Digging into the mailbag, I received these (fairly challenging) questions yesterday regarding McCardle, Klein, and the Mititary Commissions Act:
QUESTION: I see how under McCardle the Supreme Court did not need address the question of what happens if congress cuts off all avenues of appellate review because of the Judiciary Act of 1789. I also understand that, after oral argument but prior to final judgment, Congress saw that the Court was not going to rule in its favor, so it repealed the statute and the Court held that this was okay. I'm having a difficult time seeing how that is fundamentally different from Klein when, during the course of the suit, Congress attempts to prescribe "rules of decision," and the Court held that this is unconstitutional. I know you stated that Klein muddied the water, but I have been unable to convincingly distinguish the two.
ANSWER: Terrific question, and I'm not sure I can convincingly distinguish them, either. Here is my best effort. In McCardle, the statute was a facially neutral withdrawal of jurisdiction. We knew Congress's intent, but the law itself simply repealed an existing statute granting jurisdiction. It thus applied equally to everyone, including the government. In contrast, the law in Klein was decidedly non-neutral (even though it was styled as a regulation of the Court's jurisdiction). The statute in Klein only applied when the claimant had been granted a pardon by the President. It then efffectively directed the court to rule against one party -- the claimant. Thus, the government could never have lost or been deprived of jurisdiction that it sought. Rather, it effectively worked to direct the court, in certain pending cases, to rule in favor of the government (after the claimants had already sought and receieved pardons). In McCardle, by contrast, the withdrawal of jurisdiction worked both ways. In cases similar to McCardle's, neither the government nor the petitioner could seek the Court's jurisdiction.
QUESTION: In addition, the MCA example seems to ask the question McCardle failed to answer -- i.e., what happens when all appellate avenues are stripped from the Supreme Court by Congress? Does Boumediene, in determining foreign nationals held outside the jurisdiction of the U.S. still have a right to habeas corpus essentially render such a blanket denial of appellate jurisdiction to the Court by Congress as unconstitutional and thus give us our answer?
ANSWER: First, I think it is too early to tell exactly how broadly Boumediene will be understood. Second, as a technical legal matter, I think the answer is no. Boumediene specifically concerned the breadth of the Suspension Clause, and whether it afforded any positive rights to individuals who are not citizens and being held outside the technically sovereign areas of the United States. The Court held that such persons are indeed protected by the Suspension Clause. But under Boumediene, at least as I read it, there does not appear to be any right to judicial review in an Article III court per se. Instead, there must be meaningful review of the detention, and that potentially could occur through some other mechanism. Also, I do not read Boumediene as guaranteeing Supreme Court review (which is what the Exceptions Clause addresses). I think review in a United States District Court or the Courts of Appeals, if meaningful, could be sufficient. So I do not think Boumediene actually addresses the issue of cutting off all avenues of Supreme Court review.