Well, that is the argument put forward by Steven M. Warshawsky at American Thinker. He correctly argues that the majority in Hamdan ran roughshod over the clear statutory language of the Detainee Treatment Act (DTA), which was an exercise of Congress power to set the jurisdiction of the Supreme Court and lower courts pursuant to Article III of the Constitution.

Under the DTA, the only court that is authorized to hear appeals brought by captured terrorists is the United States Court of Appeals for the District of Columbia (commonly known as the “DC Circuit”), which had ruled in favor of the federal government. Nevertheless, the five liberal justices of the Supreme Court (Stevens, Ginsberg, Souter, Breyer, Kennedy) concocted an explanation for why the DTA does not mean what it says, and then invalidated the military tribunals established by President Bush and the Department of Defense as part of the fight against international Islamic terrorism.

And therein lies the problem. In order to reach the decision on the merits of the case in Hamdan, the majority had to engage in what may be the most egregious case of legislating from the bench which has ever occurred in American history. In doing so, it far exceeded the reaching for unbridled power of which it accused President Bush. This raises questions as to the legitimacy of the decision, and the propriety of following it. Indeed, it once more raises tthe spectre of an imperial judiciary, an unaccountable body steping outside of its proper bounds to overrule the political branches of government in their proper constitutional spheres.

And yet, where lies the solution to this problem. The partisan divide in Washington is such that the obvious constitutional approach, impeachment of the offending quintet, is out of the question. Democrats are so eager to strike at the president for partisan advantage that they will support the warping of the proper constitutional order if they believe it will aid them in taking back Congress and the presidency. In addition, the Democrats would be loath to give President bush even one more opportunity to reshape the Supreme Court with a conservative nominee. So much for that option.

The alternative reaches back to the days of Andrew Jackson. Jackson is quoted as saying of the Chief Justice, "John Marshall has made his decision, now let him enforce it." So, too, muight the president and Congress choose to ignore a decision that is illegitmate at its root -- not because they dislike the decision, but because the Court's very act of deciding was contrary to the law and the Constitution, and therefore illegitimate and void.

The truth is that the Supreme Court’s actual authority is only as deep as the willingness of the other branches of government and the American people to “obey” its commands. At some point, we have to say, enough is enough. I think we have reached that point with Hamdan. In my opinion, the President and Congress should treat the Court’s decision respectfully but as advisory only, and abide only by those aspects of the decision that they agree are in the national interest.

To take such a step would be a momentous decision in American history. As Warshawsky points out, the Supreme Court has th closest thing to absolute power in American government because the other branches of government, and the American people as a whole, have chosen to accept its decisions as final and beyond reproach even when they appear to exceed the bounds of constitutionality. Perhaps this decision constitutes the tipping point away from that consensus of infalliblity.

The President, of course, may not act alone in this regard. Such a course of action would require the support and consent of the bulk of Congress. Perhaps teh best approach would be for Congress to grant the President the statutory powers neccessary to follow the procedures in place pre-Hamdan, and to definitively strip all but the DC Circuit of jurisdiction in such cases. Indeed, the statute must EXPLICITLY overrule Hamdan in no uncertain terms.

Such a move would be daring, given that the judiciary has never been rebuked in such a manner. And in light of the reflexive deferrence that the American people give the Supreme Court, the action would have to be done in a manner which was clear to the American people as respectful to the legitimate authority of the Court but also necessary to preserving the powers of the other co-equal branches.

For if such a course of action is not taken, the reality will be that the checks and balances put in place by the founders will have been upset byt the branch seen as least likely to become the source of tyranny which destroys our Constitutional system of government.

Posted by: Greg at 11:01 AM | No Comments | Add Comment
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