If you would have asked most lawyers this question before June 29th, 2006 the answer would have been "Congress not only has the Constitutional authority to to remove jurisdiction, and even before cases pending prior to the enactment of the jurisdiction stripping law, but even if the law is not clear about pending cases, then the Surpreme Court has always ruled in favor of lack of jurisdiction"
Justice Scalia, in his dissent in Hamdan v. Rumsfeld, 05-184 (2006, U.S. Supreme Court Slip Opinion) goes at some length (the whole decision is amazingly lengthy) giving the previously understood state of the law and the prior case precedents supporting this understanding.
And of course, Congress passed the Detainee Treatment Act on December 30th, 2005 specifically to strip the court of jurisdiction in this and similar cases and didn't think twice about needing to explicitly insist that the law applied in pending cases because it was universally understood that it would, and that their language was sufficient based on those prior Supreme Court cases.
Nevertheless a majority of the Court, strongly desirous of issuing a decision on the matter, overturned the presumption of interpretation in favor of stripping pending cases so they could publish their opinion. It would have been nice had the majority simply said "Look, we don't think the old rule is reasonable and we're changing it", but instead they decide to stand on legal shaky ground and attempt to distinguish Hamdan from those other cases so that they wont be accussed of activism. It's an arguable point, but right or wrong, they're the majority and they "win".
But this is what you call a "one-free-bite-of-the-apple" decision, because of course, in the future, Congress will always include the line "to all future cases and cases pending at the time of the establishment of this law" when they want to strip jurisdiction - which is undisputedly Constitutionally authorized. So the overturned precedent will be meaningless in the future, but even if they only get this one bite, Hamdan is a big one!
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Re: Even worse,
Date: 2006-09-29 07:36 pm (UTC)Justice Scalia, in his dissent in Hamdan v. Rumsfeld, 05-184 (2006, U.S. Supreme Court Slip Opinion) goes at some length (the whole decision is amazingly lengthy) giving the previously understood state of the law and the prior case precedents supporting this understanding.
And of course, Congress passed the Detainee Treatment Act on December 30th, 2005 specifically to strip the court of jurisdiction in this and similar cases and didn't think twice about needing to explicitly insist that the law applied in pending cases because it was universally understood that it would, and that their language was sufficient based on those prior Supreme Court cases.
Nevertheless a majority of the Court, strongly desirous of issuing a decision on the matter, overturned the presumption of interpretation in favor of stripping pending cases so they could publish their opinion. It would have been nice had the majority simply said "Look, we don't think the old rule is reasonable and we're changing it", but instead they decide to stand on legal shaky ground and attempt to distinguish Hamdan from those other cases so that they wont be accussed of activism. It's an arguable point, but right or wrong, they're the majority and they "win".
But this is what you call a "one-free-bite-of-the-apple" decision, because of course, in the future, Congress will always include the line "to all future cases and cases pending at the time of the establishment of this law" when they want to strip jurisdiction - which is undisputedly Constitutionally authorized. So the overturned precedent will be meaningless in the future, but even if they only get this one bite, Hamdan is a big one!