Did the Supreme Court Violate or Vindicate the
Constitution in the Latest Guantanamo Bay Decision? The Difference Between
Separation of Powers and Checks and Balances |
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Monday, Jun. 16, 2008 |
Not surprisingly, last week’s landmark 5-4 Supreme Court ruling in Boumediene v. Bush has
already been decried by conservatives and hailed by liberals. Curiously,
however, critics and admirers of the decision both appear to claim support from
the same venerable principle: the balance of powers under the U.S.
Constitution. Justice Anthony M. Kennedy’s opinion, conservatives say, violated
the Constitution by failing to provide adequate deference to the political
branches—Congress and the President—in wartime. Not so, say liberals. The Court
vindicated the Constitution by acting as a vital check on one of the worst
abuses government can commit: detention without trial.
How can the Constitution’s structure be invoked on both sides of this
question? The answer is that the Constitution contains two distinct structural
mechanisms for allocating power among the branches of the national government:
(1) separation of powers; and (2) checks and balances. Although often conflated
in high school civics classes, these concepts are distinct and sometimes
conflict. Understanding the difference between them will help explain how the
Court could divide so sharply over such fundamental matters.
The Boumediene case itself presented two questions. First, does the
Constitution guarantee a right of habeas corpus to foreign detainees held as
enemy combatants on territory over which the United States exercises plenary
control but technically lacks sovereignty? A majority of the Court said it
does. Having found that neither the President nor Congress could simply eliminate
the right of habeas corpus, the Court next asked whether the combined military
and civilian process in place for determining whether particular detainees are
in fact enemy combatants is an adequate substitute for habeas corpus. Finding
that it is not, the Court ordered that the detainees be permitted to file
habeas corpus petitions in federal district court. The Role of Ideology in the Court’s Division What explains the Court’s sharp divisions? Here, as in all highly-charged
Supreme Court cases, the respective ideologies of the individual Justices must
be a big part of the answer. Every one of the four dissenters is, overall, more
conservative than every one of the five Justices in the majority. Moreover, Justice Scalia’s dissent—joined in full by Chief Justice Roberts
and Justices Thomas and Alito—is poisonously provocative. In just the opening
paragraphs, Justice Scalia: (1) says the majority opinion “will almost
certainly cause more Americans to be killed”; (2) adopts the Bush
Administration’s highly misleading characterization of the Iraq war as part of
the same struggle against radical Islamists as the military response to 9/11;
and (3) cites an Office of Legal Counsel memorandum co-authored by John Yoo as
authority for the proposition that the Bush Administration was entitled to
assume that aliens held at Guantanamo Bay would be beyond the reach of U.S.
courts. Although more respectful in tone, a second dissent, authored by Chief
Justice Roberts and joined by the other dissenters, also finds little fault
with the Bush Administration’s detention policy. The Chief Justice begins by
hailing the process afforded Guantanamo Bay detainees as “the most generous set
of procedural protections ever afforded aliens detained by this country as
enemy combatants,” and later refers to Guantanamo Bay as a “jurisdictionally quirky
outpost” In marked contrast, the majority opinion openly disdains the Bush
Administration’s transparent effort to evade review by selecting Guantanamo Bay
as a prison site precisely for its jurisdictional quirks. Justice Kennedy
repeatedly dismisses such “formalism,” arguing instead that the reach of the
writ depends on functional considerations. A Methodological Disagreement? The majority’s rejection of formalism suggests a methodological division on
the Court that closely parallels ideological ones. Broadly speaking, formalism
is the notion that formal criteria decide legal questions. In Boumediene,
Justice Kennedy meant to reject the formal criterion of sovereignty—for
Guantanamo, sovereignty is technically vested in Cuba—as the basis for
determining whether the writ extends to a particular territory. In its place,
he favored asking practical questions: Will a habeas court’s orders be obeyed?
