"The Supremes Have Made Their Decision, Now Let Them Enforce It," Says Senate

[IglooDame]

US Constitution, Article III, Section 1 states:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."


This section has been widely interpreted to mean that Congress has broad power to both set up lower federal courts and to determine what types of cases those courts will be able to hear and decide on.

As for the Supreme Court, Section 2 states in part:

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

This part of Section 2 gives the Supreme Court "original jurisdiction", the authority to hear certain cases firsthand, without those cases having to go through the lower courts. It also sets up the Supreme Court’s role as an appellate court with the authority to hear cases that have proceeded through the lower courts. The phrase “with such Exceptions, and under such Regulations as the Congress shall make,” has been widely understood as giving Congress the power to prevent the Supreme Court from hearing certain types of cases on appeal.

This one has troubled me. I agree with Drewcifer; making a certain group of people (designated by the Executive, no less) fall into a jurisdictional black hole is simply wrong. However, it would seem that the general interpretation of Article III Section 2 would allow that to happen.

 

[Speedo]

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

If they get to make the rules regarding how to treat people captured, this seems to be well within their authority. Read it and weep SCOTUS.

Speaking of it, would you kindly link me to Congress' declarations of war against Iraq and Afghanistan?

 

[Irish Caesar]

US Constitution, Article III, Section 1 states:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."


This section has been widely interpreted to mean that Congress has broad power to both set up lower federal courts and to determine what types of cases those courts will be able to hear and decide on.

As for the Supreme Court, Section 2 states in part:

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

This part of Section 2 gives the Supreme Court "original jurisdiction", the authority to hear certain cases firsthand, without those cases having to go through the lower courts. It also sets up the Supreme Court’s role as an appellate court with the authority to hear cases that have proceeded through the lower courts. The phrase “with such Exceptions, and under such Regulations as the Congress shall make,” has been widely understood as giving Congress the power to prevent the Supreme Court from hearing certain types of cases on appeal.

This isn't making laws that change the jurisdiction of the Courts; in this case, the law has been passed by Congress, declared unconstitutional by the Court, and re-passed by Congress. Sounds to me like a case of Congress metaphorically flipping off the Court.

 

[Pontiuth Pilate]

The War Clause gives Congress the power to carry out those actions and write appropriate laws. It doesn't give those laws blanket immunity from judicial review.

The law the Senate wants to pass is unConstitutional as ruled by the High Court and the Senate writing it back in is tantamount to ripping the Constitution to shreds and giving Chief Justice Roberts the bird.

EDIT: We even used the same metaphor, Irish Caesar

 

[Tank_Guy#3]

I suppose that they view it as supporting the greater good.

This reminds me of when the Supreme Court ruled that what President Jackson was doing to the Indians was wrong and told him to stop.

President Jackson gave a simliar response.

 

[cgannon64]

Watch, in a couple of years when they lose their majority in Congress the Republicans will claim that the states have the sole right to nullify Congressional laws.

 

[Kayak]

This one has troubled me. I agree with Drewcifer; making a certain group of people (designated by the Executive, no less) fall into a jurisdictional black hole is simply wrong. However, it would seem that the general interpretation of Article III Section 2 would allow that to happen.

It seems to me that to take these cases out of the SCOTUS' juristiction, then Congress would have to create a lesser court which would have jurisdiction over them. It is hard to believe that someone could be considered to be under no law. Especially as the people who hold them are subject to our law. This would go back to how law works in military bases and in embasies I expect.

 

[FredLC]

Well, Joycem10, I'm well aware that constitutional control is a controversial issue, and that you certainly are more aware of the US legislation than me. However, even considering the constitutional text you brought up, I'd say that the congress powers, while broad, cannot be used to hinder judiciary appreciation of issues (after all, isn't the "due process of law", and the "impossibility to prevent judiciary review" major tenets of countries under rule of law?

My interpretation of the clause you brought up is, indeed, that the congress will approve the distribution of competences between courts. Issue is that there is not a single question that it can leave "uncovered", to be dealt with by no court at all.

Taking a particular issue away from SCOTUS competence would only mean that it necessarily concedes it to another court. Of course, for a matter of coherence and discipline, major questions of national and institutional interests should be homed at SCOTUS (not that an incoherent competence distribution is impossible- or even hard - it's just undesirable).

This particular ruling, which place a given question outside the appreciation of judiciary, seems to be a clear violation of the doctrine of checks and balances, which is, BTW, one of the most important contributions of US legal doctrine to the World.

Regards .

