Tim’s challenge turns out not to be much of one

In order to give my friend Ron Fournier a vacation, I’ve been picking on his boss at National Journal.

Tim GrieveWell Tim’s given me a challenge, which I’m going to pick up cold, right here in public.

(Don’t try this at home, folks.)

Here’s the challenge, over three tweets:


First of all…

Let me just say that I work 40+ hours a week at an actual job in a world that has nothing to do with politics and arguments about separation of powers.

So it’s a tad rich to be asked by a full-time professional political journalist to essentially prove a negative.

But here I go.

Who are Hamdi, Hamdan, and Rasul?

I only recognize two of the names, so I’m immediately suspicious that the third one is a ringer, designed to make me overconfident and trip up.


Accused by U.S. authorities of having taken up arms against the U.S., Yaser Esam Hamdi was an American citizen captured in Afghanistan and detained indefinitely by the military in a brig in Norfolk, Virginia.

His was a habeas case brought by his father, with the Supreme Court ultimately deciding that, though Congress had given to the president significant power to hold detainees, as an American citizen, Hamdi was guaranteed due process that was being denied to him by holding him indefinitely without being able to consult a lawyer.

Therefore not a separation of powers case.


Hamdan was decided purely on statutory interpretation and a pretty unusual application of the 1949 Geneva Conventions, and was also not a separation of powers case.


Rasul is the ringer. I have no clue who he is.

Time for Google…

Turns out Shafiq Rasul was a British citizen captured in Afghanistan and held in Guantanamo.

His was also a habeas case. Whereas Hamdi was about citizenship, Rasul was about defining U.S. territory as it applies to Guantanamo Bay.

Therefore also not a separation of powers case.

So Tim…

Why were you trolling me on this?

Is three habeas cases what you meant by “SCOTUS repeatedly rebuked Bush for violating separation of powers”?

Did you mean some other cases?

I’m pretty sure Glenn Kessler would be throwing a whole bag of Pinocchios at you over this.

I feel bad for you, bro.


Tim has replied, quoting from Hamdi:

In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government.

The problem with this quote is that the Court didn’t bring up separation of powers in issuing a smackdown. The administration brought in separation of powers, claiming Congress was siding with it against the Court.

A plurality (not nine!) justices disagreed with this argument.

That’s not a separation of powers smackdown.

On Rasul: “the court rejected Bush’s claim that courts have no authority over indefinite detentions.”

Which is a disagreement over separation of powers.

Between the administration and the Courts.

Big surprise: The Court disagreed.

I see in none of these cases and rulings any hint of the president trying an end-around of Congress and getting slapped down by the third branch.

I see the third branch—whether correctly or not—instead focusing on the individual rights of the detainee.

Not a separation of powers slapdown at all.

Nine to nothing when you’re circumventing Congress ain’t nothing.


Not circumventing—that’s what Bush and previous presidents did every day with their morning coffee—but defiantly poking your finger in the eye of Congress, telling them what their own rules are.

That is what the Court slapped down.

How many 9-0 cases was the Bush administration on the wrong end of?

For the Obama administration, that number now stands at 13.

Nine to nothing.

Update Two

Ran across a related discussion (which begins here).

One of the participants in the thread makes a good point here, which I largely agree with:

Orin suggests that the positions the administration took in these cases were not extreme in the sense that they were not “unusual position[s] that go… way beyond what the repeat-player litigant would be expected to take.” In many of these cases, this is true (though not always: even Justice Elena Kagan, Obama’s former Solicitor General, expressed incredulity that the administration took the position it did in one of these cases). But this is precisely the problem I have emphasized in my writings on this subject, going back to my USA Today op ed last year. It has become normal for administrations of both parties to latch onto highly dubious – and, yes, extreme – theories of federal power whenever they might help the administration promote its policy agenda or win a case in court. Such behavior is not “extreme” in every possible sense of the word. But that is hardly reassuring.


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