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Title: GOP rep: 'No president is allowed to burn the First Amendment’
Source:
The Hill
URL Source: http://thehill.com/homenews/house/3 ... ed-to-burn-the-first-amendment
Published: Nov 30, 2016
Author: Mark Hensch
Post Date: 2016-11-30 19:10:50 by Hondo68
Keywords: Impeach Trump, scofflaw, hates BOR
Views: 120276
Comments: 265
Rep. Justin Amash (R-Mich.) on Tuesday defended the constitutionality of flag burning, saying President-elect Donald Trump would violate freedom of speech if he cracked down on it.
"Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment," Amash tweeted.
Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment. https://t.co/nVkq6WcbHV— Justin Amash (@justinamash) November 29, 2016
Trump earlier Tuesday floated severe penalties for flag burning, mentioning loss of citizenship or a year in jail.
“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” he tweeted.
Trump did not specify what inspired his 7 a.m. tweet about flag burning, which is considered protected speech under U.S. law. The Supreme Court ruled in Texas v. Johnson in 1989 that burning the American flag is allowed under the First Amendment.
A spokesman for Trump on Tuesday said he agrees with Trump that the controversial act should be outlawed.
“I think most Americans would agree with me that flag burning should be illegal. It’s completely despicable,” Jason Miller told CNN’s “New Day."
Rep. Sean Duffy (R-Wis.) told CNN he disagrees with Trump, though.
“I don’t think we want to make this a legal issue. So I disagree with Mr. Trump on that, and the court is probably right," Duffy said.
“I think the court is probably right that we want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag, even though so many of us who love our country and love our flag object to it.”
House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech.
“We have a First Amendment right. We’ll protect our First Amendment. That’s what the court has upheld,” he said on MSNBC’s “Morning Joe” on Tuesday.
Poster Comment:
House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speechAlready there are the beginnings of an impeach Trump movement in the HOR, and he hasn't even taken office yet. (1 image)
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"Congress thought it could? It didn't get out of committee."Ah! So your conclusion is that it didn't get out of committee because it was unconstitutional?
No, your claim of Congress thinking they could legally enact your unconstitutional legislation cannot be shown by an act that did not get out of committee. My conclusion is your supposed evidence does not support your bogus conclusion.
#227. To: tpaine (#219)
The SCOTUS lacks authority to issue opinions repugnant to the the Constitution.All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution.
Clearly, you are very confused about legal things.
SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.
The Court decided in Obergefell that laws prohibiting same-sex marriage are unconstitutional. Congress has no lawful authority to pass a law prohibiting same- sex marriage. The Court in Roe v. Wade decided that laws prohibiting all abortions were unconstitutional. Congress has no lawful authority to pass a law prohibiting all abortions.True,Congress has no such authority, nor does the Court have any except to issue it's opinion on constitutionality. Court opinions do not change the Constitution.
The SCOTUS opinion interpreting the Constitution is binding. SCOTUS says what the law is. They may change a prior interpretation and separate but equal goes from constitutional to unconstitutional. SCOTUS says abortion is a constitutional right and it is treated as a constitutional right until they change their interpretation or the Constitution is amended.
Once the Supreme Court has decided that something is unconstitutional, their opinion prevails over all others.The Courts opinion remains an opinion, not a law.
SCOTUS decides cases. It's opinions are its decisions. It is empowered to interpret the Constitution, and it's interpretation is enforceable. It is the function of SCOTUS not to mae the law, but to interpret it and say what the law is.
You act to prevent legal same-sex marriage or legal abortion, as defined by the court, and you may find your ass jammed in a cell. All can freely ignore your bullshit without legal consequence.
The opinion of SCOTUS is binding. Your wacko, dingbat opinions are not.
#228. To: nolu chan (#223)
Bankruptcy court judges are appointed to 14-year terms.
What a pathetic cut and paste data dump, with not one factoid on point.
You got your ass handed to you, Shit-For-Brains
#229. To: nolu chan (#224)
"Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." See Farrand's Records of the Federal Convention, Volume 2, page 341.
No "requirement" was called for. I already spanked you once on that feeble and dishonest strawman, Shit-For-Brains. I guess ya like being humiliated.