 

[joycem10]

Fred, Im not disagreeing with you, thats the language which constitutional law scholars like Tribe will point to when considering the issue of jurisdiction for Federal Courts. The Congress' ability to act in this manner is pretty well established. Conceivably, the Congress could act to eliminate the entire federal judiciary except one supreme court justice (one of my 2cd year profs wet dreams). Think back to the Roosevelt court packing scheme for an example of this power.

The Federal Judiciary (excluding the Supreme Court) was established by the Judiciary Act of 1789 (not positive on the date). Back then the Federal courts were feared and seen a possible tool of repression by the Anti-Federalists, and the establishment of the courts was very controversial. In addition, the Congress has created numerous subject matter courts like tax court, bankruptcy court and admiralty court. All from the authority granted in Article III.

The Congress has acted in this manner before this date. Think back to the Schiavo case when the Congress yanked jurisdiction to jeep the case in state court.

Remember, the US does not have a unitary judiciary, but rather a 2 tiered judiciary. I dont want to go into a 1L discourse of federal v state jurisdiction, but basically the federal district court has jurisdiction only if it is a federal question or there are parties from separate US states (diversity jurisdiction).

If this were a normal situation, there would not be a "black hole", the individuals in question would have to pursue their remedy in state court. When considering individuals held outside the jurisdiction of the US its a different story.

Two approaches I would consider would be:

The Alien Tort Statute of the Judicairy Act which provides "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

Forum shopping for a favorable state court with minimum connections to the individual that would allow it to survive motions to dismiss for lack of jurisdiction. If a detainee was flown, transported through, owed property in, ever resided in, has relatives in, operated a business in or ever physically touched any state Id file there.

 

[FredLC]

I see, I just wanted to understand.

Anyway, Competences is a matter of procedures, not of material law. In such, I believe that the USA system is completely alien to Brazil's, what makes my opinions impertinent at best.

Anyway, as a matter of comparison, Brazilian constitution establishes both that no law will limit the appreciation from judiciary power and every question regarding appreciation of this constitution is subject to supreme court through the appropriate appeal.

Through Brazilian constitution, the original competence would be the State in case of home arrests, and a Federal Court in case of Arrests outside the Brazilian soil. In both cases, the issue would not be originally handled by Supreme Court, but could go up to it through extraordinary appeals.

Regards .

 

[joycem10]

Nothing impertinent about it Fred. When discussing legal interpretation any view is valid. Im sure you have a much better grasp of our system than I do yours.

When you say competence do you mean jurisdiction, ie a court has competence to review a matter.

 

[FredLC]

Yup, while the term jurisdiction is adopted here as well, the most commonly used is competence.

Usually, this is a question of purity of terms. For example, two state courts - first and second - in a big city, have the same jurisdiction (as, they are both in thesis enable to judge a given issue in the area of their action), but which one will actually judge will depend on which will receive the case (here cases of same jurisdiction are always filed in the same place, and than a court is randomly chosen to receive the case). hence, while both have the same jurisdiction, the competence of one (say First Court of Vitória) will make the next (Second Court of Vitória) incompetent from there on.

Anyway, off-topic technicality.

Regards .

 

[joycem10]

Sorry to stay OT but I love comparative analsis of differing legal systems...

Here the Plaintiff would have the option of filing with any court in the state. The defense would file a motion to change venue if he believed the case would be better decided in another court within the state. Both sides would brief (a legal document with thier arguments on the issue) the motion and the court would decide whether to keep it or move it.

 

[Red Stranger]

Speaking of it, would you kindly link me to Congress' declarations of war against Iraq and Afghanistan?

Iraq and Afghanistan are not wars, they're operations. The US hasn't declared war since WWII. Which is more reason why terrorist shouldn't get POW status, but instead get POO status. I don't know what POO status entail though.

 

[Sophie 378]

Oh, so that's all right then.

 

[FredLC]

Iraq and Afghanistan are not wars, they're operations. The US hasn't declared war since WWII. Which is more reason why terrorist shouldn't get POW status, but instead get POO status. I don't know what POO status entail though.

At the very least, the advantage of a civilian trial.

 

[Kayak]

At the very least, the advantage of a civilian trial.

One could hope

 

[eyrei]

Seems to me that all congress expects to get out of this is the ability for the military to hold these people a little longer while this works its way back up to the supreme court again to be ruled unconstitutional. I'm just amazed that 5 democrats voted for it...

 

[Taliesin]

Iraq and Afghanistan are not wars, they're operations. The US hasn't declared war since WWII.

Talk about the dictatorship of vocabulary.

I don't know what POO status entail though.

From all appearances, it refers to what the prisoner is treated like.

 

[Red Stranger]

At the very least, the advantage of a civilian trial.

Huh?
Are you suggesting that if they don't deserve Prisoner of War status we should upgrade them to citizen status?