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

By Katz, Martin J. | Constitutional Commentary, Summer 2009 | Go to article overview

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


Katz, Martin J., Constitutional Commentary


INTRODUCTION

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.

I. A VERY BRIEF PRIMER ON JURISDICTIONSTRIPPING: THREE QUESTIONS--FEW ANSWERS

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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.