#230. To: nolu chan (#225)
Advisory opinion. Such may be rendered by a court at the request of the government ore an interested party indicating how the court would rule on a matter should adversary litigation develop
The invitation has NOTHING to do with how the Court would rule on a matter should adversary litigation develop.
Another swing and a miss, Shit-For-Brains.
#231. To: nolu chan (#227)
SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.
That's exactly what the Court did in Obergefell v. Hodges, Shit-For-Brains. And by the way, opinions are NOT decisions. Decisions may be rendered without any written opinions.
Your ignorance is like a bottomless septic tank.
However, opinions frequently contain advisory opinions in the form of dicta. You remember, that's a previously made point you fled. Rather cowardly.
#232. To: misterwhite (#216)
So your conclusion is that it didn't get out of committee because it was unconstitutional?
Logic ain't his long suit.
You know, as Congress debated the legislation, President Donald Trump could innocently ask the Court (and its members individually) if they had any concerns with the proposed lawmaking. Sort of a speak now or forever hold your peace message.
I suspect advisory opinions from the Court and its members would be quickly forthcoming.
#233. To: Roscoe (#232)
"You know, as Congress debated the legislation, President Donald Trump could innocently ask the Court (and its members individually) if they had any concerns with the proposed lawmaking. Sort of a speak now or forever hold your peace message."
Yes, but after he strips their jurisdiction on some high-profile issue. Say, "Under God" in the Pledge of Allegiance.
That might loosen their tongues a little on future cases.
#234. To: nolu chan (#227)
"The SCOTUS opinion interpreting the Constitution is binding."
Because SCOTUS said so in Marbury v Madison (1803). The U.S. Constitution does not give them that power. The court seized it and the people were content to leave it at that.
But in the last 75 years, starting with "selective incorporation", every single controversial issue we have today is the result of judicial activism. The court is out of control, acting against the will of the majority, and is deciding issues that should be decided by Congress.
Which is why action is required.
#235. To: nolu chan (#226)
"No, your claim of Congress thinking they could legally enact your unconstitutional legislation cannot be shown ..."
Sure it can. That fact that they attempted it showed they thought they could do it. And it did pass the House.
It died in a Senate committee for unknown reasons. My guess is that they were gutless and chickened out.
But you have zero proof otherwise. To conclude it failed because it was unconstitutional is folly.
#236. To: misterwhite (#233)
Yes, but after he strips their jurisdiction on some high-profile issue. Say, "Under God" in the Pledge of Allegiance.
That would be a wonderful shot across the bow.
#237. To: Roscoe (#236)
"That would be a wonderful shot across the bow."
I prefer 'brilliant' but I'll settle for wonderful.
It's an old, harmless case that dealt with forcing students to say the Pledge of Allegiance containing the phrase "under God". And no, it wasn't the "forcing" part that presented a problem to the 9th Circuit.
Removing judicial review would simply leave "under God" in the Pledge. Anything else is left to the school.
#238. To: nolu chan (#227)
The SCOTUS lacks authority to issue opinions repugnant to the the Constitution.
All three branches of our federal government, and our State/local governments, lack authority to make law, or to issue opinions repugnant to the constitution.
Clearly, you are very confused about legal things. --- SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.
And if it's decisions are repugnant to The constitution, they are null and void. - -- In any case, they do not change the Constitution, as even poor roschump agrees in #231.
The Court decided in Obergefell that laws prohibiting same-sex marriage are unconstitutional. Congress has no lawful authority to pass a law prohibiting same- sex marriage. The Court in Roe v. Wade decided that laws prohibiting all abortions were unconstitutional. Congress has no lawful authority to pass a law prohibiting all abortions.
True,Congress has no such authority, nor does the Court have any except to issue it's opinion on constitutionality. Court opinions do not change the Constitution.
The SCOTUS opinion interpreting the Constitution is binding. SCOTUS says what the law is. They may change a prior interpretation and separate but equal goes from constitutional to unconstitutional. SCOTUS says abortion is a constitutional right and it is treated as a constitutional right until they change their interpretation or the Constitution is amended.
