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Court, Congress on collision course for constitutional crisis

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e wandered into a classroom recently at a certain distinguished law school where U.S. Sen. Arlen Specter, R-Pa., was taking questions from students. His responses reflected someone upset with the U.S. Supreme Court and the legacy of the late Chief Justice William Rehnquist, but one who is facing a historic dilemma.

Specter devoted several lengthy answers to an ongoing conflict between Congress and the court that we have described elsewhere as a constitutional crisis in slow motion. Indian country should pay close attention. This crisis began with an attack on the rights of American Indians who follow peyote medicine ways; other Indian rights could be put on the line as well. The rest of the country should also be watching nervously. The conflict will heat up sharply as it moves from Indian religious rights to the constitutionality of the Bush administration’s “war on terror.” As chairman of the Senate Judiciary Committee and a strong critic of the court, Specter is caught in an uncomfortable straddle.

Specter has attacked a string of court decisions limiting congressional power. At the same time, he’s opposed some of the sweeping legal changes in the “war on terror.” He failed narrowly in an attempt to remove the suspension of the habeas corpus writ in the new Military Commissions Act and was conspicuously absent when President Bush signed it into law Oct. 17 in a televised ceremony. He told the law school class that he expected the Supreme Court to strike down that provision. But, a professor asked pointedly, what if the court took Specter’s complaint to heart that it should defer more to Congress, and let the suspension of habeas corpus stand? That, Specter agreed, would be a crisis.

This constitutional dilemma has been building for a long time. In the past, the Supreme Court trod lightly when it passed judgment on acts of Congress. It respected the co-equal status of the legislative branch as well as its political power, and thought long and hard before overturning its laws. This attitude changed in the late 1990s after a prolonged confrontation on the issue of Native religious freedom.

It began with a suit for unemployment benefits in the case of Employment Division of Oregon v. Smith. Alfred Leo Smith, Klamath, was a substance abuse counselor for an agency in Oregon. In walking the red road, he joined the Native American Church and participated in peyote ceremonies. His employers considered it drug abuse; they fired him in 1984. The state refused him unemployment benefits. Smith and a co-worker sued, and the case reached the U.S. Supreme Court. In its 1990 decision, Justice Antonin Scalia abandoned a line of precedents and upheld the state. Indian protests found sympathy in Congress, however, and at the end of 1993 it passed the Religious Freedom Restoration Act, explicitly repudiating the Smith decision. The Religious Freedom Restoration Act passed the Senate 97 – 3 and the House unanimously.

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But the Supreme Court struck back. Acting quickly by its standards, it picked up a zoning dispute between a Catholic parish and the Texas hill town of Boerne. The 1997 decision by Justice Anthony Kennedy said almost nothing about zoning, but it reargued Smith at length and wound up declaring that Congress exceeded its powers in passing RFRA. It was unconstitutional, said Kennedy, for Congress to make religious freedom broader than the court thought it should be.

This decision, City of Boerne v. Archbishop Flores, began a series of court opinions trimming back congressional powers, and Congress hasn’t liked it one bit. Specter made it an issue in the last two court confirmation hearings, explaining that they were the only real chance the Senate had to exert influence on the court. But he baffled the media with his war cry, “proportionality and congruence.” This was shorthand for the rule Kennedy used in striking down the RFRA, a rule that Specter complained the court invented whole cloth. Obscure as it might sound (we haven’t heard of a more arcane red flag since “encryption of telemetry” was the issue in Reagan-era arms talks), the rule has passionately engaged leaders of both institutions. Specter recalled a lunch with Kennedy at which the two talked about nothing else.

(Kennedy, now considered the “swing vote” on the court, argued that Congress could only enact remedies for state government abuses that were “proportional” to the wrong. He explicitly denied that Congress had plenary power over states, thus exposing the hypocrisy of the congressional plenary power over tribal sovereignty. But that is another story.)

Although Specter argued that the court should be more restrained in overturning Congress, he is now sitting on the other side of the dilemma. He is strongly against a provision in the new Military Commissions Act that would deny the historic writ of habeas corpus to “alien enemy combatants” captured as alleged terrorists. Although overshadowed in the press by the torture issue, the suspension of habeas corpus touched a real nerve in the legal world. This writ, dating back to the late 13th century, is one of the basic guarantees of personal freedom. It allows the courts to demand a trial for somebody being held in state custody. (As a provision of the 1968 Indian Civil Rights Act, it is one of the federal constitutional rights applied directly to tribes.)

Specter introduced an amendment to the MCA to remove the habeas suspension. It failed narrowly, 48 – 51. In an emotional moment, he said he was willing to turn the clock back 500 years to fight terror, but 800 years was too much. (Asked about that quote, he told the law students he hoped that they were never in the position of saying something they later came to regret.) The MCA is now a centerpiece of the Republican Party’s “Security September” platform: witness the unusual live television coverage of the president’s signing ceremony. But civil liberties partisans are hoping for a quick Supreme Court review. (Specter noted that Congress had put a “severability clause” in the habeas suspension, meaning it could be overturned by the court without affecting the rest of the MCA.) The Center for Constitutional Rights has already filed a potential test case, seeking habeas corpus petitions for 25 detainees in U.S. custody at the Bagram Air Base in Afghanistan.

So Congress is once more on a collision course with the Supreme Court. This case might not have the impact of the earlier ones, since so many senators have their own doubts about the MCA and have all but said they hope the court will bail them out. The nightmare for civil libertarians is that the court would choose this moment to let Congress have its way. That outcome seems unlikely though for a court that has already overturned the administration’s initial apparatus for trying terrorists.

An accelerated constitutional crisis could be nerve-wracking for Indian country. In recent years Congress has been friendly territory for Indian issues, and the court has frequently been hostile. But if the friction between the two bodies intensifies, Indian causes could well be ground up between them.