"If my fellow citizens want to go to hell, I will help them. It’s my job."
By Yglesias and ogged ask about the constitutionality of the Arbitrary Detention and Torture Act of 2006. I wish I had good news, but…
On the Habeas Corpus issue, the Constitution is regrettably clear-cut. Article I, s.9:
The 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.
Congress has the power, therefore, to suspend the Writ. There may be some quibbling about whether 9/11 represents an “Invasion,” but the Courts aren’t going anywhere near that issue, and there are good reasons to defer to Congress’ judgment in this case.
The jurisdiction-stripping issue is more complicated. I’ve discussed this issue at greater length elsewhere (1, 2) but the basic summary is that Matt is correct that there is a strong Constitutional basis for Congress’ actions. Article III, s. 2:
[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Congress is explicitly given the power to restrict the appellate jurisdiction of the Supreme Court, and since Article I leaves it to the discretion of Congress to ordain inferior courts it would be perverse to construe Article III as giving Congress less power to restrict the appellate jurisdiction of other federal courts. Moreover, this power is not just an anachronism; not only did Congress engage in jurisdiction-stripping during the Civil War, it also did so with the Norris-LaGuardia Act of 1932, and the Supreme Court upheld Congress’ restrictions on the injunctive power of the federal courts. The issue, is however, more complicated in that dicta in some cases asserting a robust conception of judicial supremacy–especially City of Boerne–have suggested that Congress’ ability to strip jurisdiction is more limited than Article III suggests. (Despite the awful result it would produce in this case, I think this is a problematic argument for reasons I’ve argued in the linked posts.) It is very unlikely that these particular cases will be used to advance judicial supremacy, however.
At any rate, as Matt says the key point here above all else is that opponents of this scandalous legislation should not use the courts as a crutch. Given the power of statist conservatives on the Supreme Court and the fact that Congress’ constitutional claims are very strong, and the general tendency of courts to defer to the executive when it makes “national security” claims, it is overwhelmingly likely that if it passes the legislation will be upheld. The Democrats have the power to stop it; they need to do it, not hope that the courts will take the issue off their hands.