Assisted Suicide Case:
The Supreme Court handed down Gonzales v. Oregon today, ruling in favor of the state 6-3. Kennedy wrote for the majority; Scalia, Thomas, and Roberts dissented. I've given the opinions a quick skim, but I'm in class and meetings most of today and probably won't be able to offer more thoughts until tonight.
Could it be that he actually agreed with the majority decision (given that, relatively speaking, he doesn't put too much importance on precedence) but chose to dissent simply to make a point and call them out?
He says near the end of his dissent that the case is a matter of interpreting the statutes, and not of deciding on whether this is a proper exercise of federal power. Perhaps I have misunderstood this part, but isn't the realm of the central government's power always under consideration?
So, is he accepting that, should another, say, 25 (30?) states eventually concur, and, perhaps, the AMA expands their definition, that objectively, Things Have Changed? Put another way, he seems to be arguing that the popular will of Oregon is trumped because many other states haven't yet considered the question, and by the way, this guild agrees with me. That seems like he's setting the stage to have his reasoning used against his judgement at a later date.
"While the scope of the CSA and the Attorney General’s power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court’s Commerce Clause and separation-of-powers jurisprudence."
Clearly, he's using his dissent to point out the inconsistency of the so-called left wing of the Court. Unfortunately, his reasoning is lost on those who choose to dismiss him out-of-hand (read: everyone on the political left.)
(emphasis mine)
Randy, be proud.
David Matthews: when you dismiss "everyone on the political left", you leave even libertarians like me little choice but to discount the rest of what you say as at least inspired by partisanship. Just FYI.
That's a dual edged sword he is wielding. Does that mean that one day, perhaps we can call it Consitution Returning from Exile Day, when such "expansive" grants of authority have been rolled back, allowing the free market to define what's accepted or not, Justice Scalia would uphold this decision?
Where's the inconsistency? He's addressing a constitutional question that the majority could simply ignore, given its reliance on statutory interpretation.
I think you mean Justice Thomas -- and yes, judging by his opinion and ignoring your snark about free markets, Thomas would probably have sided with the majority here if Raich had been decided otherwise.
What ever happed to the Justice Scalia who wrote, in all caps, something like, "THE LAW MEANS WHAT IT SAYS" ? Of course, that was when he didn't want the majority to read-into the law what he did not think should be read into the law.
It seems Scalia was caught with his pants down on this case. Thank god it was only his intellectual pants.
Here the canon of construe statutes narrowly to respect state sovereignty in an area of "traditional state concern" beat the canon of defer to the agency who interprets and implements the statute.
"I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice."
(which comes of course, from Sen. Harry Reid.)
1. Stevens, Souter, Ginsburg, Breyer: After admirably (though, in my opinion, mistakenly) holding to their Commerce Clause principles on Gonzales v. Raich in the face of quite different ideological facts, they shift course and side with Oregon in this case.
2. Thomas: After admirably holding to his federalist principles in Gonzales v. Raich in the face of different ideological facts, he abruptly shifts course with his petulant charge of majority hypocrisy and sudden interest in stare decisis in the Oregon case.
3. Kennedy: After reneging on federalism when he joined the majority in Gonzales v. Raich, he returns to the federalist fold on this one.
4. Scalia: Showing consistency on the Raich and Oregon cases, he turns his back on federalism, perhaps coincidentally in cases with quite different ideological facts from Lopez, Morrison, SWANCC, etc.
Discounting Roberts, there is only ONE justice who has remained true to HER federalist principles in both past two decisions AND in these two decisions. You know, Sandra Day O'Connor, that supposedly inconsistent and flighty decision-maker so scorned by academics for her inconsistency and evolution as a justice?
We will miss her on the court. More than we now know.
That being said, I was expecting this to be 8-1 (with only Scalia dissenting). That Thomas dissented in order to take a cheap potshot at Raich doesn't particularly bother me, though as mentioned by others, I don't think its fair to say that potshot requires a dissent or has anything useful to say about the majority's outcome in this case under the reasons given by the majority.
