Judges Who Would Be KingThe judiciary is on an unprecedented power trip.
Posted Friday, Aug. 14, 2009, at 7:15 AM ETWhen a federal judge ordered 17 Chinese Uighurs, detained at Guantanamo Bay, released into the United States last October, he took to its logical conclusion the judiciary's increasingly bold effort to supervise the president and Congress. Justifying his ruling in the face of Congress' exclusive constitutional power over when, which, and how foreign nationals may enter the United States, Judge Ricardo Urbina reasoned that "our system of checks and balances is designed to preserve the fundamental right of liberty." He saw his order as necessary to that end. But if he's right, then the judiciary itself is the unchecked branch of government. And while judges have expanded their power before in our history, never have the claims to supremacy of some of them been so extreme.
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StumbleUponJudge Urbina's order, reversed on appeal and the subject of a pending petition for Supreme Court review, is one of an increasing number of rulings that have brought the federal judiciary deep into national-security territory that once was almost entirely reserved to the political branches. Another federal district judge recently ordered the release of Mohammed Jawad, originally detained at Guantanamo Bay for having maimed a U.S. solider in Afghanistan. And other judges have taken similar steps in habeas corpus actions brought by war-on-terror prisoners to obtain their release.
These rulings necessarily second-guess presidential decisions about who should be detained as an enemy fighter in wartime. The principle underlying them is summed up in Justice Anthony Kennedy's oft-quoted statement that to free the president and Congress from judicial supervision would amount to a holding that "the political branches have the power to switch the Constitution on and off at will."
Kennedy made this claim in his 2008 majority opinion in Boumediene v. Bush. That case is the Supreme Court's most recent war-powers decision and articulated a strikingly expansive view of judicial power. Abandoning settled precedent that denied judicial review to aliens captured and held overseas by American forces, the court ruled that anyone detained in an area sufficiently controlled by the United States (Guantanamo Bay) could seek release through a habeas corpus petition to the federal courts. It reasoned that the absence of judicial review in such cases would amount to a license for the "political branches to govern without legal constraint."
Boumediene's rationale is equally applicable to geographic areas like Guantanamo or Bagram and to areas of governmental power, such as the conduct of armed conflict, reserved by the Constitution to the political branches. If the absence of judicial review is equivalent to an absence of "legal constraint," then the courts must be the final arbiters on every question involving an exercise of presidential or congressional power.
The problem with this view is obvious. If there is no aspect of government over which the courts do not have the final say, then under the guise of saying "what the law is," as the 1803 case Marbury v. Madison put it, judges become the little kings they so often remind the president he is not. This is especially the case today because a number of the traditional constraints on judicial power have been severely eroded.
First and foremost is the venerable political question doctrine. Under this rule, federal courts have refused to resolve questions involving matters committed by the Constitution to Congress or the president. The doctrine has been applied both out of prudence, because judges are ill-suited to develop and assess the information relevant to formulating foreign and national-security policy, and because the Constitution established a genuine separation of powers among the three branches of government. The conduct of American foreign-policy and military actions overseas is, of course, at the very core of those powers reserved to the political branches.
Second, judicial power has also been constrained by the Constitution's "case or controversy" requirement, which limits federal court authority to matters involving actual litigants who have a defined interest in some claim that is subject to judicial resolution and remedy. This prerequisite to any federal lawsuit is generally called "standing."
Over the past 60 years, however, both the requirement that a litigant must have standing and the political question doctrine have lost much of their force. Like pornography, judges know standing when they see it, and it is not much of a "check" on judicial authority. With regard to the political question doctrine, in Boumediene, Kennedy actually suggested that the Supreme Court's historic refusal to second-guess the president's conduct of hostilities had more to do with the "limited duration" of the nation's previous wars than the Constitution's clear disposition of war powers to the executive and legislative branches. In a doth-protest-too-much moment, the court said that it may no longer enjoy the "luxury" of not defining "the outer boundaries of war powers" because future conflicts, and particularly the war on terror, may be of a less determinate nature.
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Critics of the Supreme Court's recent habeas rulings always couch the facts in melodramatic terms of the Court supervising whom "American troops may detain on the battlefield." The problem with this argument is that they can never seem to produce any bona fide examples of detainees who were actually apprehended in the actual heat of military action. Instead we get people who were turned over by their enemies for reward money, or criminals who were seized as so-called "warriors" in the "war" on terror. Only we can't really call them that, because that would implicate the traditional rules that apply to prisoners in real wars, so we try to classify them as "enemy combatants" whom we can abuse and hold indefinitely.
No wonder the Court has seen the need to step in. If the executive wanted to pursue aggressive tactics against foreign civilians under the guise of "war," then it at least had the responsibility to adhere to the rules that have traditionally governed wars. Instead, it tried to have it both ways -- i.e., to claim the right to exercise all of the powers associated with war, but insist it was bound by none of the responsibilities or limitations that come from war.
Thank God the Court has moved to reign in these abuses. I guess I could get more worked up about hypothetical abuses of judicial power that might theoretically come from rulings such as Boumediene, if it weren't for all the real abuses of executive power that the courts are trying to rectify (like detaining innocent Uighurs for years on end).
-- mattcliff
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