longer allowed to even consider it", I have to ask you - allowed by whom?

Even if a law says "a court can't hear this" - the COURT has to decide whether or not it can hear it.

To make the situation plain:

Assume Congress and the Executive pass a law saying "The Bill of Rights is Repealed, and no court can hear cases arising under this law". You bring a case under that law. A pliant court says, "Sorry, we can't hear that". You now have an appealable denial of jurisdiction by that court. THAT's the decision you take up the line to the Supreme Court, which has to determine whether Congress and the Executive can nullify a Constitutional provision in the absence of a Constitutional amendment.

What the Supreme Court does not do is to draft legislation. It is one thing for Kennedy and Breyer to opine that the Hamdan case proceeded in the absence of enabling legislation. It is quite another thing to put a particular piece of enabling legislation in front of them and have them rule on its Constitutionality.

[cassiepriam]

82. But the SC is in Bush's pocket. We are doomed?

[Zhade]

68. Issue arrest warrants for these criminals.

Or get those who can do so, to do so.

[Name removed]

84. Deleted message

Message removed by moderator. Click here to review the message board rules.

[shanti]

33. they own the judicial system too

for the most part :shrug:

[Rex]

83. That's the bad part about it.

And the MCA made it legal for George to arrest everyone on the SCOTUS. And Congress. Imagine that.

[Tesha]

79. Timne for a new Marbury v Madison...

...where the Court tells Bush exactly how far his executive power reaches,
eben when aided and abetted by a compliant Legislature.

Tesha

[aquart]

2. If we do not impeach, the next president has all this power.

Maybe we SHOULD start saying Hillary is our candidate.

[seafan]

5. I don't think they ever intend for any other party to assume power.

So any worries about other presidents also having these vast powers are nonexistent, in their minds.

[Richard Steele]

12. It seems obvious to me that you are correct.

[shanti]

34. i believe so too n/t

[aquart]

41. Yah. Short sighted and waiting for the Rapture.

They don't have that thing, so necessary to the rest of us, that enables them to reason past a to b....to c and even d e f g ........z. I often wonder if their mothers had martinis at a crucial moment in the pregnancy.

[City Lights]

45. Agree totally. eom

[truebrit71]

77. That is the thought that keeps me up at night...and that is why these mid-

terms are sooooooooooooo important....We simply MUST take back the House, or America is doomed.

[The Brethren]

6. if there is another president.

After watching what this jerk has done to our country and Constitution who is say he won't pass a new law giving himself a life-time term? Seem impossible? Since 2000, I've learned nothing is impossible under this criminal administration. We just saw what he did to the judicial system - he told them to eff-off. How much more blunt does he have to be to get his point across. He's our first official sitting dictator. So much for checks and balances - as long as this new law is allowed to go uncontested, he can do whatever he wants. And has anyone else noticed the timing of the Military Commissions Act of 2006 -- just before the elections.

[Journeyman]

8. Whose to say, even with impeachment, the Government. . .

will want to revoke this control. Power is more easily grabbed than relinquished.

As recipients of a political reality altered beyond anything the wildest thinkers could have imagined just a few short years ago, it will take a remarkable will for anyone to revoke the recent despicable laws, let alone strive to revert our society to what it was before. Certainly, I can see a quick return to some aspects of "normality," but the allure of unbridled power will remain and, despite readily accomplished cosmetic improvements, power's seduction will be a Siren song of indeterminate appeal.

Yet another reason for us to choose very wisely in the coming elections.

[aquart]

20. Amen.

[Name removed]

86. Deleted message

Message removed by moderator. Click here to review the message board rules.

[mikelgb]

23. how do you get the same congress that passed the bill

to impeach the one they enable?

[Name removed]

85. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MannyGoldstein]

7. Have No Fear

Fortunately, the Brave Congressional Dems will stop at nothing, absolutely nothing, to safeguard our civil rights. They will continiue to fight tooth and nail to see that this unprecedented grab for dictatorship is halted*. Since the Mighty Pelosi has waved the club of impeachment, The Smirk is sure to back down any minute now.

