Brexit and the waning days of the United Kingdom

[CountDeMoney]

Missus Hippy 

They're all pretty broad across the quarterdeck down there, aren't they?

[The Minsky Moment]

I believe you're incorrect--I think that that ruling, as it pertains to jurisdiction stripping, focused pretty heavily on "specific wording." The fact that congress did not make it clear with its wording that jurisdiction stripping applied to pending cases, and also that several aspects of the creation of the commission were not actually authorized by the statutes the Bush Administration had used as justification for creating the military commissions. I find no strong argument that it significantly impaired Congress's future ability to aggressively jurisdiction strip, if it does so in a clear-cut, unambiguous manner.

In Hamdan, there was a statutory construction  that read out the conflict, but on a principle of construction that required evidence of clear Congressional intent.  And in Boumediene, OTOH Kennedy held that the statute did strip jurisdiction, specifically in response to Hamdan.  The Court still decided the case on Suspension Clause grounds, which it could not do on the broad theory of jurisdictional stripping.

Further, given the plaintext of the Constitution gives Congress authority over what the appellate jurisdiction is, and the very form and function of all courts under the Supreme Court (and even they control the form of the Supreme Court), that if the judicial branch attempted to overreach and countermand this clear congressional power the political wings of government would be in a situation where they were justified in simply ignoring the court's power entirely--a valid mechanism of fixing inappropriate judicial overreach.

Here the mask seems to be slipping a bit - at least this looks more like prescriptive argument in favor of an interpretation rather than mere description of the interpretative state of play.  The plain text is not so clear.  The text unambigiously reverses the entire judicial power to the Supreme Court and the inferior courts.  The Judicial power is then described in Section 2. Section 2 then says the Supreme Court has appellate jurisdiction other all such cases (non-original) "with such exceptions and under such regulations as the Congress shall apply."

Question is whether this subclause is regulatory in nature - i.e. Congress is supposed to fill in the details and no more - or whether this is broad plenary power .  Historical evidence does not decisively answer the question.  However, I would note that the latter broad  interpretation would empower Congress to strip the federal courts of all Article 3 authority whatsoever other than for a few original jurisdiction cases.  That seems unlikely to have been the intent.

[OttoVonBismarck]

I'm not entirely convinced that the judicial branch even necessarily must exist under a plain reading of the constitution. What if congress had never passed the early judiciary bills establishing the lower courts and the Supreme Court? Obviously the Supreme Court is supposed to exist, but they draw salaries, they need a place to hold court etc. Those things can only be provided by legislative act, given that on the moment of our first congress gaveling in no Federal courts existed at all, and statute was required to bring them into existence I think it's at least a valid theory you could undo that. I think there'd be a strong argument Congress would be derelict in one of its legislative "duties", but I'm unfamiliar with any mechanism in our government in which congress can be compelled to do something it's "supposed to do."

But nonetheless--when we started this discussion I did note that for political reasons jurisdiction stripping is not a meaningful check on the judiciary, which puts us back to constitutional amendments. I think the judicial branch in the United States has been able to become so powerful (the supreme court in particular) because they've been more or less conservative and have only accrued their power slowly over time, and with broad public acceptance for their role in society. I think a truly dangerous supreme court would be wiped out pretty quickly by the political branches. It's just as a matter of good governance I don't think one unelected, unaccountable man should have as much power as justice Kennedy. Which is why if we were reworking the constitution I'd require a large supreme court and probably a requirement they have like 21 members who serve single fixed 20 year terms, and who can only hear cases in panels that are drawn from the full membership, and the panels assigned to different cases would have to be done somewhat algorithmically.

I also think ignoring the Supreme Court is also always an option, I think every President does it at least somewhat. Like Hamdan was still in prison for years after that case, just as an example. Obama has arguably brazenly ignored the Supreme Court on several occasions as well.

[mongers]

[jimmy olsen]

Tories apparently warning that May has the zeal of a convert and will do things 'no true Brexiteer' would do.

Normandy, you have been warned...

Actually leave the EU? 

[dps]

if we were reworking the constitution I'd require a large supreme court and probably a requirement they have like 21 members

Congress could do that by statute--the Constitution doesn't set the size of the Supreme Court.  OTOH, if the Republicans in Congress have an over-ride proof majority after the next election and really, really didn't want to let Hilary appoint any justices they could just cut the size of the Court to 8 justices.  It's been done before--after the Civil War, the Radical Republicans cut the size of the Court from 10 to 9 justices, and FDR tried to get Congress to increase the size of the Court so that he could appoint more justices so the Court wouldn't rule New Deal legislation unconstitutional.  But even with FDR's big re-election win in 1936 and firm Democratic control of Congress at the time, that idea didn't fly.  I think that probably shows that respect for the Court had increased between the Civil War and the Depression to the point that playing those sort of games with the judiciary had become politically impractical.  Of course, I suppose that attitude could turn around at some point.

[jimmy olsen]

As everyone but the leavers expected, no single market access without free movement.

https://www.theguardian.com/world/2016/jul/03/eu-swiss-single-market-access-no-free-movement-citizens

[Josquius]

They really could have solved the Swiss stuff before the ref

[Sheilbh]

So Farage has resigned...

The nation turns to the Lib Dems for firm constant leadership.

[The Brain]

So Farage has resigned...

Why?

[Richard Hakluyt]

I think he ran out of steam a couple of years back, not surprised he has resigned.

[celedhring]

He's just got what his party was created for, I can't think of a better moment to go.

[Legbiter]

He's just got what his party was created for, I can't think of a better moment to go.

Aye.

[Tamas]

So Farage has resigned...

[Crazy_Ivan80]

So Farage has resigned...

heh