On the Severabilty of the Habeas Corpus Provisions of the Military Commissions Act

About a month ago, the New Yorker published Killing Habeas Corpus, Jeffrey Toobin's profile of Senator Specter's take on the Military Commissions Act (aka 'The Torture Bill'). It contained a revealing fact about the Senator, a fact whose significance Toobin seemed to have missed. Toobin quotes Specter as saying,

Specter is hoping the courts will restore the rights of the detainees to bring habeas cases. “The bill was severable. It has a severability clause. And I think the courts will invalidate it,” he told me. “They’re not going to give up authority to decide habeas-corpus cases, not a chance.”

Trouble is, the final version of the Military Commissions Act — the one the President signed — doesn't have a severability provision, although some earlier versions did. In theory, that usually means that the bill stands or falls as a whole — if one part of the bill is unconstitutional, the whole bill is void. (There are exceptions, for when the courts find Congress couldn't have intended that.)

So my colleague Steve Vladeck and I wrote the New Yorker a letter.

To the Editor:

In Jeffrey Toobin's marvelous profile of Senator Arlen Specter (“Killing Habeas Corpus,” Dec. 4), the Senator reveals that he labors under a fascinating misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Senator Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial (and, in our view, unconstitutional) habeas provision would have no implications for the continuing force of the rest of the Act.

In fact, as anyone who reads the Act will quickly discover, the statute as signed by the President contains no such provision. As a result, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. As the habeas-stripping clause was the subject of its own vote in the Senate, and the legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting severability.

We draw some comfort from this observation, although not from the apparent failure of one of the bill's coauthors to understand what he was voting for.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor

The New Yorker just published it, in a version that keeps the essential point but edited all the cute out of it:

Toobin's profile reveals that Specter labors under a misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial habeas provision would have no implications for the rest of the Act. In fact, the statute contains no such provision, and, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. Since legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting it.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor
University of Miami School of Law
Coral Gables, Florida

Of course, both Steve and I have complete faith that the Supreme Court could, if it wanted, find some excuse to sever the habeas provisions of the MCA from the rest of the bill — all they'd have to do is change current severability doctrine to fit. Whether it could be done in a principled way, on the other hand…

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14 Responses to On the Severabilty of the Habeas Corpus Provisions of the Military Commissions Act

  1. BroD says:

    On the Severability of ‘Point’ and ‘Cute’ in your letter to the New Yorker: is there any avenue of appeal?

  2. Bugboy says:

    I’m not surprised they hacked it up, if you wanted it published in its entirety, you might have saved the flowery language and kept it short and sweet, minimalist, if you will. Page space comes at a premium, remember that next time you send a letter to the editor.

    Look on the bright side, they DID get the point across, even if it wasn’t as readable as the original.

  3. Phill says:

    I have been predicting they would muck it up from the start. The more important question is whether this increases or decreases the probability for jail time for those who gave the orders.

    First would rulling the bill unconstitutional also void the pardons?

    Bush still has the pardon power, albeit one that only applies to offenses against the US. Rumsfeld and co cannot travel abroad without significant risk of arrest once the Bush administration terminates.

    If the tribunals bill had not passed Bush would have used the pardon power. He may not use it if he thinks that the bill still stands and his power of self dellusion is prodigious.

    So the litigation strategy must ensure that the final rulling does not come until after Bush has lost the pardon power, either in two years time or through impeachment and conviction.

  4. Joe says:

    Let me ask this:
    Did congress pass a bill with a severability clause, and did the president sign a bill WITHOUT a severeability clause? Does anybody have both versions available for a quick review? (I don’t have any law clerks who will do my bidding at the drop of a whim). (I can, however, mix metaphors like a pro).

  5. Michael says:

    The clause vanished on the floor at some point before the final vote.

  6. Michael says:

    would rulling the bill unconstitutional also void the pardons

    A delicious question I’ve been asking myself. It think it should. (And I also think that unless the bill is unconstitutional, there’s no other way to take back the amnesty.)

  7. Joe says:

    Michael:
    If the severability language dropped out of the bill before the final vote, Arlen Specter was asleep at the switch and we should charge him with the commission of a capital crime: Failure to proofread!! Could Specter pass one of your classes if he didn’t proofread his exams or papers before he submitted them to you? I doubt it.

    Joe

  8. Michael says:

    If this were really a capital crime, you’d have a DC bloodbath. One of the uglier features of GOP control of both houses was to hold back the text of bills until the last second — so that frequently nobody except maybe the leadership knew exactly what was being voted on.

    I’m glad that one of the Democratic reforms is to allow at least a day for people to read the text of bills before calling for a final vote.

  9. Phill says:

    No, its not a mistake here. Whoever removed the clause did it for a reason. It had to be removed from both bills. Possibly part of a deal.

    The amnesty only applies to one of the many types criminal acts that took place. If it falls due to the bill being declared unconstitutional then so much the better. I would be happy to see any member of the criminal go to jail for so much as an unpaid parking ticket.

    I suspect that in the end it is necessary to give an amnesty in any case. It would be better if participation in a truth and reconcilliation comission was the price of being granted amnesty but the alternative would be to give the T&R commission subpoena power and then cite those who fail to testify for contempt.

  10. anon says:

    Off topic: Same letter could have been written in 3 brief sentences. Very difficult to read.

  11. Marty Lederman says:

    Why wouldn’t it be severable? Isn’t it obvious that Congress would have been *more* likely to enact the remainder of the MCA if the habeas provisions had been excised?

  12. Phill says:

    Marty,

    That argument fails because the severability clause was in when the bill was first introduced. So the decision to remove the severability clause clearly made the bill more attactive to Congress because someone asked for it to be removed. They knew that there was very significant doubt as to the constitutionality of the bill.

    The courts should not engage in judicial activism here and attempt to second guess Congress. Congress decided that the bill should not be severable. If it was an oversight on the part of Congress they can pass the constitutional parts of the bill again.

    Its not like the Habeas provisions are the only pieces of the bill that have a constitutionality problem. Granting an amnesty for the express purpose of violating constitutional rights is also arguably unconstitutional.

  13. David says:

    There are things we can do to restore the writ habeas corpus

    projecthamad.org

  14. David says:

    There are things we can do to restore the writ habeas corpus

    projecthamad.org

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