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Was Hamdan v. Rumsfeld an Exercise in Judicial Futility?

Published online by Cambridge University Press:  28 February 2017

Jide Nzelibe
Jide Nzelibe*
Affiliation:
Northwestern University Law School
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Abstract

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Type
The Supreme Court and the War on Terrorism
Information
Proceedings of the ASIL Annual Meeting , Volume 101 , 2007 , pp. 345 - 347
Copyright
Copyright © American Society of International Law 2007

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References

1 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

2 See, e.g., Flaherty, Martin S. More Real Than Apparent: Separation of Powers, the Rule of Law, and Comparative Executive “Creativity” in Hamdan v. Rumsfeld, 2006 Cato Sup. Ct. Rev. 51 Google Scholar, 51 (“Rarely has the Supreme Court handed a ‘wartime’ president a greater defeat, or human rights defenders a greater victory.”).

3 See, e.g., Ku, Julian & Yoo, John, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 Const. Comment. 179 (2006)Google Scholar (criticizing the decision as a break from past court precedents deferring to the executive branch in foreign affairs).

4 See, e.g., Walter Dellinger, A Supreme Court Conversation, Slate, June 29, 2006, available at <http://www.sla-te.com/id/2144476/entry/2144825/>.

5 476 F.3d 981 (2007).

6 Pub. L. No. 109-366, 120 Stat. 2600 (2006).

7 Stoli, Richard J. The Sound of the Guns: Is there a Congressional Rally Effect After U.S. Military Action?, 15 Am. Pol. Q. 223, 224-25 (1987)CrossRefGoogle Scholar (discussing the rally effect and showing that it affects members of Congress).

8 See Howell, William G. & Pevehouse, Jon C. Presidents, Congress, and the Use of Force, 59 Int’L Org. 209 (2005)Google Scholar.

9 Korematsu v. United States, 323 U.S. 214 (1944).

10 Id. at 242-48 (Jackson, J., dissenting).