When Congress Passes an Intentionally Unconstitutional Law: the Im Litary Commissions Act of 2006 Paul A

SMU Law Review Volume 61 | Issue 2 Article 3 2008 When Congress Passes an Intentionally Unconstitutional Law: The iM litary Commissions Act of 2006 Paul A. Diller Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Paul A. Diller, When Congress Passes an Intentionally Unconstitutional Law: The Military Commissions Act of 2006, 61 SMU L. Rev. 281 (2008) https://scholar.smu.edu/smulr/vol61/iss2/3 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. WHEN CONGRESS PASSES AN INTENTIONALLY UNCONSTITUTIONAL LAW: THE MILITARY COMMISSIONS ACT OF 2006 Paul A. Diller* When Congresspasses a law with the intent that it be invalidated or substantially altered by the courts- "intentionally unconstitutional" legislation-Congress abdicates its role as a co-equal interpreter of the Constitution. Intentionally unconstitutionallegislation is particularlyprob- lematic in the national-security context, in which the Supreme Court has traditionally relied upon Congress to assist it in defining the limits of executive power. This Article argues that Section 7 of the Military Commissions Act of 2006, which attempted to strip the federal courts of jurisdiction to hear habeas petitions by alien enemy combatants held at Guantdnamo and other foreign sites, was intentionally unconstitutional legislation because some key legislatorssupported or facilitated the Act's passage while simultaneously arguing that Section 7 violated the Constitution. The Supreme Court's invalidation of the MCA's Section 7 in Boumediene v. Bush was, therefore, largely consistent with Congress' intent and not the "activist" decision its critics have decried. On the other hand, by allowing members of Congress to expressly violate their oaths to support and defend the Consti- tution, the Court's decision in Boumediene only reduces the incentive for members of Congress to take political risks to defend constitutionalprinci- ples in the future. The story of the MCA's passage and the Court's decision in Boumediene further demonstrate that Congress does not now just tolerate-but depends upon-the Supreme Court to assert itself as the exclusive interpreter of constitutional principles, at least in the national-security context. INTRODU CTION ............................................... 282 I. CONGRESSIONAL CONSTITUTIONAL INTERPRETATION AND (SUPPOSED) JUDICIAL DEFERENCE THERETO ............................... 284 * Assistant Professor, Willamette University College of Law. Visiting Assistant Pro- fessor of Law, University of Michigan Law School (Fall 2008). I thank Rich Birke, Stephen Crowley, Jennifer Evert, David Friedman, Hans Linde, Mark Nevitt, Fred Schauer, and Sara Zdeb, as well as Bobby Chesney, Geoff Corn, Jeff Kahn, Tung Yin, and the other participants at the 2008 National Security Law Junior Faculty Workshop at Wake Forest University for helpful comments. I also thank Adam Hollar and Jill Weygandt for excel- lent research assistance. SMU LAW REVIEW [Vol. 61 A. THE PRESUMPTION OF CONSTITUTIONALITY ........... 290 B. THE ASHWANDER CANON OF AVOIDANCE ............ 293 II. WHY MEMBERS OF CONGRESS VOTE FOR INTENTIONALLY UNCONSTITUTIONAL LEGISLATION AND THE PROBLEM OF INTENT .... 295 A. OBJECTIONS TO THE CONCEPT OF LEGISLATIVE INTENT AND ITS RELEVANCE .................................. 299 B. AMALGAMATING INDIVIDUAL LEGISLATORS' INTENTS. 301 III. SECTION 7 OF THE MILITARY COMMISSIONS ACT AS INTENTIONALLY UNCONSTITUTIONAL LAW... 305 A. HAMDAN AND ITS AFTERMATH ....................... 313 B. LEGISLATIVE HISTORY OF THE MCA .................. 316 IV. THE SUPREME COURT'S REVIEW OF THE MCA'S SECTION 7 IN BOUMEDIENE ......................... 325 CO NCLU SIO N .................................................. 333 INTRODUCTION IKE justices of the Supreme Court and the President, members of LCongress swear an oath to uphold the Constitution.' Particularly in times of war, the constitutional design has traditionally de- pended upon members fulfilling their oaths when enacting legislation that affects the separation of powers. Under the approach famously articu- lated by Justice Robert Jackson in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure case), 2 the Supreme Court relies on Congress to provide it with a credible signal regarding how much executive power the political process endorses. The Court, using its own interpretive techniques, then makes an independent decision regarding executive power that relies on Congress' informed judgment.3 Through- out, the Steel-Seizure model assumes that Congress intends for its legislation to survive judicial review relatively unscathed. Congress' passage of the Military Commissions Act of 2006-particularly, its habeas-stripping Section 7-and the Supreme Court's recent invalidation of Section 7 in Boumediene v. Bush4 represent a significant departure from the Steel-Seizure model. In purporting to strip habeas through the MCA's Section 7, this Article argues, Congress enacted a law that it wanted to see judicially invalidated, or at least substantially altered, by the courts. In doing so, Congress passed to the Court the sole responsibility for restraining the executive and deprived the Court of Congress' politically informed estimate as to how much executive power the Constitution permits. 