AEDPA’s constitutionality: the issue escalates
on May 19, 2005 at 4:00 pm
The Ninth Circuit has invited the Solicitor General to join in a fundamental examination of the constitutionality of the 1996 law passed by Congress to curb habeas corpus in federal courts — the Antiterrorism and Effective Death Penalty Act. The order significantly escalates a judicial inquiry that could lead to a major inter-branch conflict with Congress.
In an order issued Wednesday (and posted at midday Thursday by Howard Bashman at How Appealing blog), two judges on a three-judge panel in the case of Irons v. Carey (Circuit docket 05-15275) have certified the constitutional question to the Justice Department, as federal law requires when a federal law’s validity is at issue.
The panel held a hearing on the Irons case on May 11, and began probing the constitutional issue at that time. The two judges on the panel who support the constitutional inquiry examined lawyers closely on it. (Those two judges do not have the support of the third for this inquiry.)
In the new order, the panel told parties on both sides of the case to file supplemental briefs within four weeks, to discuss whether AEDPA intrudes on the Judicial Branch’s independent authority to determine the sources of law guiding its decisions on habeas. The specific questions posed to counsel were the same as the panel had told lawyers to be prepared to argue at the May 11 hearing.
Certifying the constitutional question to the Justice Department, the Court said the Department — represented, of course, by the Solicitor General — may intervene and file a brief, also due within 28 days. The Court left open the possibility of further oral argument, and invited interested parties to seek permission within two weeks to file amici briefs.
Circuit Judges Stephen Reinhardt and John T. Noonan, Jr., are supporting the constitutional probe. Circuit Judge Ferdinand P. Fernandez, also on the Irons panel, is refusing to join in the orders.