That Roberts dissented bothers me. It implies a very broad reading of Article II power, including the interpretative rights of Article II officers, far beyond those provided in Skidmore and Chevron. Here, the statutory language of the CSA is silent on what the definition of "medicine" is, but the clear indication of the statute as a whole is to leave that determination up to the states, with certain narrow exceptions not applicable here. That Scalia decided to interpret it "de novo" is somewhat odd and difficult to cubbyhole (as others mentioned), but taking that power away from the states, and to some degree relenting to the AG's interpretation, is a step towards Article II power that goes far beyond what I think the founders would intend. Alito is clearly in that mold, and such after this we soon will be 5-4 on an almost infinite deferral to the voice of the executive on a whole range of constitutional and statutory issues. Even during the Rehnquist court, we were never really much more than 7-2 on that issue.
So why not 'undertaker-assisted suicide', which would at least allow for a certain economy of effort?
NJ, I suggest that whether or not this instance was within the regulatory reach of the Federal government was not the question in this case, and that if it were the result would be 9-0 (given Thomas's "sucks to be you" styled dissent here, which I doubt he particularly stands by).
As a former Oregonian who voted for this initiative twice, I'd also add that I hope this lays this issue to rest for the remainder of the Bush administration at least.
That is just simply untrue. They held in Gonzales that Congress has the power to criminalize the use of marijuana, even if a state passes a law saying that it is legal for medical purposes. Here, they hold (essentially) that the Congress has the power to criminalize assisted suicide, but that it did not do so and thus Ashcroft's actions in overruling on his own a duly passed law of the State of Oregon were void and should not be given effect.
Please explain why all four of them voted to reverse in Washington v. Gluckberg (if you even know what that case is) if you think they are such hypocrites. Note further that both Scalia and Thomas joined in the lead opinion in Glucksberg which basically said that these things should be left to the states, where there is a democratic debate going on. Well, once that debate went the way they disliked, all of a sudden they find a law that was on the books at the time of Glucksberg to find that, in fact, they were just kidding -- no democratic processes in the States, this has already been decided. Hypocrites.
Perhaps the best hypocrisy from this case (and I borrow from Publius at Legal Fiction) is this line from Scalia: "Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible." Really now? I don't disagree with the statement, but please substitute "violence against women" with "assisted suicide" and explain why the difference. . . . . Still waiting for that explanation. It's clear that Scalia has revealed himself in the federalism decisions to simply be making normative judgments about what laws he likes, and what laws he dislikes. None of the other members of the Court have been so revealed like Scalia (see, e.g., OConnor, Rehnquist and Thomas in Raich). We will have to wait and see with Roberts.
I don't think there's anything terribly unprincipled about him dissenting on the ground that Raich may be wrong, but it's the law, and if the Commerce Clause power extends to this activity, then the statute doesn't preclude the particular regulation that Ashcroft enacted.
But he seems mighty quick to accept that Reich precedent when we are talking about a practice that offends his religious beliefs (assisted suicide), isn't he? Remember, Thomas has repeatedly REFUSED to accept the Commerce Clause decisions of the 1930's and 1940's, which are clearly settled law, even after they have been reaffirmed by the Court. He has also repeatedly refused to accept the Court's takings clause / public use decisions, which have also been repeatedly reaffirmed. Suddenly, Thomas is a new convert to stare decisis. Isn't that suspicious?
As for Scalia, it seems to me that this is a classic example of how you can never attain the "neutral principles" that Bork, Wechsler, and Scalia espouse. Behind his "neutral principle" is an assumption that of course assisted suicide isn't a legitimate medical purpose. It's killing people! He doesn't even seem to recognize that this is exactly the contested principle in this case, and that there's no way to be "neutral" about it.