Nope, not binding, as the other branches and the people can ignore such interpretations, and/or, as you admit, amend the Constitution. ---- Even the dimwitted robertpausen agrees that The U.S. Constitution does not give them that power.
The Courts opinion remains an opinion, not a law.
SCOTUS decides cases. It's opinions are its decisions. It is empowered to interpret the Constitution, and it's interpretation is enforceable.
Only enforceable if the other branches agree to enforce. Get real...
It is the function of SCOTUS not to mae the law, but to interpret it and say what the law is. --- You act to prevent legal same-sex marriage or legal abortion, as defined by the court, and you may find your ass jammed in a cell.
Only if the other branches agree with the Court.
-- Thanks for making your stupid circular argument, as you've made even the other chumps here realize how wrongheaded you think.
#239. To: Roscoe (#230)
nc #225
And in case it still did not penetrate your extraordinarily thick skull, there is the following:U.S. Supreme Court
Flast v. Cohen, 392 U.S. 83 (1968)
[...]
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
[...]
And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay).
[...] The Court quoted Charles Alan Wright, Federal Courts 34 (1963).
Footnote 14 of Flast reads:
The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 365 U.S. 157 (1961), and cases cited therein.
In United States v. Fruehauf, 365 U.S. 146 (1961), SCOTUS said:
The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's "judicial admission") is the issue posed by the fifth theory above -- the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement -- "whether a loan of money," every loan of money, as such, "comes within the [statute's]... prohibitions."
We do not reach that question on this appeal. For we cannot but regard it -- abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face -- as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327; Rescue Army v. Municipal Court, 331 U.S. 549; United Public Workers v. Mitchell, 330 U.S. 75; Alabama State Federation of Labor v. McAdory, 325 U.S. 450; Arizona v. California, 283 U.S. 423.
"The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." [Parker v. Los Angeles County, 338 U.S. 327 (1949)]
"From Hayburn's Case, 2 Dall. 409, [nc - 2 U.S. 409 (1792)] to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. The same policy has been reflected continuously not only in decisions, but also in rules of court and in statutes made applicable to jurisdictional matters, including the necessity for reasonable clarity and definiteness, as well as for timeliness, in raising and presenting constitutional questions. Indeed, perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress. E.g., Judicial Code, §§ 237, 240." [Rescue Army v. Municipal Court, 331 U.S. 549 (1947)] "As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite." [United Public Workers v. Mitchell, 330 U.S. 75 (1947)]
"This Court is without power to give advisory opinions. 2 U.S. 301; Muskrat v. United States, 219 U.S. 346; Stearns v. Wood, 236 U.S. 75; Coffman v. Breeze Corps., supra. It has long been its considered practice not to decide abstract, hypothetical or contingent questions, Giles v. Harris, 189 U.S. 475, 189 U.S. 486; District of Columbia v. Brooke, 214 U.S. 138, 214 U.S. 152; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 301 U.S. 355; Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419; United States v. Appalachian Electric Power Co., 311 U.S. 377, 311 U.S. 423, or to decide any constitutional question in advance of the necessity for its decision, 36 U.S. 553; Trade Mark Cases, 100 U.S. 82; Liverpool, N.Y. & P. S.S. Co. v. Immigration Comm'rs, 113 U.S. 33, 113 U.S. 39; Burton v. United States, 196 U.S. 283, 196 U.S. 295; Arkansas Fuel Oil Co. v. State of Louisiana, 304 U.S. 197, 304 U.S. 202." [Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945)]
[Shithead Roscoe] The invitation has NOTHING to do with how the Court would rule on a matter should adversary litigation develop.
Another swing and a miss, Shit-For-Brains.
What an ignorant shithead. And what a weak response.
The federal courts have refused to issue an advisory opinion since first asked for one in 1790.
It seems my memory of Secretary Alexander Hamilton seeking an advisory opinion and being rebuffed by Chief Justice John Jay was not misplaced after all. Hamilton's effort was in 1790 and Jefferson's effort was in 1793.
