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May 5, 2005

Constitutional challenge to AEDPA standards?

Howard Bashman at How Appealing reports in this post that the Ninth Circuit, nearly a decade after congressional passage of revised federal habeas standards through the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), is asking parties to address "whether AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this court should decline to apply the AEDPA standards in this case."

The Ninth Circuit's order is available here, and Howard rightly notes that the Justice Department likely "would want to participate in this debate either as an amicus or through intervention to defend the constitutionality of this important federal law."  Of course, any broad ruling about habeas review standards could impact not only the many state capital cases that move through federal habeas, but also could eventually impact state Blakely claims when they make their way into federal habeas.  This could be a big story that merits following closely.

May 5, 2005 at 12:04 PM | Permalink


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Tracked on May 5, 2005 9:09:12 PM


This isn't like Boerne or Dickerson because Congress hasn't attempted to alter any constitutional rules, and this is unlike Klein or its ilk because unfettered habeas review still exists in the Supreme Court. If Congress can abolish the inferior federal courts, can't it restrict their habeas jurisdiction to blatant errors?

Hence Reinhardt's reference to Marbury, in which Marshall highlighted the impermissibility of requiring a court to overlook a constitutional defect with a statute it was charged with enforcing. So may a circuit court judge be required to ignore a constitutional defect with a conviction because the Supreme Court hasn't yet spoken to the issue or because the error wasn't blatant?

The answer, which I assume will be cited in the briefs, is yes. This precisely the argument that Justice Rutledge advanced in his dissenting opinion and that was rejected by the majority of the court. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=321&invol=414)

Posted by: anonEmoose | May 5, 2005 1:24:40 PM

actually, there will be no briefing--this question was not briefed in this case and the order does not contemplate briefing--it was issued a week before oral argument and it asks only for each party to be prepared to indicate its position at oral argument

Posted by: ward | May 5, 2005 2:53:09 PM

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