Question

In Hamdan v. Rumsfeld (2006), the Supreme Court considered whether it had jurisdiction under

the Detainee Treatment Act (DTA) of 2005 to consider the habeas corpus petition of Salim
Hamdan, who was being held at Guantanamo Bay. Although the dissent argued that the court did
not have jurisdiction, a 6-3 majority Supreme Court decided that it did, and proceeded to rule on
the merits.
a) Suppose that the federal government wished to strip the Supreme Court of jurisdiction in all habeas
corpus petitions of all individuals being held at Guantanamo Bay. Discuss what actions the president or
Congress could take to do so. Discuss the potential basis for such power.
b) In the context of the scenario, discuss how such actions by the federal government would promote or
interfere with the separation of powers, and discuss the potential constitutionality of any such actions.

Answer 1

a)↪ To prevent the Supreme Court from hearing cases of Guantanamo Bay detainees, the federal government could pass a law or have the President issue an order that says the Court can't get involved in those cases. This might be based on the part of the Constitution that lets Congress make rules about what cases the Court can hear.

b)↪ Doing this might upset the balance between the different branches of government, because it could seem like one branch is telling another what to do. It might not be seen as fair or in line with the Constitution. Whether it's allowed or not would depend on how it's done and if it respects the basic rules of the Constitution. It could end up being a legal question and might be challenged in court.

Answer 2

Part (a)

The president or Congress could take the following actions to strip the Supreme Court of jurisdiction in all habeas corpus petitions of all individuals being held at Guantanamo Bay:

• The president could issue an executive order that would declare that the Supreme Court does not have jurisdiction in these cases.
• Congress could pass a law that would explicitly strip the Supreme Court of jurisdiction in these cases.

The potential basis for such power would be the president's Article II authority as commander in chief, or Congress's Article I authority to make laws.

Part (b)

Such actions by the federal government would interfere with the separation of powers. The Supreme Court is the ultimate arbiter of the meaning of the Constitution, and stripping it of jurisdiction in these cases would effectively give the president or Congress the power to decide who is entitled to habeas corpus. This would be a significant expansion of executive or legislative power, and it would undermine the principle of checks and balances.

The constitutionality of such actions is a complex question. The Supreme Court has held that the president does have some limited authority to detain enemy combatants, but it is not clear whether this authority includes the power to strip the Supreme Court of jurisdiction in habeas corpus cases. Similarly, it is not clear whether Congress has the power to pass a law that would explicitly strip the Supreme Court of jurisdiction in these cases.