Academic journal article Notre Dame Law Review

Boumediene's Quiet Theory: Access to Courts and the Separation of Powers

Academic journal article Notre Dame Law Review

Boumediene's Quiet Theory: Access to Courts and the Separation of Powers

Article excerpt

Ronald Dworkin may not have been exaggerating when he referred to the Supreme Court's June 2008 decision in Boumediene v. Bush (1) as "one of the most important Supreme Court decisions in recent years." (2) The Court there held that the Constitution's Suspension Clause: (3) "has full effect at Guantanamo Bay," (4) and that the Military Commissions Act (MCA) of 2006 (5)--which precludes federal jurisdiction over habeas corpus petitions brought by noncitizens detained as "enemy combatants" (6)--fails to provide an adequate alternative to the writ of habeas corpus, (7) As such, the Boumediene majority struck down section 7 of the MCA, (8) only the second instance in which the Supreme Court has invalidated a statute because it unconstitutionally removes federal jurisdiction, (9) and the first time it has ever concluded that an act of Congress violates the Suspension Clause. (10)

Courts and commentators alike have already felled many forests grappling with the hard questions Boumediene leaves in its wake. Just for starters, do other constitutional provisions "ha[ve] full effect" at Guantanamo? (11) Does the Court's analysis of the availability of habeas corpus to noncitizens at Guantanamo open the door--and the potential floodgates--to habeas petitions from noncitizens held elsewhere overseas, particularly in Afghanistan and Iraq? (12) Does the right articulated by the Boumediene majority protect a remedy for claims other than "core" challenges to executive detention? (13) Does it even include a right to be released (into the United States) when there is nowhere else to send those whom the government lacks the legal authority to detain? (14) Indeed, these questions are only a sampling; it will no doubt be years before the direct implications of Boumediene are fully fleshed out. (15)

My project in this Article is not to take up these necessarily fluid questions of application, but to look more carefully at the implications of the "quiet theory" (16) underlying Justice Kennedy's lengthy and complex opinion for the Boumediene majority. In particular, my focus is on what we should take away from his repeated allusions to the relationship between habeas corpus and the separation of powers--a recurring (if surprising) theme of the seventy-page opinion, typified by passages like the following:

   The [Suspension] Clause protects the rights of the detained by a
   means consistent with the essential design of the Constitution. It
   ensures that, except during periods of formal suspension, the
   Judiciary will have a time-tested device, the writ, to maintain the
   "delicate balance of governance" that is itself the surest
   safeguard of liberty. The Clause protects the rights of the
   detained by affirming the duty and authority of the Judiciary to
   call the jailer to account. The separation-of-powers doctrine, and
   the history that influenced its design, therefore must inform the
   reach and purpose of the Suspension Clause. (17)

The Boumediene majority opinion expressly invokes the separation of powers in at least ten additional passages, (18) even though the questions before the Court had to do with the geographic scope and substantive content of the Suspension Clause, and not with a more general alleged violation of the separation of powers (as was the case in Hamdan). (19) Reading Boumediene, one is left with the distinct impression that for Justice Kennedy, at least, the writ of habeas corpus is in part a means to an end--a structural mechanism protecting individual liberty by preserving the ability of the courts to check the political branches.

Thus, at other points in Boumediene, Kennedy took pains to emphasize that "the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme," (20) that, per Alexander Hamilton, "the writ preserves limited government," (21) and, perhaps most pointedly, that "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. …

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