*Unless there's a few bucks in it to look the other way. Or something good is on the tube.

[Stephanie]

9. OMFG

What will it take to stop them? Whatever it is it's time.

[aquart]

21. Well, Franco lived almost forever.

Ceausescu (or what that Romanian's name was) didn't. Il Duce didn't. Hitler didn't.

I'd say BushCo was damned smart to buy that land in Paraguay. Did they actually pay for it? How did they pay for it?

[BlueEyedSon]

42. I'm sure the Bushes have cash

[aquart]

65. From where? Do they work?

How much do 98,000 acres cost?

[Occulus]

31. The Mussolini treatment is looking like it may be the only option n/t

[leftchick]

38. one can only hope

:(

[pinto]

10. They "informed" the court. I smell a Supreme Court case.

Bushcos removal of the alien stipulation for Habeas Corpus - courtesy of a compliant Republican Congressional committee - may very well relegate this law into the unconstitutional dustbin if the right case can be brought up for review.

[Taoschick]

13. Congress

Does have the Constitutional right to strip jurisdiction from the lower courts. That would prevent a habeas corpus case from making it to the Supreme court since they would have no standing to hear the case.

We should never have allowed that provision to be included in the bill.

[MannyGoldstein]

15. I Guess Gonzo Gets The Last Laugh

Boy are we dumb shits.

[aquart]

22. "Allowed"? The Republicans wouldn't allow us to do anything.

Which we will, I suppose, remember. Although I know Harry Reid will be courtly and civil.

But some vengeance would be nice. Oh, hell. A LOT of vengeance would be nice.

I want Republican office space in the boiler room. I want their desks next to urinals.

I'm petty and I don't care.

[Tellurian]

25. Our Constitution has been broken..

Bush has systematically ripped the IV, V, VI, VII and VIII amendments to shreds.
Relieving citizens of their right to due process and equal protection.

He is now in the process of stripping the states of THEIR rights.

The resulting additions and deletions of the Constitution make it impossible for him to
be Impeached, at this point in time. It can't happen until the Constitution is fully
restored, which may never happen, in our life time. It's Sad but True..

If Dems retake control next month..it will be an uphill battle for restoration, unless
Republicans break ranks and assist in the FIX. We can't accomplish it without them..
And most likely the reason why, Clinton made the statement the other day:
the radical rethugs are a "small sliver of the republican party"...

We need a majority Congressional vote to begin Constitutional repair.

[Richard Steele]

11. No mere "law" can overrule the Constitution.

This "law" is illegal.

[tkmorris]

14. Trouble is

Someone has to get a case into court to challenge it. The Bush justice dept is telling the courts that they cannot even consider such a case.

This is going to take a judge somewhere to outright defy the White House. Given that we knew this was coming, I am a little surprised that someone hasn't already stepped up to the plate. It's early yet though, and justice is slow. I remain hopeful that someone will find a way to get this into the USSC for a ruling once and for all.

[MannyGoldstein]

17. Hey! Great Avatar! How Fitting

The Republican Song*

What are we gonna do now?
Taking off his turban, they said, is this man a jew?
cause theyre working for the clampdown
They put up a poster saying we earn more than you!
When were working for the clampdown
We will teach our twisted speech
To the young believers
We will train our blue-eyed men
To be young believers

The judge said five to ten-but I say double that again
Im not working for the clampdown
No man born with a living soul
Can be working for the clampdown
Kick over the wall cause governments to fall
How can you refuse it?
Let fury have the hour, anger can be power
Dyou know that you can use it?

The voices in your head are calling
Stop wasting your time, theres nothing coming
Only a fool would think someone could save you
The men at the factory are old and cunning
You dont owe nothing, so boy get runnin
Its the best years of your life they want to steal

You grow up and you calm down
Youre working for the clampdown
You start wearing the blue and brown
Youre working for the clampdown
So you got someone to boss around
It makes you feel big now
You drift until you brutalize
You made your first kill now

In these days of evil presidentes
Working for the clampdown
But lately one or two has fully paid their due
For working for the clampdown
But ha! gitalong! gitalong!

