The Supreme Court is supposed to announce interesting decisions today. I'll discuss them later today or early tomorrow. At this point, though, I'd like to highlight some less presently preoccupied writing.
Academic writers are, among other things, supposed to develop points of view that help their readers think about not only the most immediate and concrete aspects of events but also their more general and maybe more lasting dimensions. Mark Tushnet is an especially dry-eyed master of this sort of thing. In “The Political Constitution of Emergency Powers,” just published in the Minnesota Law Review (91: 1451), he emphasizes the narrowness of the Supreme Court's decision in Hamdan holding that the President could not set up military commissions of the sort he wanted without congressional authorization: That's all, nothing more. The Court's insistence that there need be legislation involved no substantial judgment about what commission procedures should look like. But this otherwise empty insistence also put in motion the “political constitution,” familiar congressional/executive dealings that serve generally as the mechanism through which decisions about commission procedures, for example, are reached. See, e.g., the Military Commissions Act. Tushnet shows at some length how those dealings are organized by parts of the Constitution. But he celebrates nothing (neither the Constitution nor Hamdan).”[I]f Hamdan is a triumph of the Rule of Law, so much be the Military Commissions Act. (Now apply the logical rule of contraposition.)” (1472)
Still and all there is a complexity that Tushnet also sometimes acknowedges. The Executive Branch isn't precisely unitary, and its own internal conflicts show up in the content of the Military Commissions Act, for example, even if Congress was in fact pretty much acquiescent. Marty Lederman's recent postings at Balkinization discussing decisions of two commission military judges and the striking 4th Circuit ruling are provocative in this regard. And see also David Kennedy's excellent and important new book “Of Law and War.” Legality is a form of politics too (not news to Mark Tushnet, of course: see almost everywhere in his huge body of work.) It overlaps other forms of politics (executive/legislative interactions inevitably address, among other things, the brute work of legal drafting.) The constitutional set-up, whatever other institutional politics it defines, is hardly ever free of legal infection and its consequences. (With regard to Hamdan and the Military Commissions Act, I discuss this phenomenon in especially cryptic ways in the same Minnesota symposium in which Mark Tushnet's article appears, see 91:1473.)
Writing in this Tuesday's Slate, Dahlia Lithwick, in the posting “Crisis of Confindence,” notes that the 4th Circuit opinion is, maybe among other things, an effort at “creating clean legal lines for the next enemy combatant case.” This is a very thoughtful essay. But it's not wrong to wonder, I think, whether the “legal lines” (“clean” or not) aren't also relevant in cases that are more mundane — involve no enemy combatants or other emergency elements. In this regard, Michael's and my colleague Ricardo Bascuas has written much worth thinking about in a new article soon to appear in the Rutgers Law Journal — titled “Fourth Amendment Lessons From the Highway and the Subway: A Principled Approach to Suspicionless Searches.” This is not a short work, but Bascuas's writing proceeds quickly, clearly and emphatically (it is legally sophisticated but also, I think, largely accessible to nonlawyers). The last part is for present purposes the most important. There he shows that it's entirely possible to think about searches incident to ordinary traffic stops and searches undertaken to protect subways from terrorist attacks in precisely the way, a way that turns out not only to be responsive to emergency, but to catch the most important element in our constitutional commitment to civil liberties (no police state) more clearly and effectively than the Supreme Court's famously muddled day-to-day efforts. (The article is posted on SSRN if you don't want to wait.)