Louis Fisher and Katy J. Harriger, American Constitutional Law, 10th Ed., Vol 1, Constitutional Structures, Separated Powers and Federalism, Carolina Adademic Press, 2013, p. 77:
Advisory OpinionsThe case or controversy requirement was tested in 1790 when Secretary of the Treasury Alexander Hamilton sought the advice of Chief Justice John Jay about a pending legal issue. Resolutions adopted by the Virginia House of Representatives had challenged the right of the national government to assume state debts. Hamilton regarded this resistance as "the first symptom of a spirit which must either be killed or it will kill the Constitution of the United States" and urged that the "collective weight" of the three branches be employed to repudiate the resolutions. Jay replied that it was inadvisable for the Court to join such action. 1 Charles Warren, Supreme Court in United States History 52-53 (1937). Similar efforts by Secretary of State Thomas Jefferson in 1793 to obtain advisory opinions were rebuffed by the Court. The Justices considered it improper to make extrajudicial decisions, noting that the Constitution gives the President the express power to obtain opinions from the heads of the executive departments.
Louis Fisher served as Senior Specialist in Separation of Powers for the Congressional Research Service of the Library of Congress.
- - - - - - - - - - - - - - - - - - - -
Randy E. Barnett, Constitutional Law, Aspen Publishers 2008, pp. 887-88:
Perhaps the earliest such limitation was the refusal of the Supreme Court to issue "advisory opinions" to the other branches in advance of a case or controversy. In 1792, the very first Congress enacted a statutory scheme by which U.S. circuit court judges—who were then also Supreme Court Justices—were to consider the pension claims of Revolutionary War veterans and inform the secretary of war of the nature of the claimant's disability and the amount to be paid. The secretary had the discretion to follow the court's recommendation or not. All five Supreme Court Justices— Wilson, Blair, Cushing, Iredell and Chief Justice Jay—sitting as circuit court judges in New York, Pennsylvania, and North Carolina expressed their opinions that this scheme was unconstitutional. Here is how the Pennsylvania panel explained its objections:
1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the constitution in the courts of the United States; the circuit court must, consequently, have proceeded without constitutional authority.2d. Because, if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and consequently, with that important principle which is so strictly observed by the constitution of the United States.
In response to these objections, Congress modified its pension scheme to eliminate this role of the judiciary.
That is not an advisory opinion. It is an explanation of why the court refused to be used to participate in an unconstitutional scheme developed by the legislative branch.
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Otis H. Stephens, Jr. and John M. Scheb II, American Constitutional Law, 5th Ed., Vol. 1, Appendix D, Glossary of terms, p. D-1:
advisory opinion. A judicial opinion, not involving adverse parties in a "case or controversy," that is given at the request of the legislature or the executive. It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.
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#240. To: Roscoe (#231)
SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.[Shithead Roscoe] That's exactly what the Court did in Obergefell v. Hodges, Shit-For-Brains. And by the way, opinions are NOT decisions. Decisions may be rendered without any written opinions.
I didn't think anyone could be this fucking stupid and want to document it for the whole world to see.
Whether it is given in writing, or read from the bench, the opinions of the court are its decisions, shithead.
Black's Law Dictionary, 6th Ed.
Opinion.The statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based.
See also, Hayburn's Case, 2 U.S. 409, 411 (1792)
“2d. Because if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department.
Black's Law Dictionary, 6th Ed.
Judgment. The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties.
The opinion of the court includes the decision or judgment and sets forth the reasoning for said decision/judgment.
However, opinions frequently contain advisory opinions in the form of dicta.
No, dumbshit.
Otis H. Stephens, Jr. and John M. Scheb II, American Constitutional Law, 5th Ed., Vol. 1, Appendix D, Glossary of terms, p. D-1:
advisory opinion. A judicial opinion, not involving adverse parties in a "case or controversy," that is given at the request of the legislature or the executive. It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.
Court opinions are only rendered when they involve a case or controversy. By definition, a dictum in a court opinion cannot be an advisory opinion.
#241. To: Roscoe, misterwhite (#232)
Logic ain't his long suit.You know, as Congress debated the legislation, President Donald Trump could innocently ask the Court (and its members individually) if they had any concerns with the proposed lawmaking. Sort of a speak now or forever hold your peace message.
I suspect advisory opinions from the Court and its members would be quickly forthcoming.
