Tuesday, March 01, 2005

Padilla Detained Illegally

The Volokh Conspiracy, among other sources, directs my attention to this ruling. A Federal Judge in South Carolina--Bush appointee, one might add--has ruled that the President does not have the authority to detain Jose Padilla as an enemy combatant. The Washington Post has an article on it coming out tomorrow, but frankly one would do better to read the Law Professor blogs out there for a good summation.

Nothing in the opinion is too earth-shattering, though conservatives across the nation would do well to read this quote:
"For the Court to find for Respondent would also be to engage in judicial activism. This Court sits to interpret the law as it is and not as the Court might wish it to be."

When the law explicitly grants certain protections, a Court is just as activist when it defaults to the democratic branches of government as it is when it overrules those branches to create its own social policy. It applies here, where the constitution very clearly mandates that criminals receive procedural protections (except in a few very limited scenarios not implicated by the case), and it applies to many of the "activist" rulings the Court has been criticized for in the past--most of which were just giving the 1st or 14th amendment some teeth. The law says equal protection, so the only "activist" decision would be upholding irrational restrictions that solely apply to gay couples seeking to adopt children. Somehow, this concept remains difficult to grasp, but amazingly enough sometimes "upholding the law" means doing things conservatives won't like.

The most interesting outgrowth of this is what will happen on appeal. There is obviously no way the 4th circuit court of appeals will not weigh in on this matter. But as I've pointed out, two of the top names on Bush's Supreme Court shortlist--J. Michael Luttig and J. Harvie Wilkinson III--both sit on that bench. If either is part of the panel, it could produce some interesting fodder for confirmation hearings.

3 comments:

N.S.T said...

"When the law explicitly grants certain protections, a Court is just as activist when it defaults to the democratic branches of government as it is when it overrules those branches to create its own social policy."

David Schraub-strict constructionalist- wow, I never thought I'd utter that phrase

DC Met said...

The ruling makes good sense as not only is Padilla an American citizen, but he was also picked up in Chicago's airport. If he'd been on the battlefield in Afghanistan or Iraq shooting at our troops, citizen or not, I would care less about his legal limbo, but these circumstances are different. I don't see how the court could rule any other way, and I'd be disappointed if they did.

Greg Ihrie said...

The term "strict constructionalist" isn't particularly useful if it means "the court shouldn't establish social policies," as no one really contests it.