[eDebate] Quirin Decsion-is it doubly moot now?...(maybe...maybe not)

Joe Patrice joepatrice
Wed Jul 12 10:03:40 CDT 2006


I think you're both partially right.  I suppose it's not completely moot
because one could rule the lawful/unlawful combatant distinction
unconstitutional, but the most interesting aspect of the case does seem
gone, specifically the part that functionally says "the President can do
whatever he/she wants to conduct a war."  Now that Congress has to
specifically authorize the President's tribunals this case, the Court has
overruled Quirin (and Scalia indicates Quirin was already legislatively
overruled through the DTA, where Congress put new limits on Executive
judicial power, but that's arguable, which is why this aspect wasn't already
off the table).

Basically an Aff could overrule Quirin by saying that there can be no
distinction between lawful and unlawful combatants, but they can no longer
overrule Quirin by saying the President lacks limitless power to execute war
as commander-in-chief.  So as I see it this case isn't gone, but has become
much smaller.

Joe
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