The Court, innocently saying fuck you since 1790.
Louis Fisher and Katy J. Harriger, American Constitutional Law, 10th Ed., Vol 1, Constitutional Structures, Separated Powers and Federalism, Carolina Adademic Press, 2013, p. 77:
Advisory OpinionsThe case or controversy requirement was tested in 1790 when Secretary of the Treasury Alexander Hamilton sought the advice of Chief Justice John Jay about a pending legal issue. Resolutions adopted by the Virginia House of Representatives had challenged the right of the national government to assume state debts. Hamilton regarded this resistance as "the first symptom of a spirit which must either be killed or it will kill the Constitution of the United States" and urged that the "collective weight" of the three branches be employed to repudiate the resolutions. Jay replied that it was inadvisable for the Court to join such action. 1 Charles Warren, Supreme Court in United States History 52-53 (1937). Similar efforts by Secretary of State Thomas Jefferson in 1793 to obtain advisory opinions were rebuffed by the Court. The Justices considered it improper to make extrajudicial decisions, noting that the Constitution gives the President the express power to obtain opinions from the heads of the executive departments.
Louis Fisher served as Senior Specialist in Separation of Powers for the Congressional Research Service of the Library of Congress.
#242. To: misterwhite (#234)
The SCOTUS opinion interpreting the Constitution is binding."Because SCOTUS said so in Marbury v Madison (1803). The U.S. Constitution does not give them that power. The court seized it and the people were content to leave it at that.
Unfortunately for you, Marbury v. Madison remains good law two centuries after it was handed down. You are entitled to your own opinion. According to law, your opinion is just bullshit contrary to law, and if argued by an attorney in court today, will draw Rule 11 sanctions.
You would have to argue it yourself or find someone with a law license who wants to be fined or disbarred.
The court is out of control, acting against the will of the majority....
There's your problem, right there. The court is not there to enforce the will of the majority against the constitutional rights of the minority.
#243. To: misterwhite (#235)
That fact that they attempted it showed they thought they could do it. And it did pass the House.
There are two houses to Congress. The fact that some in the House supported something does not express the approval of CONGRESS. You are missing the Senate where it did not get out of committee.
It died in a Senate committee for unknown reasons. My guess is that they were gutless and chickened out.
As you say, unknown reasons.
As it was demonstrably unconstitutional on its face, there is better reason believe that had something to do with its permanent interment in a deep grave, than that the Senate was gutless then, and has apparently been gutless ever since.
Legislation that seeks to limit access to, or enjoyment of, any constitution right of the people has been ruled an infringement of the Constitution. That even applies to alien detainees in Guantanamo.
In enacting the Military Commissions Act of 2006 (MCA), it was not doubted that, on its face, see Boumediene v. Bush, 553 U.S. 723 (2008), the MCA withdrew jurisdiction. I cited Boumediene (as well as Hamdan) last time at #222 on this thread, but it appears it requires force feeding regarding the futility of enacting an unconstitutional law withdrawing jurisdiction. Been there, done that. It does not work.
At 553 U.S. 724:
MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment.
In your Twilight Zone version of the law, that makes it a slam dunk for the government. But then, you ignore the holding of the U.S. Supreme Court.
The Court stated,
As a threshold matter, we must decide whether MCA § 7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.
And the Court held,
Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64.
As the law, MCA § 7, withdrawing jurisdiction was unconstitutional, the Court held it had no effect and that there was no bar to jurisdiction.
https://supreme.justia.com/cases/federal/us/553/723/
SYLLABUS
OCTOBER TERM, 2007
BOUMEDIENE V. BUSHSUPREME COURT OF THE UNITED STATES
BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
certiorari to the united states court of appeals for the district of columbia circuit
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those … he determines planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. In the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights.
While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to … consider … an application for … habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any other action against the United States … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained … since September 11, 2001.”
The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition, “relate to … detention” within that section’s meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of action “relating to any aspect of … detention,” etc., pending habeas actions are in the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8–41.
[...]
(c) The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42.
[...]
(d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64.
[...]
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate interest in protecting sources and intelligence gathering methods—should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections. Pp. 67–68.
[...]
