[...] “The Nation Will Live To Regret What The Court Has Done Today.” [...]

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Well, we embark on some deep stuff now, eh guys?

IMHO, too simple, unfortunately, Aye Chi. There’s a reason Constitutional lawyers have a lifetime of education and become re’educated with every daily decision that happens. And again, I’m no lawyer. But what appears obvious to us is, again, filled with history of legal disputes. But you and others have hit upon a popular argument in the Constitutional law arena.

The basics: Congress – the body of elected officials (granted mostly lawyers nowadays) – is tasked with the job to create laws. The Judicial branch is the body tasked with the job of interpreting the laws. Did the Framers set up the Constitution and balance of powers, giving the legislative body the power limit the judicial branch from examination of it’s created (perhaps unjust) laws? In which case, where is the “balance of power”, and how was Congress ever to be checked?

In States, cities and other district governments, elected officials are not necessarily versed in law. Doesn’t stop ‘em from making them, tho. Legislative branches often create laws that are in conflict with others, or inconsistant with precedents and their “interpretations” by the courts. These cannot be sussed out and rectified until a lawsuit is brought to challenge the legislative error. This is, of course, the judicial branch’s entire reason for existing.

There is no logic to allowing a body of legislators to “expand or contract” jurisdiction by a court. They cannot rise above Judicial branch’s review of their legal creations and be… in essence… “above the law” by telling the courts, “hands off” when they feel like it.

This is where we come to the Article III, Section 2, Clause 2, as you quote above:

Clause 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all 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.

Cornell has an excellent page with a somewhat brief (by legal standards) discussion (seriously laden with legal terminology) of the controversy, and historic application, of this battle between the judicial branch and congress over this clause. They call it “The Theory of Plenary Congressional Control “.

(more reading here too. Haven’t pounded thru all of this one yet but be sure to read “The Theory Revisited” about halfway down the page)

Read thru this and you learn there is a history of the early SCOTUS encounters in Congressional battles… most having to do with State’s rights. But perhaps the most telling is in the final summary.

Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to “exceptions and regulations” prescribed by Congress, and the jurisdiction of the inferior federal courts is subject to congressional prescription. Additionally, Congress has power to regulate modes and practices of proceeding on the part of the inferior federal courts.

Whether there are limitations to the exercise of these congressional powers, and what the limitations may be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to “curb” the courts and more frequently to proposed but unsuccessful curbs.1059

Supreme Court holdings establish clearly the[p.780]breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may, through the exercise of its powers, vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights. is an assertion often made but not sustained by any decision of the Court.

Prior historic content before this final summary give some clue as to the battles, and thereby the Court’s working opinion of a Congress usurping the SCOTUS jurisdiction.

Again, remember, this is stuff that can make the eyes glaze over… you have been warned.

By 1861, Chief Justice Taney could confidently enunciate, after review of the precedents, that in all cases where original jusrisdiction is given by the Constitution, the Supreme Court has authority “to exercise it without further act of Congress to regulate its powers or confer jurisdiction, and that the court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice.”1045

Although Chief Justice Marshall apparently assumed the Court had exclusive jurisdiction of cases within its original jurisdiction,1046 Congress from 1789 on gave the inferior federal courts concurrent jurisdiction in some classes of such cases.1047 Sustained in the early years on circuit,1048 this concurrent jurisdiction was finally approved by the Court itself.1049 The Court has also relied on the first Congress’ interpretation of the meaning of Article III[p.778]in declining original jurisdiction of an action by a State to enforce a judgment for a precuniary penalty awarded by one of its own courts.1050 Noting that Sec. 13 of the Judiciary Act had referred to “controversies of a civil nature,” Justice Gray declared that it “was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning.”1051

However, another clause of Sec. 13 of the Judiciary Act of 1789 was not accorded the same presumption by Chief Justice Marshall, who, interpreting it as giving the Court power to issue a writ of mandamus on an original proceeding, declared that as Congress could not restrict the original jurisdiction neither could it enlarge it and pronounced the clause void.1052 While the Chief Justice’s interpretation of the meaning of the clause may be questioned, no one has questioned the constitutional principle thereby proclaimed. Although the rule deprives Congress of power to expand or contract the jurisdiction, it allows a considerable latitude of interpretation to the Court itself.