Justin, please provide us with any Supreme Court case in which the majority relied on the "traditional state function" to shoot down an administrative agency's reasonable interpretation of an ambiguous statutory provision. I think you'll find this is the first one. Gregory v. Ashcroft could be somewhat on point, but the EEOC doesn't have intepretive power.
This is another example of the make-it-up-as-we-go-along way of judging. I'd be surprised if this new rule of reading statutes catches on.
Scalia's dissents get old, and it appears that he just wants to mock the other side always. Recognizing that the majority's opinion, when viewed as a matter of statutory interpretation, was eminently reasonable, he has to basically lie to his audience and say it was a constitutional holding and thus mock it as such. Why not just write a respectful dissent for a change that read something to the effect of, "Hey, I disagree with the majority, here's why, but I am not saying they are idiots for coming out the other way." G-d help us all if the Supreme Court is ever televised in his tenure, his ego will go through the roof as he (like Kozinski when the recall hearing was televised) will filibuster arguments to prove to the audience how he is the smartest Justice of all times.
Didn't think so. Thanks for coming out, people. We have some great consolation prizes for you.
Take this as a rare occurence to see me defending "Justice" Clarence Thomas who I have zero intellectual respect for after reading his silly, but dangerous, dissent in Hamdi v. Rumsfeld. Perhaps the worst opinion I have read by ANY judge ever (and yes that includes Plessy and Dred Scott and Korematsu).
We will miss her on the court. More than we now know.
Keep in mind that when you flip a coin twice, there is a 50% chance that the result will be the same both times.
Please. That "hair splitting" that you cannot see was the issue presented in the case. Thanks for trying however. If you want me to take your assertions seriously, please answer my questions re Glucksberg. Until then . . .
Justin, please provide us with any Supreme Court case in which the majority relied on the "traditional state function" to shoot down an administrative agency's reasonable interpretation of an ambiguous statutory provision. I think you'll find this is the first one. Gregory v. Ashcroft could be somewhat on point, but the EEOC doesn't have intepretive power.
Um, I don't think that's here or there. What is relevant here is that the AG is not an agency under the APA or likewise statutory scheme. Congress has not delegated the AP any right to interpret the CSA, as reasonable or not as such, and thus what the AG finds to be reasonable is irrelevant. If this was the interpretation of the FDA rather than the AG, then I think it's a somewhat more interesting question.
Um, the issue in this case was NOT whether Congress has the power at issue; it was whether Congress exercised that power. Please, that is a very, very significant difference.
Congress, undisputably has the power to criminalize interstate traffic in oranges -- it has not however exercised this power. So if someone was charged with the "crime" of moving oranges into Nevada from California, and the case reached the Supreme Court, the Court would throw out the indictment. See the difference. That ought to explain it to people who can't see how this squares with Raich. Congres CAN criminalize assisted suicide tomorrow if it wants. Go lobby Congress if you think this is a pressing national need.
This would be the same Scalia who complained that gender discrimination in some states couldn't be relied upon by the feds to uphold nation-wide legislation because there was no "guilt by association" that allowed the legislation to be sustained in states where such discrimination was not so proven. Once again, Scalia shows himself to be more concerned with his policy preferences than with consistency.
The nonstop cries of "hypocrisy" aimed at the "liberal four" following the Raich case, is an attempt to confuse the issue and make Scalia's specious grounds for dissent seem consistent. Scalia has to rephrase the majority's reasoning into something it is not in order to pretend he's still a text-fearing jurist, and not trying to craft the law into the meaning he desires.
Here we have a non-specific statute and an attempt to use that law as an executive power-grab to invalidate state laws that do not run afoul of the constitution or and federal statute. This is not a federal law that clearly says "no marijuana."
That anyone can look at this case and at Raich and call it "hair-splitting" suggests an incomplete legal education -- that hair is as broad as a board.
Was that erudite enough for you?
If Justice Thomas's sole reason for dissenting is that, in his view, the proper analysis is that the federal government lacks constitutional power to interfere with Oregon's pro-assisted-suicide law, why is his opinion a dissent rather than a concurrence-in-the-judgment?