* Oh, OK, Clampdown by The Only Band That Matters
(Joe Strummer is spinning in his grave at 5400 RPM)

[dansolo]

69. Isn't this an "ex post facto" law?

The law possibly may apply to new cases (if it isn't ruled unconstitutional), but I don't see how they can retroactively strip away the courts' authority over existing cases.

[kestrel91316]

76. I'm afraid that any judge with the cojones to take this on is going to

find him/herself charged with treason in wartime, or declared an unlawful enemy combatant and Gitmo-ized.

[Mist]

16. That would be my take on it. How would the * admin. keep a court from

hearing a case? This seems incredible to me--the admin. can't just overrule the Constitution.

[Taoschick]

19. Unfortunately

The Congress can strip jurisdiction from the federal courts. They've told the courts they have no standing to hear any Habeas corpus cases and they have the constitutional right to do so. It's going to take a supermajority (veto-proof) in the congress to get rid of that provision.

[Eric J in MN]

27. The Supreme Court can rule the law against habeas corpus...

...is unconstitutional, if it so chooses.

[Taoschick]

29. How?

If Congress, who has the constitutional power to limit jurisdiction via Article III, strips the court of their jurisdiction over habeas corpus for enemy combatants, they are left with no standing and no appeal to decide.

[Eric J in MN]

30. Because the Constitution says that habeas corpus can only be suspended

...during rebellion or invasion.

[jberryhill]

49. You have bought into a right wing misinterpretation of Art. III

This crazy notion that Congress and the President can render an act unreviewable started floating around about two years ago, and it's time to put the wooden stake into this vampire. It's based entirely on an incomplete reading of the context of that section of Article III.

Yes, Congress can determine the structure of the courts and their jurisdiction. For example, setting up the geographical areas of the appellate circuits, or in the case of the CAFC defining the subject matter of cases to be heard by particular courts.

What Congresss does not have the power to do is to excise Article III - i.e. "the judicial power" - from our system of government.

You have to start with Section 1:

"Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

In other words, there need not be ANY other courts. Congress can abolish them all. Except ONE.

What cases can the Supreme Court decide?

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States,"

ALL CASES arising under the Constitution and federal laws.

Now, the later part of Article III divvies up original and appellate jurisdiction on the assumptiont that there will be inferior courts. However, if there are no inferior courts, then the "judicial power" assigned to the Supreme Court doesn't disappear from the equation. The "judicial power" still extends to all cases arising under the Constitution and federal laws.

Here's the real catch with this notion of throwing the judicial power under a bus. Even if Congress passes a law that says "a court can't hear this", the law is not self-executing. The Court STILL has to decide whether it "can't hear this". THAT decision is appealable right up the line. Then, we reach the point where the Supreme Court can opine on whether by saying "a court can't hear this", Congress has transgressed a Constitutional outer boundary.

That was the essence of the "power grab" in Marbury v. Madison. The question of whether a court can hear a matter is up to the court. Decisions of Congress and the Executive are due a certain deference, but the court cannot say "we think it's unconstitutional, but who are we to decide."

(Although if you read Bush v. Gore carefully, it seems like they did that to some extent)

[Taoschick]

63. This isn't a new concept

It's actually been around for quite a while.

The idea of jurisdiction stripping isn't "right wing" either. It's actually a protection that I wish we'd consider more often. It's a tool we may need in the future thanks to the recent SCOTUS appointments. Those guys aren't elected. They serve for life. So, if we get stuck with a majority of justices that take it upon themselves to, for example, overturn Roe v Wade we're stuck with their decision until they elect to revisit it down the road. The court has shown itself loath to overturn their own decisions in a timely manner but with the ability for congress to remove a specific issue from their jurisdicion, mistakes can be corrected in the next election cycle, not decades down the road. This is a way for us to actually protect the constitution from right wing ideologues. The courts are supposed to be co-equal and the judiciary was never intended to be more powerful than the legislative or executive branches.

