Tom and Jerry (and Spike): A Metaphor for Hamdan V. Rumsfeld, the President, the Court and Congress in the War on Terrorism

Abstract:     
This article is part of a symposium, guest edited by Mark Tushnet, reviewing key decisions from the Supreme Court's October 2005 term. The landmark decision in Hamdan v. Rumsfeld has been emphasized as one of statutory interpretation, leaving it up to the President to seek from Congress the authority he deems necessary to fight the global war on terrorism. Yet, Hamdan is not merely a decision of statutory interpretation. It furthers a trend begun in the 2004 trio of terrorism cases: Rasul v. Bush, Rumsfeld v. Padilla, and Hamdi v. Rumsfeld. Those cases were also (primarily) statutory interpretation cases, but with a subtle distinction: the two cases brought by citizens resulted in interpretations of statutes favorable to the government; the one case brought by aliens, like Hamdan, resulted in interpretations of statutes favorable to the individuals. In other words, these cases cannot be explained as instances where the Court has consistently construed ambiguous statutes against the Executive Branch. In this article, I consider why the Court has opted to favor aliens but not citizens. A tempting explanation is that the Court is acting in a "representation-reinforcing role," ensuring that politically powerless aliens detained outside the country are not oppressed by the political branches. However, under that analysis, the Court would be expected to make decisions of constitutional law, not statutory interpretation. Instead, I conclude that the Court's decisions can be understood as taking advantage of congressional inertia. Congress remains free to undo the Supreme Court's statutory interpretations, but it must overcome that inertia to act. In effect, this is a "clear statement of intent to discriminate against aliens" requirement.

Number of Pages in PDF File: 33

Keywords: war, terrorism, fight, global war, Hamdan, Rumsfeld, Congress, Supreme Court, statutory interpretation

JEL Classification: N4

Accepted Paper Series