When Congress Passes an Intentionally Unconstitutional Law: The Military Commissions Act of 2006

57 Pages Posted: 1 Apr 2008 Last revised: 10 Oct 2008

See all articles by Paul A. Diller

Paul A. Diller

Willamette University College of Law

Date Written: October 1, 2008


When Congress passes 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 unconstitutional legislation is particularly problematic 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 brought by alien "enemy combatants" held at Guantanamo Bay and elsewhere, was intentionally unconstitutional legislation because some key legislators supported 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 Constitution, the Court's decision in Boumediene only reduces the incentive for members of Congress to take political risks to defend constitutional principles in the future. The passage of the MCA and the Court's decision in Boumediene demonstrate that Congress does not just tolerate, but often depends upon, the Supreme Court's assertion of exclusive and final authority to interpret the Constitution, at least in the national-security context.

Keywords: legislation, habeas, national security, separation of powers, Ashwander

Suggested Citation

Diller, Paul A., When Congress Passes an Intentionally Unconstitutional Law: The Military Commissions Act of 2006 (October 1, 2008). Southern Methodist University Law Review, Vol. 61, 2008, Available at SSRN: https://ssrn.com/abstract=1114689

Paul A. Diller (Contact Author)

Willamette University College of Law ( email )

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Salem, OR 97301
United States
503-370-6595 (Phone)

HOME PAGE: http://www.willamette.edu/wucl/faculty/profiles/diller/

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