Steve Bainbridge on “Evading” Hamdan

In a post titled “Evading Hamdan,” Steve Bainbridge notes that there’s a different way for the Executive to get the military commissions it wants than to hash out legislation establishing them with our elected representatives in Congress. Congress could instead try to strip the federal courts of all jurisdiction to hear cases out of Gitmo, or, presumably, cases leveling challenges of any sort to military commissions.

An interesting thing to think about, I suppose.

But I’m not sure I see the normative case for trying to give the courts the boot and setting up a standoff between Congress and the judiciary over the scope of Congress’s power to strip jurisdiction. Congress can make policy in this area, or it can try to eliminate the courts so as to allow the Executive to make essentially unreviewable policy. Why would it choose the latter over the former?

Steve says he’s not advocating the idea of jurisdiction-stripping, but simply mentioning it. I’m not so sure: when you say, as Steve does, that you doubt Congress has “the guts” to strip the courts of jurisdiction, and when you muse publicly about whether “anybody in Congress will have the chutzpah to run it up the legislative flagpole” — and indeed, when you frame Hamdan as a decision to be “evaded” — some people might think you believe that jurisdiction-stripping would be a good idea. That’s what I’m inferring from Steve’s post, in any event. Perhaps Steve can clear things up by explaining his take on the merits of the idea he’s floating.

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