Is the argument that he's following Raich even though he disagrees with it? It seems to me as though he has only two choices: (1) call for Raich to be overruled, and dissent on constitutional grounds; (2) follow (or ignore/distinguish) Raich, and reach the statutory and regulatory interpretation/deference questions.
How can he have it both ways? (Scalia and the majority both did (2); they just disagreed about those statutory and regulatory issues.)
Justice Thomas actually distinguished Raich from Gonzales as follows (p. 4, n.2 of dissent):
Further, tell me, wise one, why the difference between Congress not enacting a law, and Congress not having the power to enact a law is simply "hair-splitting"? Sounds like you are a graduate of the George W. Bush School of Law -- you know, the kind that doesn't like judgifying.
Your question includes a serious error that once corrected will in fact answer the question. The "conservative/libertarian Right" is not a uniform movement by any means. Broadly speaking, there are the "conservatives" and the "libertarians." To the conservatives like National Review, Pat Robertson, George W. Bush, and others who, for one reason or another, choose to embrace the agenda of the extreme right-wing evangelical, political (mainly Southern) Protestants, Scalia is a hero. These people care about results, and Scalia (at least in his later years) gets them: you want Bush to be Prez? Got it. No dope for medical purposes? Got it. Prayer in schools? Got it. No evil lawsuits against rapists? You got it. Internal consistency? Not so much.
To the libertarians (and I am speaking in generalities), Scalia has sort of fallen off after Raich. See Randy Barnett's criticisms of him for example. Oddly enough, Thomas seems to be more admired by the libertarians, which frankly shocks me given his "opinion" in Hamdi v. Rumsfeld, which would seem to me (although I am no libertarian) be much more offensive to libertarian values than Scalia's vote in Raich.
Why are so disparaging and condescending in your comments? You remind me of Nietzche. Are you also a paranoid invalid?
When he says that that's water over the dam, he's trying to say that that argument doesn't survive Raich. The Court declined to limit Congress's power.
Nevertheless, a question of statutory interpretation remains on the table here -- i.e., assuming as we now must that Congress could ban doctor-assisted suicide in Oregon, is that what Congress did?
Scalia writes his dissent as if the answer is, patently, "yes."
Further to what someone (Greedy Clerk?) was saying above, another way to think about what the Court was doing here is that they were using statutory interpretation to avoid the difficult constitutional problems (although maybe not so difficult after Raich). I.e., if Congress wants to interfere with the way Oregon regulates medicine, it's going to have to do so very clearly, instead of using ambiguous language and hiding behind the decision of the Attorney General.
Although I don't think anyone in their right mind thought that Congress was intending to permit the Attorney General to do what he did.
The chance that a bunch of selfish guys from the woods of New Hampshire or from the law library of the University Chicago are ever going to deal with a "war on terror suspect" in a meaningful, non-intellectual masturbation way, is nil.
Live high or die.
As a white guy with too much time on my hands with an ideology that is fully -- but not over -- baked, I take offense.
First, I care little about pot smokers. I'm not one of them. But I cannot understand how my country got to this place. Let's say I'm in Indiana and I own a farm where hemp/marijuana grows alongside the the other weeds in my unplowed field. I can burn my field if I want to clear it. But I better not cut down one of the weeds, set it afire, and inhale deeply. That would be criminal.
Second, some of us (libertarians with a small "L") are really a subvariety of a very old type of ideologue: the social contract theorist. We're not terribly troubled by Hamdi's detention because Hamdi is only a "citizen" by virtue of an accident of birth and a misinterpretation of law. Neither he nor his forebears were participants in the great social compact that created the Bill of Rights. Nor was he invited in by the rest of us to live among us permanently. We are offended because by accident of birth he purports to get all the privileges of the social compact while assuming none of the obligations. He is not a citizen nor an invited guest. And if he wishes to do the rest of us harm, then I don't mind treating him as we would treat any other interloper.
