Guantanamo, Boumediene, and jurisdiction-stripping: the imperial president meets the imperial court.

• Author: Katz, Martin J.

INTRODUCTION

In Boumediene v. Bush, (1) the Supreme Court struck down a major pillar of President Bush's war on terror: the indefinite detention of terror suspects in Guantanamo Bay, Cuba. The Court held that even non-citizen prisoners held by the United States government on foreign soil could challenge their confinement by seeking a writ of habeas corpus in federal court, and that the procedures the government had provided for such challenges were not an adequate substitute for the writ. (2)

As a habeas corpus case, Boumediene may well be revolutionary. (3) However, Boumediene is more than merely a habeas corpus case. This Article will argue that, at its core, Boumediene should be understood as a case about separation of powers. More specifically, it should be understood as a case about the Court's vision of separation of powers--a vision in which federal courts serve to keep the political branches within the bounds of the Constitution and, most importantly, in which the political branches cannot evade judicial review by manipulating jurisdiction. Hence, this Article will argue, the principles set out in Boumediene have significant implications for Congress's ability to restrict or eliminate the jurisdiction of the federal courts--a practice known as jurisdiction-stripping, which has been the subject of an intense, long-running debate among the giants of constitutional law. (4)

In Boumediene, the Court asserted a forceful view of judicial power that it has hesitated to assert since the Founding. The Court's newfound willingness to assert this power may be criticized as an exercise in judicial imperialism. But it also reflects a healthy inclination to counterbalance several recent, unprecedented assertions of power by the President, accompanied by apparent acquiescence from Congress.

This Article will first summarize the long-running debate over jurisdiction-stripping. It will then show how the principles articulated in Boumediene suggest at least a partial resolution of that debate. Next, it will show that the resolution suggested by Boumediene is not limited to habeas cases--cases involving detention; rather, Boumediene speaks to jurisdiction-stripping more generally. Finally, the Article will discuss the extraordinary significance of the fact that the Court has articulated these principles now, after avoiding doing so for centuries. It will conclude that this timing is neither coincidental nor the product of an opportunistic judicial power grab. Rather, Boumediene represents a timely restoration of a healthy balance of power.

1. A VERY BRIEF PRIMER ON JURISDICTIONSTRIPPING: THREE QUESTIONS--FEW ANSWERS

   Ever since the Supreme Court declared that it had the power to review acts of Congress and the President for constitutionality more than 200 years ago, (5) legal thinkers have wondered whether Congress could control this power by restricting the jurisdiction of the federal courts. The question has tended to come up most visibly in two contexts. (6)

   First, in the wake of controversial federal court decisions, opponents have occasionally proposed laws to strip the federal courts of jurisdiction to hear the type of case that had been at issue (presumably with the idea that state courts will ignore or refuse to apply the controversial precedent). (7) For example, after the Supreme Court decided Roe v. Wade, providing constitutional protection for a right to abortion, some legislators proposed legislation that would strip the federal courts of jurisdiction to hear those cases. (8) Similar legislation has been proposed in response to decisions on school busing, loyalty oaths, school prayer, reapportionment, and the pledge of allegiance. (9) Notably, in this context, while the constitutionality of such legislation has been hotly debated, such legislation has rarely if ever been passed--perhaps as a result of Congressional doubt regarding the constitutionality, or at least the wisdom, of such legislation. (10)

   A second context in which jurisdiction-stripping has been proposed--and actually passed--is during times of armed conflict. During such times, Congress has occasionally attempted to restrict federal court jurisdiction as a way to maximize the President's ability to wage war--for example, permitting him to detain those seen as an impediment to the war effort. (11) It was a statute such as this that was at issue in Boumediene. In the Detainee Treatment Act of 2004 and Military Commission Act of 2006, (12) Congress (1) created a non-judicial procedure for determining whether certain individuals are "enemy combatants," and thus subject to detention, and (2) limited the ability of the federal courts to review such determinations.