It is these precedents that I believe has allowed the SCOTUS to pass over arguments made by journalists and bloggers who that insist Congress is allowed to “limit” the court via the Constitution. And BTW, I have yet to see a press article written by a bonafide Constitutional authority purporting this. It’s been all ambitious laymen, like us, so far… all struggling to comprehend why this has happened when it seems so obviously wrong. And all of us very limited in our scope of comprehension.

But hey… we give ourselves (as Phillie Steve says) “high fives” for trying to improve our understanding and learn, right? Healthy debates, and we’re all bound to learn something.

Certainly someone can take this whole concept and argue it before the SCOTUS. But think of it. You’re arguing before justices, asking them to relinquish their interpretative powers and jurisdiction (or have limitations) and hand over legal matters, un vetted, to a body of elected officials. You might as well be asking Congress to vote giving themselves pay cuts annually, instead of pay raises. Like they’d agree to that….

Can Congress slap the courts down on this? I don’t know, but don’t think so. They can, however, remove DTA and the MCA from the law books. That certainly has an effect on the court’s jurisdiction perception. No law, no way for the court to “interpret”, if you get what I mean.

But the base concept is, how can the judicial branch be an oversight/balance to Congress, if all the elected ones have to do is make a law that limits judicial authority in jurisdiction? That’d be one scary country… Especially with the bozos we have in Congress.

As I said, it sounds good in theory when you don’t agree with a decision. But exactly how much power do you willingly want to give to Congress to tie the hands of the judiciary in reality?

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Here’s what I have come up with:

The Constitution, through the Exception Clause, provides Congress the authority to limit the SCOTUS.

Article III, section 2:

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.

More Exception Clause background from Alexander Hamilton in Federalist #80:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.

Congress passed, and President Bush signed the MCA of 2006 [1005(e)(1)] which contains this :

SEC. 7. HABEAS CORPUS MATTERS.
‘‘(e)(1) No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who
has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.
‘‘(2) Except as provided in paragraphs (2) and (3) of section
1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801
note), no court, justice, or judge shall have jurisdiction to hear
or consider any other action against the United States or its agents
relating to any aspect of the detention, transfer, treatment, trial,
or conditions of confinement of an alien who is or was detained
by the United States and has been determined by the United
States to have been properly detained as an enemy combatant
or is awaiting such determination.’’.

So, there you have the Exception Clause being implemented by Congress, signed into law by the President, thus removing the authority of SCOTUS or other Courts to review.

From Hamdan v. Rumsfeld in the DC District Court, Judge James Robertson refused to rule in favor of Hamdan in this case regarding habeas corpus, writing:

“The Constitution does not provide alien enemy combatants detained at Guantanamo Bay with the constitutional right to file a petition for habeas corpus in our civilian courts, and thus Congress may regulate those combatants’ access to the courts”.

***

Justice Kennedy wrote:

“The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say what the law is.”

The last time I checked, Congress wrote the legislation and the President signed it into law, so yes, they do have the authority to say what the law is.

On two separate occasions the Congress has enacted very explicit and specific laws to lawfully and Constitutionally strip the Supreme Court of jurisdiction to hear cases involving non-citizens currently detained outside of sovereign territory held by the United States.

It seems rather apparent that the SCOTUS ignored the Exception Clause and overstepped in its’ ruling yesterday.

This brings to mind President Andrew Jackson who said “John Marshall has made his
decision, now let him enforce it.”

It’s time for President Bush to invite the Court to do the same.

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Yeah this stuff is enuf to make your eyes glaze over, eh?