Will they be disruptive of military operations in an active theater of war? And
so forth. In other contexts, however, formalism can refer to the propositional logic
of the law itself. Formalists believe that formal legal materials—especially
enacted text like that of statutes or the Constitution—resolve legal questions,
whereas functionalists often find that such materials are too imprecise to do
the hard work in hard cases. Although all Justices sometimes write formalist
opinions, it is fair to say that the four Boumediene dissenters are
substantially more committed to formalism than the five Justices in the
majority. Justice Scalia once even wrote (in his book, A Matter of
Interpretation) “Long live formalism.” It is thus not especially surprising
that the Court’s formalists would recoil from a strongly anti-formalist opinion. Nor is it especially surprising that the Court would divide over the proper
role of history in matters of constitutional interpretation. Here too, all of
the Justices believe that the historical origins of a constitutional provision
are relevant to its current construction. The four dissenters, however, are the
most strongly originalist members of the Court. In Boumediene, they
thought it a fatal weakness in the petitioners’ argument that prior to the
adoption of the Constitution in 1789, no English court had ever issued a writ
of habeas corpus on behalf of a prisoner held outside the sovereign territory
of the Crown. For Justice Kennedy and the other majority Justices, the history was at most
a fuzzy starting point. For one thing, the majority pointed out that the
relevant English history was silent, not negative: No reported English case
granted or rejected a habeas petition from an alien outside the
realm. For another, even if the early English history were indeed to be read as
rejecting a habeas right for aliens beyond the realm, that may well have been
because of practical concerns applicable in the Eighteenth Century, but not in
the Twenty-First. The majority found no precise analogue to Guantanamo Bay in
the early cases, and was left to reason from the purpose of the Suspension
Clause itself: protecting personal liberty against arbitrary detention. Separation of Powers Versus Checks and Balances The Justices’ respective ideological and methodological dispositions may
well suffice to explain their disagreement in Boumediene. However,
another fault line can be found as well: between two venerable but often
misunderstood principles—separation of powers on the one hand, and checks and
balances on the other. The principle of separation of powers says that each branch of government
should be confined to its own role: the legislature makes the laws; the
executive executes the laws; and the judiciary interprets the laws. Although
the Constitution does not contain an express “separation of powers clause,” the
principle can fairly be inferred from the Constitution’s overall structure and
language: Separate articles vest the legislative, executive, and judicial
powers in distinct branches. Furthermore, particular clauses prevent
legislative trials (the Bill of Attainder Clause) and parliamentary rule (the
Incompatibility Clause). The principle of checks and balances says that the Constitution prevents
overreaching by any one branch through the checking function of the others.
Here too, there is no express “checks and balances clause,” but the principle
can be inferred from what the Constitution does express. The President can veto
legislation; Congress can, in turn, override the President’s veto; the Senate
must confirm principal officers nominated by the President; and the courts
ensure that the other branches act within the Constitution, exercising a power
readily inferred from the Supremacy Clause and Article III. A moment’s reflection will reveal the tension between separation of powers
and checks and balances. In order to check legislative excesses through the
veto power, the President must in fact take part in making law; in order to
constrain the President, Congress can hold oversight hearings and withhold
funding when it disapproves of his execution of the law; and in order to keep
the judiciary within bounds, the President and Senate may opt to only confirm
judges whose approach broadly fits the elected officials’ conception of the
role. In each of these and other instances of checks and balances, the very
idea of checking entails some interference by one branch with the actions of
another. The Constitution contains no master rule for deciding when powers must be
separated and when they can be shared so as to facilitate checking. That
presents no difficulties where the Constitution’s language is pellucid. For
example, no one doubts that the President can veto acts of Congress. But such
cases do not give rise to litigation, much less Supreme Court litigation. How
the Court resolves hard structural cases will thus typically depend on which
principle—separation of powers, or checks and balances—the Justices consider
stronger in any given context. In the Boumediene case, the dissenters thought that the separation
principle ought to prevail because of the deference courts typically afford the
political branches in wartime. Congress has the power to declare and fund war,
while the President prosecutes war as Commander in Chief. The courts, in this
view, have no war powers as such. The Boumediene majority was unwilling to concede even on
separationist turf. The Suspension Clause itself authorizes Congress to suspend
habeas corpus if the public safety so requires because of rebellion or
invasion, but, Justice Kennedy noted, Congress had not purported to suspend the
writ, and even if 9/11 could be characterized as an “invasion,” it hardly
follows that public safety required suspending the writ. After all, the
civilian courts have remained open, including for the trial of terrorism
suspects. Furthermore, the Boumediene majority was unwilling to concede that
the case ought to be handled under a separation-of-powers, rather than a
checks-and-balances, paradigm. Separation of powers is partly about constraining government. Accumulation
of all powers into one branch, Montesquieu and the Framers warned, is the very
definition of tyranny. Accordingly, separating powers checks tyranny. However, it does so less robustly than the checks and balances principle.
The latter says that even within their respective spheres of competence, each
branch can act capriciously. In the competition between the two principles,
separation of powers is about leaving each branch to do what it is most
competent doing, while checks and balances is about blocking abuses: ambition
countering ambition, in James Madison’s phrase. Seen in this light, Boumediene comes down to a question of trust. The
dissenters believed that Congress and the President must be trusted to fashion
and carry out war-related policies. The majority, in contrast, thought that
Congress and especially this particular President had shown themselves unworthy
of that trust.