The Graham Amendment, Part II (or, Fancy Fodder for Your Federal Courts Final)

Back in the heady days when I thought the Graham Amendment, which would strip federal courts of the jurisdiction to entertain habeas petitions by Guantanamo detainees, was nothing more than a fun academic exercise (i.e., yesterday), I noted that there might be some fascinating and complicated constitutional questions arising out of its passage... (and sidestepped those questions in favor of the far-less-interesting topic of whether the Amendment was necessary to vindicate Justice Scalia's Rasul dissent).

[Note to self: Pick far less serious topics to bloawg about next week, like (1) why giving midterm examinations can be very bad to the social lives of young law professors; or (2) how to leave your apartment as a young law professor without running into at least ten of your students. Note to co-Prawfsblawggers: It was this or a fascinating account of my IM basketball team's thrilling 58-55 victory tonight... maybe I picked the wrong one?]

Well, late last night, the Senate passed the Amendment, 49-42. (The Dems who voted yes were Conrad, Landrieu, Lieberman, Nelson, and Wyden, who is curiously omitted from the Washington Post story, but who definitely voted "yea"; the Republicans who voted no were Chaffee, Smith, Specter, and Sununu). In short, the Amendment denies jurisdiction to any "court, justice, or judge" to consider a habeas petition brought by a Guanatanamo detainee, except as otherwise provided for by the Amendment, which includes limited review of decisions by "Combatant Status Review Tribunals" (CSRTs) in the D.C. Circuit.

The real question in the short term, then, is what this does to Monday's cert. grant in Hamdan [which I also had the ill-conceived notion to bloawg about earlier this week], since a fair reading of the Graham Amendment also cuts off the Supreme Court's jurisdiction to review Hamdan's habeas petition.

For students of federal courts (including the 25 who currently suffer through my blabbering every Tuesday and Thursday from 9:30 to 11 here at the U of M), this raises a fascinating confluence of four different important cases in the study of federal courts -- Marbury v. Madison, which bars Congress from altering the original jurisdiction of the Supreme Court; Ex parte McCardle, which sustains Congress's authority to deprive the Supreme Court of appellate jurisdiction, even though the Act depriving jurisdiction in that case was, like the Graham Amendment may eventually be, enacted while the appeal in that case was pending; Ex parte Yerger, which, following McCardle, held that the same statute at issue in McCardle did not deprive the Court of jurisdiction to consider habeas petitions filed in the Supreme Court in the first instance, and, in more modern times, Felker v. Turpin, which upheld the constitutionality of provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) that stripped the Supreme Court of jurisdiction to hear certain types of habeas appeals, entirely because petitioners could, as in Yerger, still file originally in the Supreme Court.

So where does Hamdan fit?

It seems to me that Hamdan raises the question implicitly reserved in McCardle and Yerger, and explicitly reserved by Chief Justice Rehnquist in Felker v. Turpin -- Would a statute barring the Supreme Court from reviewing an entire class of habeas petitions either on appeal or initially filed in the Supreme Court run afoul of the Due Process and Suspension Clauses?

[As an aside, Marbury turns out not to be a problem here because of an interesting analytical twist first adopted in Yerger -- even when a detainee files a habeas petition in the Supreme Court in the first instance, so bypassing the lower federal courts altogether, the Court is, under Yerger, only exercising its "appellate" jurisdiction. And that jurisdiction may be limited by Congress under McCardle. So there is no question whether the Graham Amendment alters the "original" jurisdiction of the Supreme Court, and therefore runs afoul of Marbury -- it doesn't.]

As to the deeper question that the case law doesn't resolve, I think the answer depends on two very different, but very important, constitutional questions: (1) Do Guantanamo detainees have any due process rights that such a statute would violate? (2) Does the Suspension Clause guarantee some form of habeas relief to the detainees? The first question has been already batted around throughout the blawgosphere.  The second question, far less so.

One thing is clear, however: If the Graham Amendment is enacted into law, the Court will almost certainly have to reconsider its jurisdiction to entertain Hamdan's appeal, and, in that regard, likely answer a federal courts question that has been left unanswered since 1869.

Caveat [what's Latin for "Federal Courts students"?].