The post trial is their legal recourse for review status and military tribunals. As long as defined as “enemy combatants”, they have no right to habeas. DTA is the missing piece of the puzzle that is to emulate their habeau corpus rights while in the “vague” status stage.

If they successfully overturn their CSRT in DC district, then they can be allowed those Constitutional rights. This is the step inbetween… get what I mean?

But their legal recourse, per MCA, is exclusive to the DC district (relieving them of enemy combatant status), and then the Supremes. I could be wrong too, but this same information was also reiterated in the concurring opinions from Boumediene v Bush yesterday.

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Oops… I fixed the link.

Your quote from Subchapter VI is for post-trial procedure.

The section I quoted specifically addresses habeas.

I have to read the remainder of the MCA.

Regarding all laws being subject to review by the SC, Article III, Sect 2 says that Congress can make exclusions.

I could be wrong…..

I’m going to do some more reading.

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Must unfortunately beg to differ with you on a few points, Ayi Chi.

MCA granted exclusive rights for review of detainees CSRT status to the DC district courts, *and* to the Supremes… taking it out of the hands of the feds (where they had been attempting to operate heretofore).

Under Subchapter VI: POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS

950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court

That said, all laws passed by Congress can be challenged in the SCOTUS. And the Supreme’s do have the right to interpret such Congressional laws as vague, un Constitutional, etal… striking down the legislation until it is amended to fit the Supreme’s criteria.

uh… what the heck is the link to the voiceover actor site for??

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Here’s another interesting aspect courtesy of SayAnythingBlog.com

It seems that the Supremes ignored the Constitution with yesterday’s ruling.

Perhaps our resident “experts” on all matters Constitutional will shed some light on this.

From Article III, Section 2:

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.

From the Military Commissions Act of 2006:

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The Supreme Court had no authority to issue a ruling on the status of habeas rights for Gitmo detainees per the Constitution itself.

Now, we can debate about whether or not it’s proper for Congress to deny Gitmo detainees access to habeas rights, but that Congress did make such a denial and that the power to do so is explicitly provided for in the Constitution is undeniable.

As far as I can tell, President Bush has no need to even acknowledge that this ruling – unconstitutional by definition – was ever made.

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Yes, Mata.

Great minds and all that.

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Bbart said:

The government is not tasked with maximizing the number of Americans alive, but rather with a limited agenda set forth in the Constitution. And that’s as it should be. If we had a government whose agenda was preventing needless American deaths, we would have
- very low speed limits (to minimize highway casualties)
- smoking banned everywhere
- extensive dietary restrictions
- mandatory annual health checkups

Oddly enuf, everyone of these items listed are being attempted at every turn, and some have been partially accomplished.

Doesn’t exactly reconcile with your point of “the government is not taxed with maximizing the number of Americans alive…”, don’t you think?

PS: ah ha… I see Ayi Chi and I are furiously posting simultaneously with the same perspective!

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The government is not tasked with maximizing the number of Americans alive, but rather with a limited agenda set forth in the Constitution.

Don’t look now, but your ignorance is showing.

If the job of the gov’t is not to maximize the number of Americans alive, then why do we provide flack jackets and helmets and armored vehicles and tanks and the finest field hospitals and so forth to our servicemen and women in uniform?

Of course, preservation of life is the job of the gov’t.

- very low speed limits (to minimize highway casualties)

We have speed limit laws from one corner of this nation to the other. Seat belt laws and laws regarding alcohol too.

- smoking banned everywhere

Smoking bans are in place in every state in the union. Some bans are total. Some are partial. All are aimed at better health and the preservation of life.

- extensive dietary restrictions

We are rapidly headed in that direction. Ever heard of trans-fats?

- mandatory annual health checkups

One plan that was proposed required mandatory enrollment. Perhaps checkups are next.

***

Since you chose to mention the Constitution, I’ll give you some bonus questions:

1) Who does the Constitution cover?

2) Who does the Constitution give total authority to wage war (with the exception of funding)?

3) Where are the Courts given authority over foreign citizens taken into custody on the battlefield of a foreign country?

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