Legislating without Deliberation

By Tobias, Carl | Judicature, January/February 2006 | Go to article overview
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Legislating without Deliberation


Tobias, Carl, Judicature


Lawmakers must employ thorough procedures when legislating changes that may seriously affect individual rights or a co-equal branch.

Several years ago, Third Circuit Judge Edward R. Becker trenchantly admonished Congress to improve the quality of its legislation, especially lawmaking that affects the federal judiciary.' Since Judge Becker published that article, the situation apparently has deteriorated.

Congress has recently exhibited a striking and troubling propensity to enact substantive laws outside the normal legislative processes. Illustrative are recent efforts to legislate in fields that profoundly affect detainees who seek federal court relief from incarceration, and the federal judiciary, a co-equal governmental branch. One of these attempts proved successful and the other did not in the initial session of the 109th Congress.

The first example involves the 500 persons detained by the U.S. as alleged terrorists at Guantanamo Bay, Cuba. On November 10, 2005, the Senate adopted 49-42 an amendment to the Department of Defense Authorization Act, which would have abrogated federal court jurisdiction over the detainees' pending and future habeas corpus petitions. On November 15, senators adopted 84-14 a compromise that tempered some of the amendment's worst features, but it was not a comprehensive solution. In late December, as Congress raced to recess, it passed the compromise with little change, and on December 30 President George W. Bush signed the measure into law. The substance of the amendment, the compromise, and the final version, as well as the severely truncated processes by which Congress approved them, were mistaken.

The amendment purportedly removed Supreme Court jurisdiction to decide the legality of military tribunals created by unilateral executive action four years ago. It also eroded one 2004 Court opinion, which ruled that due process applies to persons labeled "enemy combatants" and prescribed standards for challenging those designations, and a second, which held federal courts have jurisdiction over Guantanamo detainees' habeas petitions. The amendment drastically limited federal court habeas review and seriously undermined separation of powers by assigning basic human rights protection almost completely to the executive.

Sharp criticism of the amendment led to the hastily assembled compromise that the Senate adopted November 15, but this compromise raised more questions than it answered. For instance, it arguably required that the Supreme Court appeal of military tribunals' validity and the 200 pending habeas petitions be dismissed. Moreover, the compromise appeared to govern only detainees at Guantanamo. In late December, lawmakers passed the compromise with few changes.

Congress adopted the amendment, the compromise, and the final legislation after minimal consideration. The Senate Armed Services, Foreign Relations, and Judiciary committees have the responsibility, and the expertise, to address the critical issues raised, but they failed to do so.

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