1. See 5 U.S.C. § 3331 (2000) (oath of office administered to elected or appointed officials other than the president). 2. 343 U.S. 579, 635 (1952) (Jackson, J., concurring). 3. See Michael Stokes Paulsen, Youngstown Goes to War, 19 CONST. COMMENT 215, 229, 233 (2002). 4. 128 S. Ct. 2229 (2008). 2008] Intentionally Unconstitutional Law The MCA, passed in September 2006 in response to the Supreme Court's decision in Hamdan v. Rumsfeld,5 sought to establish a congres- sionally sanctioned system for detaining and trying foreign terrorist sus- pects. As this Article will explain, some key congressmen voted for the MCA while simultaneously arguing that its habeas-stripping Section 7 was unconstitutional. Like Senator Arlen Specter, the Pennsylvania Re- publican and Judiciary Committee chair who voted for the MCA while at the same time denouncing its habeas-stripping provision as "patently unconstitutional," 6 many members of Congress who voted for or otherwise facilitated passage of the MCA likely did so with the intent that, as Sena- ' 7 tor Specter said, the courts would "clean it up." In the end, Congress got what it wanted when a five-justice majority in Boumediene opted for a wholesale, rather than partial, "cleanup" of Sec- tion 7 of the MCA. The majority invalidated Section 7 outright rather than aggressively interpret it to render it constitutional, as Chief Justice Roberts urged in his dissent. Thus, Boumediene may have been an exer- cise in "judicial supremacy," as Justice Scalia charged in his dissent, 8 but it was not inconsistent with legislative intent. In the process of Congress getting its hoped-for judicial cleanup and the Court accepting this aggran- dizing role, the actions of both institutions imperiled Steel Seizure's dy- namic, three-branch model of constitutional interpretation. Congress' passage of the MCA and Boumediene's subsequent "cleanup" did not occur in a jurisprudential vacuum. Rather, as this Arti- cle will explain, the Court has for the last twenty or so years increasingly arrogated to itself the role of sole constitutional interpreter, essentially rendering meaningless the presumption of constitutionality for federal laws, a doctrine that is supposed to demonstrate the Court's respect for Congress as a co-equal constitutional interpreter. 9 Moreover, through its use of the "canon of avoidance," another doctrine that is supposed to demonstrate judicial respect for Congress's interpretive role, the Court has actually increased congressional dependence on aggressive judicial review. Thus, when the Court in Hamdan uncharacteristically attempted to "force democracy" by seemingly inviting the legislative branch to join it in crafting a constitutional system for detaining and trying terrorist sus- pects, it encountered a legislative branch unable and unwilling to engage seriously in upholding constitutional values. 10 Rather, contrary to what most scholars generally assume,11 Congress responded to Hamdan by en- 5. 548 U.S. 557 (2006). 6. See infra note 243 and accompanying text. 7. Daniel Michael, The Military Commissions Act of 2006, 44 HARV. J. ON LEGIS. 473, 479 (2007). 8. Boumediene, 128 S. Ct. at 2302. 9. Rust v. Sullivan, 500 U.S. 173, 191 (1991). 10. Posting of Jack M. Balkin to http://balkin.blogspot.com2006/06/hamdan-as-democracy-forcing-decision.html (June 29, 2006, 13:07 EST). 11. E.g., Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. & MARY L. REV. 1575, 1607 (2001) ("[I]I is safe to assume that government policymakers prefer, whenever possi- SMU LAW REVIEW [Vol. 61 acting a law that it wanted to see invalidated or substantially changed by the courts. In passing the MCA, Congress demonstrated that it does not just tolerate, but depends upon, the Court to be the primary, if not exclusive, interpreter and guardian of the Constitution, at least in the national- security context. This Article will proceed in four parts. Part I will explain how the con-

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