A question for my attorney readers
I know that at least a few of my regular readers have law degrees and have at least some interest in constitutional law, so it is primarly to you that I'll address this question, although I welcome input from anyone with a (rational) thought on the matter:
How can Congress pass a law (such as in immigration deporation issues, and as often implied in issues around how we treat captured Al Qaeda prisoners) that says a judge may not review the action of an official or an agency or the military?
| Print article | This entry was posted by Rossputin on 07/06/06 at 05:39:37 am . Follow any responses to this post through RSS 2.0. |
Yours truly
-
Following Obama's Economic Policies
Facebook NetworkedBlogs
XML Feeds
07/06/06 @ 07:34:35 am
Short answer: Article 1, Section 8, "To constitute tribunals inferior to the Supreme Court".
Congress has the power to establish any system for review of cases below the Supreme Court and this power has no restriction in terms of branch (i.e. there's no requirement that review be without the executive branch or in any particular form).
The Supreme Court's power of review is limited by Article 3, Section 2, to "...all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority"
So even the Supreme Court has very limited powe. Congress can't take constitutional review away, but pretty much everything else they can.
Short, but I think hits the mark. Remember that the Supreme Court's power to review legislation is itself a judicial fiction (whether appropriate or not we can debate) of Marbury v. Madison
07/06/06 @ 08:44:32 am
Freak, I'm not sure that answers my question entirely...
I'm not asking just about how the Supreme Court's right of review is limited, but how Congress can give an agency authority and say it is unreviewable by ANYBODY?
07/06/06 @ 10:00:44 am
The Supreme Court's right of review is limited and any other right of review beyond Constitutional review is up to Congress to grant.
07/06/06 @ 04:10:24 pm
Ross, great question. Short answer: Article III, Section 2 states:
The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.
Of course, it's never that simple...especially when some justices prove again and again that they can interpret some constitutional words out of existence (see Kelo v. New London for the best example) and pull other words out of thin air (see Roe v. Wade). I haven't read any of the Hamdan decisions, but I'm confident the dissent covers the issue at least briefly.
beltwayblitz.eponym.com