5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
- - - - - - - - - - - - - - - - - - - -
The Court quoted from the Military Commissions Act of 206 at 736-37:
As a threshold matter, we must decide whether MCA § 7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.As amended by the terms of the MCA, 28 U. S. C. § 2241(e) now provides:
(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 [§§ 1005(e)(2) and (e)(3) of the DTA] 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.
Section 7(b) of the MCA provides the effective date for the amendment of § 2241(e). It states:
The amendment made by [MCA § 7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” 120 Stat. 2636.
#244. To: tpaine (#238)
Nope, not binding, as the other branches and the people can ignore such interpretations...Only enforceable if the other branches agree to enforce. Get real...
Only if the other branches agree with the Court.
To demonstrate the idiocy of your bullshit, it presupposes that all three branches of government have agreed with legal abortion, same-sex marriage, and flag burning since the applicable court rulings. You are an idiot.
And that is not to mention the 50 states which you left out. For some reason or other, they all agree to allow abortion and same-sex marriage and flag burning.
Your bullshit supposes that if the other branches of government choose to ignore or violate the law, this means that Judicial branch is devoid of judicial authority. It only demonstrates what an asshole you are.
Drug possession, use, or distribution is unlawful in all 50 states, and is a federal crime in all 50 states, even when the Executive branch chooses to ignore the violations of federal law.
Illegal immigration remains illegal, even when the Executive chooses not to enforce the law.
As an early Christmas present, I will gift you the historical court opinion which is cited as the best challenge ever against Marbury v. Madison. I do this act of charity because I know you could never find it on your own, not that you would make the effort. It will surely give you wet dreams.
- - - - - - - - - -
And if it's decisions are repugnant to The constitution, they are null and void.
In the case of legislation, the judiciary is empowered by the constitution to declare the legislation unconstitutional. In the case of judicial decisions, apparently the person who decides them to be unconstitutional is tpaine.
If the U.S. Supreme Court interprets seme-sex marriage to be constitutionally protected, and you disagree, you can go to your window and scream that the decision is unconstitutional. Do it now. See if anything changes.
Hell, for that matter, Congress can pass a law that says same-sex marriage is illegal, and the President can sign it. And you can go to your window and shout that out. See if anythig changes.
Just as with your absurd assertion that an amendment to the Constitution can be struck down as unconstitutional, you must have a Deemer hidden somewhere to deem a SCOTUS opinion unconstitutional.
#245. To: nolu chan (#240)
It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.
"This construction of the federal judicial power was not inevitable. In addition to the numerous advisory opinions given by the early Justices, English judges had a longstanding practice of issuing advisory opinions upon the monarch’s request. And federal judges and Justices have continued to give opinions informally, including through extrajudicial publications and interviews, dicta in judicial opinions, and ex parte advice to political actors." Harvard Law Review: Volume 124, Number 8 - June 2011
Time for you to run away again, SFB.
#246. To: nolu chan (#239) (Edited)
Thus, the implicit policies embodied in Article III
Punubral emanations? Figures. Your kind always conflates policy and law, SFB.
Congress has an EXPLICIT right to to strip the Court of appellate jursidiction over Constitutional rationalizations for assuming legislative powers, SFB. And I explicitly noted before, the Court may decline to offer any justifications for waiver requests. You're terrified of engaging the actual arguments.
#247. To: nolu chan (#241)
The Court, innocently saying fuck you since 1790.
Time for you to gibber and scamper. Again. "And federal judges and Justices have continued to give opinions informally, including through extrajudicial publications and interviews, dicta in judicial opinions, and ex parte advice to political actors." Harvard Law Review: Volume 124, Number 8 - June 2011
And Congress can say fuck you, based on explicit Constitutional powers, SFB.
#248. To: nolu chan (#242)
Marbury v. Madison remains good law two centuries after it was handed down.
Policy, not law. Or did you forget that you announced that the Court can't make law? And that opinions were decisions? [snigger]
Congress may void judicial review at will, by law, SFB
#249. To: nolu chan (#243)
As it was demonstrably unconstitutional on its face
Question begging. Natch. SFB.
#250. To: misterwhite (#237)
I prefer 'brilliant' but I'll settle for wonderful.