[jberryhill]

72. I don't follow...

I think you are equating overturning Roe v. Wade with the Court somehow making abortion illegal. Not wanting to sidetrack here, the state legislatures are the safety valve for that sort of thing.

[Richard Steele]

87. Thanks for that clear and simple explanation.

You should consider starting a seperate thread for
this in GD; I think many of us would find benefit
in reading it.

[Guaranteed]

75. Congress gives statutory subject matter jurisdiction to the courts.

They can restrict it. Article III sets the outer limits of what Congress can authorize the courts to hear.

Basically- this is all Congress. This is all Congress fucking up really, really badly.

I'm pretty angry.

Of course- if Chimpy can exercise power outside of what he is actually authorized, I don't see why the courts can't do the same.

[Straight Shooter]

18. This is obscene.

I thought the GOP was supposed to be the party of law and order.

:sarcasm:

[Demeter]

53. Their Laws, Their Order; a New World Order, the 4th Reich!

[texpatriot2004]

24. Bu*hCo wastes no time, they have a plan...nm

[Tellurian]

28. The Plan has been ongoing since 1997..

All they needed was the Power and Control
to make it happen. This plan began the minute
Clinton took office. They spent almost $100M
to eject him from office in any way possible.

You can start here if you want to understand
the machine we're up against..notice the signers.

http://www.newamericancentury.org/statementofprinciples.htm

[texpatriot2004]

50. I am aware of PNAC nm

[Jack Rabbit]

26. Let the cases be heard by the Courts

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions.

-- Chief Justice John Marshall writing in Marbury v. Madison (1803)

Mr. Bush would not have the authority to tell the courts what they shall and shall not hear, even if he were really President of the United States.

I, Jack Rabbit, American citizen, demand that these cases be heard; I demand that that suspected terrorists be given a fair and impartial trial, as is their right as human beings. I demand that they be charged or released.

We gave fair trials to the Nazi mass murderers after World War II; we will grant them in the future to Bush and his neoconservative war criminals. There is no reason why suspected terrorists should not be granted human rights, including the right to a fair trial and due process under law.

I, Jack Rabbit, world citizen, demand the the United Nations establish an international tribunal for war crimes in Iraq and crimes against humanity arising out of the so-called war on terror. Mr. Bush, Mr. Cheney, Dr. Rice, Mr. Rumsfeld and Mr. Gonzales and those among among their aides who shall be accused of aiding and abetting the prosecution of an unjustified war of aggression against Iraq, the establishment of a secret network of offshore gulags and the implementation of torture as an interrogation method.

I, Jack Rabbit, free human being, shall abide no longer these tyrants.

[MonteSano]

32. Apparently, it's time to destroy the separtion of powers.

The judicial branch is now powerless, if we believe Bush. Fuck him!

[tom_paine]

35. An old old story: The Caeser-Hitler Principle

The barbarians want to possess a civilized nation by burrowing from within.

Every step is a push, the Tyrant says, "I am going to do this. You can sign all the shit you want, make all the proclamations, accuse me all you want. I AM GOING TO DO THIS. Unless you try to physically stop me (which will be signal for escalation and perhaps civil war) I AM GOING TO DO THIS (actually, this isn't one Tyrant, it is a whole filthy cabal of them, but you get the metaphor)."

The civilized man hesitates. maybe this is all the Tyrant wants. maybe if I give in here they will stop. I cannot be responsible for starting escalation which may lead to civil war and at the very least massive unrest.

The civilized man backs down again. The Tyrant has won. Until the next time. Then it's:

"I am going to do this. You can sign all the shit you want, make all the proclamations, accuse me all you want. I AM GOING TO DO THIS. Unless you try to physically stop me (which will be signal for escalation and perhaps civil war) I AM GOING TO DO THIS."

Does this metaphor seem familiar? It should, for be have been going through this same washing-machine routine for some 50-60 incidents and "envelope-pushings" since The Tyrants stole 2000.

