Boumediene and Fundamental Principles of Constitutional Power
12 Pages Posted: 11 Sep 2009
Date Written: September 9, 2009
This essay demonstrates that the Supreme Court’s decision in Boumediene has reaffirmed that Executive power is restrained by law and that judicial review of the propriety of executive detention of persons in time of war or some other national security crisis is an essential part of our constitutional process. Further, the extraterritorial reach of the Constitution places unavoidable limits on Executive power. In fact, in view of the constitutional design, it is a fundamental principle of our constitutional form of government that the Executive is “entirely a creature of the Constitution” and that “[i]t can only act [here or abroad] in accordance with all the limitations imposed by the Constitution.” Understandably, therefore, the Court has often reaffirmed the related principle that “[n]o man in this country is so high that he is above the law” and every known judicial opinion since the creation of the United States has affirmed that the President and all others within the Executive branch are bound by the laws of war.
Keywords: above the law, AUMF, Balzac, Boumediene, constitution, Downes v. Bidwell, executive, extraterritorial constitution, Guantanamo, habeas, law of war, Medellin, national security, Reid v. Covert, terrorism
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