Not in the least. If you examine the pattern of Thomas's rulings, one thing is clear: he'll raise these issues in dicta -- as he did here -- but he won't overrule precedent when the parties haven't challenged it as part of their argument.
I have never read Nietzche, but I think that's a compliment in some sense. As to why I am condescending, I only condescend to those who invite it. The arguments to which I responded struck me as an implied invitation to condescend.
Are you also a paranoid invalid?
Yes I am.
Translation: He is an Arab.
Nor was he invited in by the rest of us to live among us permanently.
Hmm, but you were invited by the rest of "us" to live among us permanently? or your birth in this country was no accident? If the latter, I assume that you did something in a past life to "earn" your birth here. What else gives you a superior right to contest a charge (and that's all we are talking about, the right to contest a charge) than any other American citizen?
We are offended because by accident of birth he purports to get all the privileges of the social compact while assuming none of the obligations.
Even better: you assume something that Hamdi was NEVER given a chance to contest -- that he somehow broke the social compact. Under your theory, the Prez can take you -- yes you -- and throw them in a brig and say "he broke the social compact"; thus, he has no right to jack.
Otherwise, I found your comments quite interesting.
I'd suggest the Greedy One take a look at Judge Posner's recent comments regarding the need to rethink birthright citizenship. After that, take a look at Judge Cassell's opinion (D.Utah) regarding the meaning of "the people" in 4th Amendment jurisprudence.
Hamdi has the slightest possible connection to the United States and its people.
The Greedy Clerk finds it hard to draw lines, so he (she?) simply stops trying.
Thomas is not dissenting just to call out the hypocrisy of the majority. (He could do so in a concurrence.) Moreover, the hypocrisy he is calling out is not really based on a flip-flop of Commerce Clause jurisprudence. As he notes, the Commerce Clause was not at issue in this case (at least on appeal to the Supreme Court).
He is calling the majority out for reading the statutory language very expansively in Raich but narrowly in Gonzalez -- for giving wide deference to the executive branch's interpretation in Raich but not in Gonzalez.
It seems to me that Thomas would uphold a challenge to the CSA (as applied in this case) made on Commerce Clause grounds. But given that no such challenge is being made, he is inclinced to give wide deference to the executive branch's interpretation of the statutory language (as the majority did in Raich, but refuse to do here). He is not, therefore, being inconsistent by dissenting in both Raich and Gonzalez.
Otherwise, a reading of your post does in fact appear to be that because Hamdi is an Arab, he deserved no rights -- after all, "he and his forebears" did not consent to the "social compact", and you know that because, well, your evidence seems to be that he is an Arab. Very incisive.
Correct. There is nothing inconsistent about Thomas's opinions in Raich and Gonzalez.
Having suffered through the Alito warmup and hearing, we should all be familiar with the value of precedent, Speterian "super precedent," old-and-faded precedent, and freshly-minted contemporary precedent. And we should all understand that the Supreme Court will generally follow precedent no matter how old unless that precedent is nowadays embarrasing (Plessy, or the 17-year old execution of juveniles precedent), and that it will always follow precedent from the previous term.
So in Gonzalez, Thomas is simply saying: the value of consistency in the application of the laws trumps my own personal belief in federalism. Having decided Raich one way, there is no basis for the Supreme Court to do an about-face in Gonzalez.
And that is the definition of a principled decision.
Scalia writes his dissent as if the answer is, patently, "yes."
A conclusion which is patently absurd and which cannot be reached on any principle of statutory interpretation which Scalia in other cases claims to adhere to. The statute only says that prescriptions must be for a legitimate medical purpose. The statute had not previously been applied to try to block physician assisted suicide, something squarely within state jurisdiction. Ashcroft as a senator tried to get an amendment passed to explicitly block the practice, but failed. When he became AG, he simply unilaterally declared that physician assisted suicide wasn't a legitimate medical practice regardless of whether it was under state law or not. Nothing in the statute gave the AG the power to issue regulations defining the meaning of that term. On this basis, Scalia thinks it's obvious that physician assisted suicide isn't a legitimate medical practice, even where state law explictly provides for it, and provides strict procedures for carrying it out, and where that law has been approved by the voters in a referendum, and even where nothing in the statute gives the AG authority to make that determination, and even where the AG's declaration was made purely unilaterally, without so much as a phone call to anyone in Oregon?