This is yet another iteration, sadly.

Think 2000 Florida.
Think the lead-up to the Iraq Invasion.
Think of the Medicare Bill.
Think of each individual sub-episode that lead to the Torture Bill and MCA. At least a dozen line-crossings and discovery of evidence of corruption.
Think of Total Information Awareness (wonder what they are calling it these days).

Etc.

[OneBlueSky]

36. um . . . don't think the courts are gonna like this . . .

judicial review was the subject of one of the very first Supreme Court cases . . . was it Marbury v. Madison? . . . :shrug: (it's been a long time) . . .

[HuffleClaw]

37. a delaying tactic imo

i rather doubt the supreme court will let them screw with habeas corpus.

[leftchick]

39. well it isn't over yet...

Thank God for these Lawyers representing those held captive...

<snip>

On Tuesday, the appeals court granted a petition by lawyers for the detainees to argue against the new law. Vincent Warren, the executive director of the Center for Constitutional Rights, which represents many of the detainees, said yesterday that he expected the administration to file a motion for dismissal of all the cases before the defense challenge is heard.

"We and other habeas counsel are going to vigorously oppose dismissal of these cases," Warren said. "We are going to challenge that law as violating the Constitution on several grounds." Whichever side loses in the upcoming court battles, he said, will then appeal to the Supreme Court.

[symbolman]

40. As I recall the Supreme Court

told Bush this was all a NO NO already. Why can't they use the LAST case brought before that court and make it an issue, so that the SC can Rule AGAIN and make it STICK this time.

GODDAMN IT BUSH, WE SAID NO, Go directly to Jail Do NOT pass GO.

When is the SC going to declare BUSH an "enemy Combatant" against the CONSTITUTION and the Citizens of the US?

I don't really believe an "end run" around the SC is possible, it's all bluster and bullshit.

[BlueEyedSon]

43. Because it was only a "NO NO" until the new retroactive, unconstitutional

MCA was passed

[jberryhill]

70. The Court ONLY Rules on as much as it has to...

The point is that Breyer and Kennedy said, "No, you can't do this because you have no legislation authorizing you to do this."

So Congress passed legislation.

NOW the court looks at the Constitutionality of the legislation.

In the first instance the Court was not going to say "No, you can't do this, and you couldn't do it under any conceivable legislation" because the Court does not deal with hypotheticals or with issues beyond those necessary to dispose of the case in front of it.

[City Lights]

44. Coming from a guy who was put in the WH by the judiciary...

..talk about biting the hand that fed you.

Who will put this little dicktator in his place?

edited for typo

[Vinca]

46. This is scary, scary, banana republic stuff. nt

[enough]

47. Center for Constitutional Rights needs our support:

snip from WAPO article>

On Tuesday, the appeals court granted a petition by lawyers for the detainees to argue against the new law. Vincent Warren, the executive director of the Center for Constitutional Rights, which represents many of the detainees, said yesterday that he expected the administration to file a motion for dismissal of all the cases before the defense challenge is heard.

"We and other habeas counsel are going to vigorously oppose dismissal of these cases," Warren said. "We are going to challenge that law as violating the Constitution on several grounds." Whichever side loses in the upcoming court battles, he said, will then appeal to the Supreme Court.



Center for Constituional Rights:
http://www.ccr-ny.org/v2/home.asp

[Matilda]

52. If the Supreme Court rules that the new law violates the Constitution

and cannot stand, and Bush says he's going to do it anyway, would that
be grounds for impeachment?

This is interesting to me as an Australian because of David Hicks.

[Demeter]

54. As If We Need More Grounds for Impeachment! But Yes

[jberryhill]

71. Yes

In general, any two branches can gang up to nullify the other one.

If the President and Congress want, they can ignore the Court. It's not like the Court can go arrest the President or would send federal Marshalls to go fight the Secret Service and the military.

You can come up with various scenarios in which, say, if the President and the Court wanted to resist Congress, they could do that too.

