(Download) "Boumediene's Quiet Theory: Access to Courts and the Separation of Powers." by Notre Dame Law Review " eBook PDF Kindle ePub Free
eBook details
- Title: Boumediene's Quiet Theory: Access to Courts and the Separation of Powers.
- Author : Notre Dame Law Review
- Release Date : January 01, 2009
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 355 KB
Description
Ronald Dworkin may not have been exaggerating when he referred to the Supreme Court's June 2008 decision in Boumediene v. Bush (1) as "one of the most important Supreme Court decisions in recent years." (2) The Court there held that the Constitution's Suspension Clause: (3) "has full effect at Guantanamo Bay," (4) and that the Military Commissions Act (MCA) of 2006 (5)--which precludes federal jurisdiction over habeas corpus petitions brought by noncitizens detained as "enemy combatants" (6)--fails to provide an adequate alternative to the writ of habeas corpus, (7) As such, the Boumediene majority struck down section 7 of the MCA, (8) only the second instance in which the Supreme Court has invalidated a statute because it unconstitutionally removes federal jurisdiction, (9) and the first time it has ever concluded that an act of Congress violates the Suspension Clause. (10) Courts and commentators alike have already felled many forests grappling with the hard questions Boumediene leaves in its wake. Just for starters, do other constitutional provisions "ha[ve] full effect" at Guantanamo? (11) Does the Court's analysis of the availability of habeas corpus to noncitizens at Guantanamo open the door--and the potential floodgates--to habeas petitions from noncitizens held elsewhere overseas, particularly in Afghanistan and Iraq? (12) Does the right articulated by the Boumediene majority protect a remedy for claims other than "core" challenges to executive detention? (13) Does it even include a right to be released (into the United States) when there is nowhere else to send those whom the government lacks the legal authority to detain? (14) Indeed, these questions are only a sampling; it will no doubt be years before the direct implications of Boumediene are fully fleshed out. (15)
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