but, Youngstown gives us;
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of “war powers,” whatever they are.

nuances aside, and given the Administrations penchant for claiming executive privilege, I still think Youngstown is relevant here. The Padilla case seems to fall into the second test of Youngstown and is therefore ripe for the SC.

If this is the case, then surely the case is not moot, but justiciable, right?

And given the plethora of current controversies related to Executive plenary powers in wartime, why in the world would SCOTUS NOT want to review this now? It would seem an abdication of their responsibility to not address this issue clearly and definitively, given the significnt upheaval on these Article II issues.

This is not to speak of the transfer of custody, per se. But unless I’m missing something (quite possible) it does seem clear that, given the above, there is a live, reviewable controversy on habeas corpus before the SCOTUS.

The Executive may not like it. But, you know, if it’s the law…

The argument that this particular check (Rule 36) does not apply to this particular executive power (release of a prisoner from military custody) is not inconsistent with Youngstown.

Regarding transfer of custody, the irony does not escape me that the 1st time Padilla went to SCOTUS, Clement argued the case that defense was erroneous on jurisdiction. Am I misinterpreting this? Clement argued that Padilla’s case couldn’t be tranferred across venues, but Padilla himself can? Won’t this transplant the case to a different jurisdiction, precisely what Clement argued against in the first case?

On the issue of Rule 36, it seems the Administration is reaching on its powers under the Commander in Chief role. Echoing the sentiment with the FISA courts, the Administration is arguing that Rule 36 does not apply and that the courts have “no basis for questioning” the Administration.

Isn’t the argument that there is no applicability to a check on executive power in direct contrast to Youngstown?

Very impressive and apreciate analysis here. Thanks.

I also had posted about my father who was an architect of the electronic surveillance grid now part of ECHELON, when he worked for IBM and Bank of America.

I would reserve judgment on whether the Volokh issue is conjecture — maybe the WH can explain.

The Court does not need to address the motion at this time. If the Court does not review the motion at this time, then it will be hearing the case-in-chief and decide the motion at that time.

Does Roberts need to recuse himself?

If the Court entertains the motion, what happens then? Can the motion be considered without addressing the principal case? Can the pending case be dismissed, thereby ending jurisdiction? Would a dismissed cert give the Fourth Circuit another bite at the apple in the main case? Could the Fourth Circuit decide to withdraw its order and write a new one holding that Padilla is not an enemy combatant?

Everyone seems to think that the Supreme Court does not want to hear this one. It could well be that they are itching for a chance to decide a Presidential powers case.

Who says that there is a war going on? Does the Consitution allow the definition of war to be extended into this President’s concept of war (and the current Congressional view) in direct conflict with the definition when the Consitution and related amendments were drafted? Why would a strict constructionist Court not want to add that question to the issues in the Padilla case (if it is not already being briefed)?

Cliff Potter