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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, May 07, 2005

AEDPA Unconstitutional?


The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require
it.


-- Article 1, Section 9

As noted here, the Ninth Circuit is raising the possibility that AEDPA (which limited habeas corpus review in federal courts in certain respects) is unconstitutional.

"Those wacky Californians" most people might be saying. Still, the blog cited a dissent (from the 7th Cir.) that agreed with the sentiment. Basically, Judge Ripple argued that lower federal courts have a constitutional right to develop constitutional law, and not be restrained by a need to only take cases that offer relief based on clear Supreme Court precedent. Congress can remove jurisdiction over habeas petitions from the lower federal courts totally, if it cares to do so, but while they have it, the lower federal courts cannot be restrained in such a fashion.*

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

-- Art. III, Section One

This is interesting especially given the recent trend of the Supremes to take less cases and to rule narrowly in many of the ones they do take. This in effect leaves many things open ... but since the lower federal courts are restrained from ruling (in habeas appeals, often concerned with state law) on various issues not clearly decided, they will remain so in many cases. The fact that this puts a lot of power and discretion in the hands of the Supremes has been noted before. And, given current norms, the Supremes as noted aggravate the problem (if it is one) by not being as active in its review of the lower courts than it has in the past.

I am curious how the challenge will play out. As my original source noted, it remains a minority view, but it does appear to have some force.

---

* A broader attack respecting the law's unconstitutionality can be found here. The thread overall is interesting.

Also, the name of the law itself sets up a warning flag. The need of an more "efficient" death penalty is unclear, even if the use of habeas appeals to slow down the machinery of death predictably angered some people. Likewise, the law decreases habeas appeals overall, not only in the area of death penalty or anti-terrorist cases (the "A" part of the act). Thus, as with the PATRIOT Act, it is more broad than the rhetoric behind it or what legislation title suggests.