Guantanamo, Boumediene, and Jurisdiction-Stripping: The Imperial President Meets the Imperial Court

Article excerpt


In Boumediene v. Bush, (1) the Supreme Court struck down a major pillar of President Bush's war on terror: the indefinite detention of terror suspects in Guantanamo Bay, Cuba. The Court held that even non-citizen prisoners held by the United States government on foreign soil could challenge their confinement by seeking a writ of habeas corpus in federal court, and that the procedures the government had provided for such challenges were not an adequate substitute for the writ. (2)

As a habeas corpus case, Boumediene may well be revolutionary. (3) However, Boumediene is more than merely a habeas corpus case. This Article will argue that, at its core, Boumediene should be understood as a case about separation of powers. More specifically, it should be understood as a case about the Court's vision of separation of powers--a vision in which federal courts serve to keep the political branches within the bounds of the Constitution and, most importantly, in which the political branches cannot evade judicial review by manipulating jurisdiction. Hence, this Article will argue, the principles set out in Boumediene have significant implications for Congress's ability to restrict or eliminate the jurisdiction of the federal courts--a practice known as jurisdiction-stripping, which has been the subject of an intense, long-running debate among the giants of constitutional law. (4)

In Boumediene, the Court asserted a forceful view of judicial power that it has hesitated to assert since the Founding. The Court's newfound willingness to assert this power may be criticized as an exercise in judicial imperialism. But it also reflects a healthy inclination to counterbalance several recent, unprecedented assertions of power by the President, accompanied by apparent acquiescence from Congress.

This Article will first summarize the long-running debate over jurisdiction-stripping. It will then show how the principles articulated in Boumediene suggest at least a partial resolution of that debate. Next, it will show that the resolution suggested by Boumediene is not limited to habeas cases--cases involving detention; rather, Boumediene speaks to jurisdiction-stripping more generally. Finally, the Article will discuss the extraordinary significance of the fact that the Court has articulated these principles now, after avoiding doing so for centuries. It will conclude that this timing is neither coincidental nor the product of an opportunistic judicial power grab. Rather, Boumediene represents a timely restoration of a healthy balance of power.


Ever since the Supreme Court declared that it had the power to review acts of Congress and the President for constitutionality more than 200 years ago, (5) legal thinkers have wondered whether Congress could control this power by restricting the jurisdiction of the federal courts. The question has tended to come up most visibly in two contexts. (6)

First, in the wake of controversial federal court decisions, opponents have occasionally proposed laws to strip the federal courts of jurisdiction to hear the type of case that had been at issue (presumably with the idea that state courts will ignore or refuse to apply the controversial precedent). (7) For example, after the Supreme Court decided Roe v. Wade, providing constitutional protection for a right to abortion, some legislators proposed legislation that would strip the federal courts of jurisdiction to hear those cases. (8) Similar legislation has been proposed in response to decisions on school busing, loyalty oaths, school prayer, reapportionment, and the pledge of allegiance. (9) Notably, in this context, while the constitutionality of such legislation has been hotly debated, such legislation has rarely if ever been passed--perhaps as a result of Congressional doubt regarding the constitutionality, or at least the wisdom, of such legislation. …