Boumediene and the Meanings of Separation of Powers in Emergency LawReview of Constitutional Studies (2010)
AbstractAbstract The article examines the conception of the courts’ role vis-à-vis the political branches in a national emergency that underlies the recent case-law on the rights of the detainees held in Guantanamo Bay. It challenges the proceduralist view that courts have a constitutional duty to abstain from interfering with measures that have congressional and executive support. It argues instead for an alternative approach, whereby courts retain a supervisory role with regard to the content of such measures and their conformity with substantive constitutional guarantees. According to this approach, the “deep structure” of judicial duty in a national emergency is given by the proper combination of considerations of content and institutional design. The article then compares Hamdan, which was widely thought to support the proceduralist view, with the most recent decision in Boumediene. It concludes that both cases can best be explained by appeal to the alternative understanding offered here.
- Emergency law,
- civil liberties,
- separation of powers
Citation InformationDimitrios Kyritsis and Emily Hartz 2010. "Boumediene and the Meanings of Separation of Powers in Emergency Law" Review of Constitutional Studies 15:1 149-176