A Stitch in Haste

"It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it."
--Marbury v. Madison, 5 U.S. 137 (1803)

The name most associated with the Bush Administration's expansive view of executive power in time of war is Berkeley professor John Yoo.

Yoo is back again with a gloating op-ed in today's Wall Street Journal / OpinionJournal that sounds like a five-year old snickering to a sibling, "Ha-ha, you got grounded!"

In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.

This is, of course, utter nonsense.

Here is the reality-based version of what happened regarding military tribunals and limitless detention pursuant to the War on Terror: The President was engaging in A (detention with no due process), without legislative authorization or judicial sanction. The Supreme Court, in Hamdan v. Rumsfeld, No. 05-184 (June 29, 2006), said no, you can't do A, but you could do B (detention with some due process), if Congress authorized it.

The President went, hat in hand, tail between legs and precisely as the Supreme Court said he must, to Congress — which, recall, is controlled by a mixture of blind Bush acolytes (e.g., Frist, Allen) and spineless lapdogs (e.g., Specter, McCain) — and asked, pretty please, for B.

Congress, after some vacuous grandstanding, gave him B — and C (suspension of habeas corpus), which had not been addressed by the Supreme Court and which all objective observers (and even some Bush apologists) insist is itself unconstitutional, will certainly be challenged in court and very likely struck down.

This is what Yoo calls "a direct reversal of Hamdan" (which, he insists, was a "power grab" by the Court). Again, Hamdan said the President must go to Congress; the President went to Congress. If that's a "direct reversal," then I want my law school tuition back, because I apparently didn't learn anything there.

More:

The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended "in Cases of Rebellion or Invasion" when "the public Safety may require it." Congress's power is even greater when it is correcting the justices' errors.

I simply cannot fathom what he means by that last sentence — has Congress reversed the Court's single worst error of recent memory — Kelo v. New London, No. 04-108 (2005)? Could it reverse Kelo even if it wanted to?

As for the habeas corpus question: I've seen before this absurd attempt to blank-out Article I, Section 9's express limitation on Congress' power to suspend habeas by leap-frogging instead to the power to establish lower federal courts (Article I, Section 8, Clause 9 / Article III, Section 1) and to grant exceptions to appellate jurisdiction (Article III, Section 2). This twisted logic ignores the simple truth that a writ is not "jurisdiction," and therefore cannot be "excepted" under the Exceptions Clause. It is entirely inapposite. Moreover, as I've blogged previously, no amount of sophistry can change the fact that the War on Terror is not a "case of rebellion or invasion."

It's a bit scary to think that a law professor needs to be reminded of the most basic jurisprudential principle in American law. One that I learned, not in law school, but in high school:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

That was John Marshall. This is John Yoo:

Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court's World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents.

When it comes to preserving basic civil liberties, fealty to judicial review and a commitment to the separation of powers, I'll take swashbuckling any day.

I will never — never — be more afraid of judges than of politicians. And I will always — always — be afraid of those who are.

More thoughts from the New York Times, Balkinization.