Yet another example of Scalia having no hesitation in tossing aside principle when it gets in the way of his policy preferences. I can see why that makes himi a hero to the religious right, but it certainly doesn't make him a hero to libertarians.
Maybe he/she should take a look at the facts:
-- Hamdi's parents were both natives and citizens of Saudi Arabia
-- they came to Louisiana as nonimmigrant visitors; Hamdi's father was working on a short-term contract at an oil production facility in Louisiana
-- Hamdi was born during this visit
-- Hamdi returned to Saudi Arabia (with his parents) as a toddler.
-- He did not return to the United States, or make any voluntary attempt to exercise his rights and obligations as a U.S. citizen, until he was captured with a Soviet-issued weapon on the battlefields of Afghanistan.
-- After leaving the USA as a toddler, Hamdi did not return until the U.S. military brought him back in 2002.
-- when Hamdi was released and returned to Saudi Arabia (having relinquished his U.S. "citizenship") he refused to provide any explanation of what he was doing in Afghanistan. Clarification: he would not even answer a CNN reporter's simple question about why he was in Afghanistan. Simply google "Yasser Hamdi" and you will discover these facts.
I don't care if Hamdi is an Arab. Shoe bomber Richard Reid is not an Arab. [Greedy Clerk's knee-jerk response: "Oops, I always mix that up ... I meant to say, "Muslim."]
He was captured on the battlefield. If he had been kept in a camp in U.S.-controlled Afghanistan, would he have a right to file a habeas petition? Does the Greedy Fetishist think that hostilities had ended in Afghanistan at the time Thomas wrote his opinion in Hamdi?
Or is the Greedy Clerk just another annoying reflexive Bush hater of the don't-bother-me-with-the-evidence variety?
(Disclosure: I did not vote for Bush, and I have been very vocal in other threads on this blog in criticizing Bush policies.)
This logic is equally applicable to many who did things much worse that what Hamdi was ever accused of doing. For a few examples, I think Jeffrey Dahmer or Timothy McVeigh certain "purport[ed] to get all the privileges of the social compact while assuming none of the obligations." Yet, they are of course entitled to be heard on charges before we punish them quite severely (and deservedly I might add). So, the key difference between McVeigh and Dahmer on the one hand and Hamdi on the other has nothing to do with violating the social compact; after all, every criminal violates the social compact and that's why they get thrown in jail, put to death or otherwise punished.
Rather the key statement in your phrase is "by accident of birth." Again, McVeigh and Dahmer, like other criminals, are or were here because of an "accident of birth" -- they certainly did not earn their citizenship after some rigorous test. But implicit, and well-understood, in your statement is that Hamdi is an Arab -- he is not white, and his "forebears" (your words, not mine) did not help us create the "social compact."
Sounds blatantly racist, and I think it is. Again, show me the fallacy in my logic, without going to a cliche such as "The Greedy Clerk finds it hard to draw lines, so he (she?) simply stops trying" and without bringing up big scary names (after all, that Posner wants to rethink birthright citizenship in the democratic and/or legal process is entirely irrelevant to the question of whether the President can unilaterally deny rights to citizens). I doubt you can show any such fallacy, and I would suggest you think twice about your statement, and the many assumptions upon which it rested. You may learn something. -- GC
?
Or is the Greedy Clerk just another annoying reflexive Bush hater of the don't-bother-me-with-the-evidence variety?
Where is their a "reflexive Bush hatred" in my arguments???
(Disclosure: I did not vote for Bush, and I have been very vocal in other threads on this blog in criticizing Bush policies.)
