Checks for Thee, but Not for We?

Slate's blog on legal issues.
June 13 2008 10:00 AM

Checks for Thee, but Not for We?

I've not much to say about yesterday's Boumediene decision that hasn't been said elsewhere. But let me add one small point:

Critics of the Bush administration's prosecution of the war on terror often argue that the president's interpretation of the law (either on his own, or with Congress) cannot be left unreviewed by the federal courts. Too often such critics have invoked, preposterously, the specter of King George III.

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Justice Kennedy's opinion does not embrace the tone or rhetoric of the Bush administration's more breathless critics, but it does echo ( at pp. 35-36 ) the basic theme that the "political" branches' interpretation of the Constitution cannot be left unreviewed by the courts. The court invokes Marbury v. Madison for the proposition that to defer to the executive or legislative branch's interpretation of the Constitution in this case would give rise to "a striking anomaly in our tripartite system of government." 

Indeed, the court goes so far as to suggest (erroneously) that, absent habeas jurisdiction over Gitmo, "it would be possible for the political branches to govern without legal constraint."

Such challenges to the unfettered discretion of the other branches are quite ironic: After all, in Boumediene, the Supreme Court defined without "check" or "balance" by the other branches the scope of its own constitutional power to issue the writ of habeas corpus to noncitizens imprisoned in Cuba.

Of course, it's hardly novel for the court to determine the scope of its own power: Article III courts make such determinations quite regularly, by reference not merely to the jurisdictional statutes but also to the constitutional doctrines of standing, ripeness, and the like. Yet, so often since 2001, the same groups criticizing the president's assertion of unreviewed discretion with respect to, say, surveillance or detention issues in the current war are the very same groups that applaud the Supreme Court's assertion of unreviewed discretion with respect to the jurisdictional aspects of, say, Massachusetts v. EPA .  (To say nothing of the hell they raise when members of Congress propose to limit the court's jurisdiction by statute.)

Simply put, why do some people applaud the Supreme Court when it asserts unchecked power to define the scope of its own power while they denounce the president (who, unlike the court, is checked by the ballot box, as well as impeachment and the power of the purse) when he attempts to put into effect his definition of the scope of his power under Article II?

Of course, I'm not saying that the court acts improperly when it defines, without a check by the other branches, the scope of its power under Article III or the habeas clause. Hardly. But I'm quite comfortable with the other two branches (or, as the court called them yesterday, repeatedly, "the political branches") giving effect to their own interpretations of the Constitution, too especially when those two branches are subject to review at the polls.

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