Straying for a second from the great issue highlighted by the Mark Levin / Jonathan Adler exchange is the fact that when the Court divides into multiple, cross-cutting opinions like it has in Hamdi v. Rumsfeld, you cannot necessarily take at face value the issued opinions’ description of who is concurring and who is dissenting — which must be maddening to non-lawyers. Justice Thomas, for example, is said to dissent, but his vote is actually crucial to obtaining the 5-judge majorit for a key part of the court’s ruling.
The government argued both that the president had inherent Article II power to detain even a U.S. citizen as an enemy combatant, and that even if he didn’t have such power, he obtained suficient authority when Congress’s passed a use of force resolution six days after the September 11 attacks. The Court determined that it did not need to address the president’s inherent power because it agreed his authority under the Congressional resolution ion was sufficiently clear. This resolution, the government further argued, was also sufficient to overcome 18 U.S.C. 4001. Section 4001 — a statute passed largely to prevent a repeat of the WWII internment of American citizens of Japanese descent — forbids the detention of American citizens absent an act of Congress authorizing detention.
Justice O’Connor’s opinion, announcing the judgment of the Court, asserted that the use of force resolution was such an act of Congress and thus satisfied Section 4001. But her opinion is a 4-justice plurality (garnering support only from Chief Justice Rehnquist and Justices Kennedy and Breyer). So where’s the needed fifth vote for this proposition? The “concurring in part” opinion of Justice Souter (joined by Justice Ginsburg) rejects the contention that the use of force resolution was sufficient to satisfy Section 4001, as does the dissenting opinion of Justice Scalia (joined by Justice Stevens). The fifth vote, instead, comes from what is called the “dissenting” opinion of Justice Thomas — the only one of the nine members of the Court who would have sustained the government’s arguments in their entirety.