And that is relevant to what?
I think Cold Warrior's posts should answer the question by someone above about why I condescend sometimes -- some people just ask for it.
I am not arguing that the Bush Administration's classification system is correct, or even rational. But let's think about this:
-- Greedy says Hamdi should have been afforded the opportunity to challenge the Administration's finding that he was an enemy combatant. Greedy doesn't say what tribunal should hear this challenge, but it's obvious s/he thinks the federal district court is the right place, and a habeas petition is the right vehicle. Why? If he had been a regular uniformed soldier captured on the battlefield would he have a similar right of petition to the U.S. federal courts? If the answer is "yes," please explain why an irregular combatant should be afforded more procedural protections than an ordinary POW. This is where critics like Greedy get caught up in the citizenship issue. There's a constant drumbeat: "Bush thinks he can lock up citizens indefinitely without providing them lawyers or access to the courts." But citizenship doesn't matter here. He was fighting for the enemy forces. So was John Walker Lindh. And it wouldn't have bothered me one bit if the Administration had decided to treat Lindh as an enemy combatant rather than as a criminal. In reality, he was probably both. And guess what: he's not an Arab. (This is the point of my Arab Fetishist comment: Hamdi's Arab ethnicity is interjected into the discussion as a convenient conversation stopper -- racist! -- when it really has nothing to do with the analysis.)
-- Well, then, what about our other citizen-"combatant," Jose Padilla? Perhaps it will surprise you to discover that I think his detention as an enemy combatant was overreaching, poor policy, and very likely illegal. Padilla was not captured on the battlefield. He was stopped at an airport. He was not armed in any way, except in the most strained definition of "armed" ("armed with sketchy plans in his briefcase/head regarding the making of a dirty bomb?"). Again, his "citizenship" is quite irrelevant here. There is not a strong case to be made that he should be treated as an "enemy combatant," and it is inexcusable that the Bush Administration took several years (and the fear of an imminent loss in court) to reach the same conclusion.
So I've really explained all I need to explain. Hamdi: caught on the battlefield, fighting U.S. forces. Not a uniformed regular. An unlawful combatant by definition. Properly held by military forces until the cessation of hostilities. Totally irrelevant that he was born in Louisiana. I only mention the fact to rebut the ill-theorized notion that somehow he gets a jury trial because he was born in Louisiana. Totally irrelevant that he is an Arab. Totally relevant that he was trying to kill U.S. forces. A Department of Defense review is all that he was entitled to.
-- Jose Padilla. Not caught on the battlefield. Some evidence (we're not sure how compelling) that he was a member of a terrorist organization, or at least a fellow traveler. Caught at a U.S. airport. Not an enemy combatant. Perhaps a criminal conspirator. Totally irrelevant that he is a U.S. citizen by birth who has lived his entire life in the USA. Also irrelevant that he is hispanic.
-- John Walker Lindh. See Yasser Hamdi. Same situation. One may question why he was criminally charged instead of treated as an enemy combatant. This may say something about the Bush Administration; it says nothing about me. Irrelevant that he is a caucasian Marin-ite. Irrelevant that he is a Muslim. See also the Australian (Hicks) detained at Guantanamo.
Now, after I've explained (and pointed out that your gratuitous references to Hamdi's Arab ethnicity and/or U.S. citizenship have no bearing on the issues at hand), would you care to explain exactly what "sounds blatantly racist?"
The "failure to respond" is called "having a life." I've been known to take a few hours off every now and then for dinner, maybe to read a book, which brings me to:
I must remember not to make little literary jokes to law students.
Me too, unless there is something I don't understand about this case, which is very possible, because the above bloggers don't agree with each other as to what the basic thrust of this case is about.
But if it's about executive power, that's troubling and a bad omen.
Did Roberts say why he dissented? I can't open pdf files (temporarily) so cannot read the opinions. Are they in non pdf format anwhere?
Thanks.