[ItsTheMediaStupid]

55. IIRC, Any federal court can declare a law unconstitutional and strike it

The appeals process eventually takes it to the supreme court, if all parties push it that far.

[knight_of_the_star]

56. Doesn't always go that far

The SC also has to consent to hear it, if only three justices out of the nine consent to hear the case then the lower court decision is automatically affirmed. Same thing happened with the Moore case and his Ten Commandments rock.

[ItsTheMediaStupid]

64. Thanks for the reminder - the Supremes have to agree to hear it

Otherwise, the lower court decision stands.

My point was that this law can be struck down at any time in the process and then BushCo has to push it to the next level.

Barring a complete collapse of our judiciary, the torture and detain law will be struck down. The only question is how long will that take and who will suffer in the mean time.

Don't get me wrong. It's possible that there are enough corrupt judges to let it stand. If that happens we are all in deep, deep shit.

[librechik]

57. Court Told It Lacks Power in Detainee Cases (no more habeas)

http://www.washingtonpost.com/wp-dyn/content/article/2006/10/19/AR2006101901692.html?referrer=emailarticlepg

Court Told It Lacks Power in Detainee Cases

By Karen DeYoung
Washington Post Staff Writer
Friday, October 20, 2006; Page A18

Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court here that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba.

In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that "no court, justice, or judge" can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future.
...

Immediately after Bush signed the act into law Tuesday, the Justice Department sent a letter to the U.S. Court of Appeals for the District of Columbia Circuit asserting the new authorities and informing the court that it no longer had jurisdiction over a combined habeas case that had been under consideration since 2004. The U.S. District Court cases, which had been stayed pending the appeals court decision, were similarly invalid, the administration informed that court on Wednesday.
...

The new law already has been challenged as unconstitutional by lawyers representing the petitioners. The issue of detainee rights is likely to reach the Supreme Court for a third time.

more at link

[rodeodance]

58. the WH wanted this so so bad--and Congress was happy to oblige!

[frogcycle]

59. would that it could be

fast-paced to the SCOTUS as fast as the annointment of king george was.

We need a BIG dash of cold water on this sham FAST.

If the SCOTUS could just issue a simple opinion that can be widely circulated that this violates the Constitution, pure and simple...

it needs to be clear not just that it needs fine-tuning because of legal jargon issues, but that it is an unconscionable power-grab.

given that two of the "coequal branches" have gone off the reservation, it is incumbent upon the SCOTUS to do its sworn duty. NOT just to respond, but to take a fricking stand.

After all, we are looking at the demise of our very form of government here...

[AnneD]

60. Fasten your seat belts...

it's going to be a bumpy ride.

[rodeodance]

61. the ink was hardly dry before the gleefull letter sent.

[frogcycle]

62. What the Constitution overlooks...

What the Constitution overlooks in its elegant crafting of checks and balances is "what happens when it fails".

Unless a Constitutional remedy can be found, it seems the natural course of events would call in to play:

Declaration of Independence


... Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

It would behoove the SCOTUS, as part of our "Government(s) long established" that "should not be changed for light and transient causes", to set this right, lest it continue in a downward spiral eventually necessitating such drastic response. They need to become activist!

[warrens]

66. We gotta keep a FEW of his laws on the books til 09

So we can use them on this crew of traitors. Name them enemy combatants, waterboard the fuckers til they admit it, then dump them in a secret jail for life. Sounds good to me.

[jberryhill]

73. That's exactly why we should have no laws such as this one

Then, you've thrown away the American system and just turned it into "majority rules."

Reminds me of an old Onion Headline - "Supreme Court Rules the Supreme Court Rules"

[Marie26]

67. SICKENING. nt

[Guaranteed]

74. They may not have statutory SMJ anymore, but they still have alienage

and U.S. as a party jurisdiction under Article III.

[leQ]

78. if this doesn't piss you off, you're not American. (nt)

[Heidi]

80. Kick.

:kick:

[cassiepriam]

81. Amazing. How will the courts respond? nt