   Generally, when Congress has passed, or even proposed, jurisdiction-stripping legislation, it has spawned debate over whether such legislation is or would be constitutional. This debate has engaged the minds of many of the country's finest constitutional scholars. (13)

   It is beyond the scope of this Article to revisit the debates of these constitutional scholars. My purpose here is not to weigh in on the question of how courts should address jurisdiction-stripping statutes (though this Article does implicate that issue). Rather, my purpose here is to address how the Supreme Court--after centuries of largely avoiding the debate--has now suggested answers to certain fundamental questions in that debate. Accordingly, this Part will identify some of the fundamental questions in that debate.

   The primary question is when, if ever, Congress can strip jurisdiction from the federal courts. However, for Congress to be able to do this, it would need to exercise two distinct powers: (1) the power to strip jurisdiction from the lower federal courts, and (2) the power to strip appellate jurisdiction from the Supreme Court. So this section will begin by examining both of those powers before examining whether Congress can combine those powers in order to preclude all federal court jurisdiction. (14) This Part will also show how the Court has gone to great lengths to avoid providing definitive answers to these questions (particularly to the question of the ability of Congress to preclude all federal court jurisdiction).

   1. STRIPPING JURISDICTION FROM LOWER FEDERAL COURTS

      The first question in the jurisdiction-stripping debate is whether Congress can restrict the jurisdiction of the lower federal courts (district courts and circuit courts) to hear a particular type of case. This question assumes that only the lower federal courts are closed--that the Supreme Court's original and appellate jurisdiction remains intact. (15)

      Proponents of allowing this form of jurisdiction-stripping point to the text of Article III, which gives Congress the power to "ordain and establish" lower federal courts. (16) The argument is that (1) the Ordain and Establish Clause gave Congress discretion over whether to create lower federal courts, and (2) if Congress could decline to create lower federal courts, then Congress can limit such courts' jurisdiction. (17)

      Most commentators today seem to accept the basic idea that the Ordain and Establish Clause permits Congress to restrict or even eliminate the jurisdiction of the lower federal courts. (18) Some of these commentators have also suggested that there might be limits on this power. For example, nearly all commentators have suggested that the "ordain and establish" power is limited by substantive provisions elsewhere in the Constitution, such as the Equal Protection Clause; so Congress could not, for example, preclude jurisdiction only over cases brought by African Americans or Catholics. (19) Also, as noted above, most of the commentators who believe Congress has the power to limit lower federal court jurisdiction assume that some alternative court would remain open to hear the cases in question--an assumption which is likely incorrect in a case like Boumediene. (20) But subject to these two potential limits, (21) the "traditional view" is that Congress can exercise its "ordain and establish" power to close lower federal courts. (22)

      The courts, too, (23) seem largely to accept the "traditional view"--that Congress has the power to restrict lower federal court jurisdiction. The Supreme Court has, on at least five occasions, suggested that Congress can limit lower federal court jurisdiction pursuant to the Ordain and Establish Clause. (24) However, none of these cases appears to have tested the potential limits on the exercise of this power. (25) As I will discuss below, Boumediene suggests such a limit. (26)

   2. STRIPPING THE SUPREME COURT'S APPELLATE JURISDICTION

      The second question in the jurisdiction-stripping debate is whether Congress can strip the Supreme Court of its appellate jurisdiction. This question assumes that the lower federal courts, as well as the Supreme Court's original jurisdiction, remain open. (27)

      The idea that Congress can strip the Supreme Court of its appellate jurisdiction flows primarily from the text of Article III, which gives Congress the power to make "Exceptions, and ... Regulations" to the Supreme Court's appellate jurisdiction. (28) At least some commentators have gone beyond this simple textual argument to suggest a structural purpose underlying this textual provision: that the Framers included this language to provide Congress with a means to check the power of the Supreme Court. (29)

      Most commentators accept the idea that the Exceptions Clause permits Congress to exercise such control over the Supreme Court's appellate jurisdiction. (30) However, some notable commentators have suggested that there might be some limits on this power. For example, Professor Hart argued that Congress cannot use this power to destroy the "essential functions" of the Supreme Court, which include maintaining the supremacy and uniformity of federal law. (31) Others have suggested that, at least in certain types of cases, Congress cannot use its...