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Not a word about presidential power, Andy? You argue for exapnded judicial review in the context of war, which is fine, yet little attention is paid to the role of the commander-in-chief’s authority. Habeas is not technically or literally a due process proceeding, except for the fact of the writ itself. There’s nothing in the Constitution that supports a contrary position. In fact, the due process clause, certainly when ratified in 1791, would have been, in many ways, otherwise repetitive. But if one believes that habeas, beyond the right to know why one is detained, is a substantive due process proceeding, then in the context of this case, I’d like to know what that would look like. O’Connor outlines what she’d like, but leaves much latitude for interpretation by the lower courts. Is it a mini-trial, with witnesses, cross-examination, etc.? If not, why not?

Thomas defends the principle of executive authority over matters of war, which makes the argument re invasion irrelevant, i.e., it assumes the country is at war, invasion or no invasion. Hence, his lengthly defense of the president’s war powers. If Congress had acted to suspend habeas, and Hamdi challenged Congress’s action on some basis, I have no doubt Thomas would have spent as much time on suspension as Scalia, who seemed to believe that if Congress doesn’t act in this regard, the president has no constitutional recourse. But Congress didn’t act, and suspension is irrelevant in this case. That’s why it deserved short attention by Thomas. The fact that Congress hadn’t acted in no way restricts the president from exercising his constitutional authority, and the extent of that authority was the subject of the challenge. The president has specific constitutional power that is broad relative to war and Congress’s power wasn’t at issue. And, without some compelling constitutional basis for judicial intervention, which I don’t see here, the judiciary ought not trump the executive here. The underlying assumption that these 9 justices, and their lower court colleagues, are better qualified to balance individual liberties against national security interests, is unwarranted. And the president’s actions as to Hamdi are not excessive in any event. I think we can agree that in the companion case, Rasul, this same court demonstrated that it is not better qualified than the president.



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