The Unreviewable Executive: Kiyemba, Maqalehm, and the Obama Administration

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This essay, prepared as part of a Constitutional Commentary symposium on comparisons between the Bush and Obama Administrations' approaches to presidential power, highlights one area in which, both on and beneath the surface, there are disturbing similarities between the arguments of the Obama Administration and its predecessors vis-à-vis executive power: the proper role of the federal courts in detainee habeas cases. In particular, my thesis is that arguments against judicial power in habeas cases are effectively arguments in favor of executive power, since they presuppose that the merits of the petition - whether the detention of the petitioner is legally authorized - are irrelevant. In other words, even though it is Congress in the current cases that has purportedly divested the federal courts of jurisdiction (or otherwise constrained their authority), and Congress that has purportedly authorized the underlying detention, the real significance of arguing against habeas review is that it is an argument against a vital check on the executive’s detention power. Indeed, congressional authorization for detention would hardly be necessary if, simply by virtue of the detainee’s location or status, the federal courts lacked the power to hear his claims or to provide effective relief. Thus, this essay suggests that a heretofore underappreciated aspect of executive power is that of the anti-judicial (or “unreviewable”) executive - the idea that arguments against judicial power, especially in habeas cases, inevitably reduce to arguments in favor of presidential prerogative. After laying out this thesis in Part I, Part II turns to three specific cases in which the Obama Administration has continued to contest the habeas corpus powers of the federal courts. My goal is not to take substantive issue with the Obama Administration’s arguments in these cases, even though, to be candid, I find them all deeply troubling (in Kiyemba II, especially). Rather, this essay suggests that, in comparing the Bush and Obama presidencies with regard to executive power, a focus on headline-grabbing topics such as military commissions, governmental secrecy, or electronic surveillance confuses superficial similarities with structural ones. On the whole, the Obama Administration has been far less unilateral in its approach to executive power - but with the important and troubling exception of the cases discussed herein.

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