#251. To: nolu chan (#242)
"The court is not there to enforce the will of the majority against the constitutional rights of the minority."
They're not supposed to, no. But how many examples do you want of the U.S. Supreme Court making political, rather than constitutional, decisions?
You've got Roe v Wade for starters. Kelo. Obamacare. All Establishment Clause cases (creches, "under God", prayer in schools, display of the Ten Commandments").
#252. To: nolu chump, yall (#244)
And if it's (The Courts) decisions are repugnant to The constitution, they are null and void.
In the case of legislation, the judiciary is empowered by the constitution to declare the legislation unconstitutional.
Indeed they are, but, --- if the other Fed branches, or the State/local govts disagree, -- they are free to dispute that opinion, --- and to ignore it until resolved.
Scotus decisions/opinions are not law.
If the U.S. Supreme Court interprets seme-sex marriage to be constitutionally protected, and you disagree, you can go to your window and scream that the decision is unconstitutional. Do it now. See if anything changes. Hell, for that matter, Congress can pass a law that says same-sex marriage is illegal, and the President can sign it. And you can go to your window and shout that out. See if anythig changes. Just as with your absurd assertion that an amendment to the Constitution can be struck down as unconstitutional, you must have a Deemer hidden somewhere to deem a SCOTUS opinion unconstitutional.
Isn't it strange that YOU deem it absurd that an amendment can be struck down as unconstitutional, --- yet you shout out that ALL Scotus opinions are constitutional?
The fact is; -- Scotus decisions/opinions are not law.
#253. To: nolu chan (#241)
I never said nor implied that the U.S. Supreme Court was required to give an opinion if asked.
I merely suggested that Trump act to strip their jurisdiction on an issue. Then ask their opinion on upcoming legislation.
#254. To: tpaine (#252)
Indeed they are, but, --- if the other Fed branches, or the State/local govts disagree, -- they are free to dispute that opinion, --- and to ignore it until resolved.
I don't say this often, but good point. Ex parte Merryman.
#255. To: misterwhite (#253)
Then ask their opinion on upcoming legislation.
Yep, and Congress wouldn't need their opinion.
#256. To: Roscoe (#255)
"Yep, and Congress wouldn't need their opinion."
Congress would not have to heed their opinion, no. But imagine if the opinion of the U.S. Supreme Court had been obtained on Obamacare before the vote.
The penalty is really a tax. And states need not set up an exchange to be eligible for subsidies.
Well, maybe it would have passed anyways. But at least Congress' fingerprints would have been on the real law, not some bullshit verbiage.
#257. To: misterwhite (#256)
The penalty is really a tax. And states need not set up an exchange to be eligible for subsidies.
And not unconditionally giving money to state Medicaid programs is "economic dragooning."
#258. To: Roscoe (#257)
"And not unconditionally giving money to state Medicaid programs is "economic dragooning."
Yeah. What you said.
#259. To: misterwhite (#258)
Yeah. What you said.
Hey, Roberts invented the term, not me!
#260. To: Roscoe (#257)
"And not unconditionally giving money to state Medicaid programs"
Wasn't it something like 80% of new Obamacare enrollees consisted of those signing up under the expanded Medicaid eligibility?
#261. To: misterwhite (#260)
Wasn't it something like 80% of new Obamacare enrollees consisted of those signing up under the expanded Medicaid eligibility?
Something like 15 million additional people on Medicaid since Obamacare's first open enrollment.
#262. To: Roscoe (#259)
"Hey, Roberts invented the term, not me!"
Hmmmm. Is there any difference between "economic dragooning" and an unfunded federal mandate?
I mean, other than the constitutionality.
#263. To: Roscoe (#261)
"Something like 15 million additional people on Medicaid since Obamacare's first open enrollment."
But ... but ... that's almost ALL the new enrollees. Couldn't we simply have passed a law expanding Medicaid without revamping our entire health insurance industry?
#264. To: misterwhite (#262)
It was an unmandated mandate. States may withdraw from Medicaid.
#265. To: misterwhite (#263)
Couldn't we simply have passed a law expanding Medicaid without revamping our entire health insurance industry?
Where's the fun in that?
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