Law Commons^™

The Unitary Executive, Jurisdiction Stripping, And The Hamdan Opinions: A Textualist Response To Justice Scalia, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

In Hamdan v. Rumsfeld, a five to three majority of the United States Supreme Court held unlawful the Bush Administration's use of military commissions to try alien combatant detainees held at the United States airbase in Guantanamo Bay, Cuba-at least until and unless Congress enacted more specific authorization for the composition and procedures of the commissions. 1 There are many features of the Court's opinion that we find questionable: its analysis of the wartime scope of the "executive Power"2 vested in the President by Article II of the Constitution,3 its construction of the statutes that supposedly limit the President's power …