The Ball is Now in the Supremes' Court
Now, maybe as early as next week, come the lawsuits challenging the constitutionality of the just-enacted detainee legislation. It is likely to be challenged on many different fronts and its enforcement perhaps even will be stayed pending that judicial review. And, ultimately, the whole shebang could wind up on the steps of the United States Supreme Court. Twice before, remember, in 2004 and 2006, the High Court has rejected the Bush Administration's terror detainee arguments.
I wonder what the Justices are thinking this morning as they read and hear and see coverage of the passage of the new anti-terror law. I wonder if some of them see it, as many others do, as an affront to their own authority to determine and protect the rights of individuals. I wonder if some of them already are thinking of ways in which to discount Congress' effort to take away from all future detainees, including legal residents here in the States, the right to challenge their detention in federal court. And I wonder if some of the Justices understand that they, too, will be judged by history in large part upon how they react to this legislation.
With the passage of this terrible law, the "other" two branches of government have combined to try to ace the judiciary out of the detainee business. Congress and the White House through this legislation have made it measurably harder-- soon, perhaps, we will know whether they have made it legally impossible-- for the federal courts to accept and resolve detainee cases. Soon we will know, too, whether the latest White House plan to try the Guantanamo Bay detainees passes the baseline legal tests that it needs to. A great constitutional showdown is at hand and if anyone tells you they know how it will turn out they are lying.
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