June 30, 2006 - “[A] state of war is not a blank check for the President.”  Justice Sandra Day O’Conner wrote in June 2004 in the Supreme Court Opinion ruling that persons confined by the military as “enemy combatants” had the right to challenge their detention in the courts of the United States.  Yesterday the Supreme Court ruled that the military commission system created to try Guantanamo prisoners was illegal and the President is bound by United States Law and the International treaties to which the United States is a party.  Many legal scholars are describing the ruling in Hamden v. Rumsfeld as a defeat for the Administration and a restoration of the system of checks and balances that Bush has weakened in the aftermath of 911.  That celebration of the triumph of Constitutional checks and balances over arbitrary government may be premature 

In response to the Court’s ruling the President said, “To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so.”   While it was less defiant than Andy Jackson’s response to Worchester v. Georgia; "John Marshall has made his decision; now let him enforce it."; it was far short of a pledge to obey the rule of law and the Constitution.   Jackson sent troops to evict the Cherokees whose land rights were affirmed by Justice Marshall’s decision and send them on the trail of tears.  George Bush has made it clear that he does not intend to recognize the right to due process that the Court affirmed in this case any more than he intends to comply with the Congressional ban on the employment of torture against detainees.

There is a powerful political message in the case.  It illustrates just how important to the maintenance of America’s Constitutional system of Government the 2006 off year election has become.  The vote in this case was 5 to 3 with Chief Justice Roberts having already declared his opinion that the check was indeed blank when ruling as an Appellate Court Justice.  With 3 of the 5 who affirmed Constitutional limitations on executive powers staring mortality squarely in the face as a result of age; control of both houses of Congress has become most crucial.  Filling a Supreme Court vacancy in the last two years of the Bush Presidency may well forever change the outcome of the grand 230 year experiment in democratic government that we celebrate next Tuesday.  November 6th may well decide whether the Constitution, the Laws and the Treaties of the United States are more than mere scraps of paper ready to be discarded.