- applies to the Supreme Court; and
- is Constitutional at all.
We find it unnecessary to reach either of these arguments. Ordinary principles of statutory construction suffice to rebut the Government’s theory—at least insofar as this case, which was pending at the time the DTA was enacted, is concerned.The majority finds that the DTA's repeal of jurisdiction has no effect on cases which were pending at the time it was passed, thereby kicking both cans down the road (assuming any more cases are allowed to make it this far in the future).
In the dissent, Scalia opens with an emphatic argument against the majority's finding that the DTA's habeas provision doesn't apply to cases already pending, prefacing a list of citations with the assertion that (on page 104):
An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.Stevens acknowledges Scalia's argument, but counters (on page 20) that:
[ . . . ] unlike other intervening changes in the law, a jurisdiction-conferring or jurisdiction-stripping statute usually "takes away no substantive right but simply changes the tribunal that is to hear the case."In other words, Stevens seems to be arguing that Scalia's precedents apply to transfers of jurisdiction, as from one court to another, while the DTA simply denies a class of individuals the right of access to any courts at all, and must therefore be examined separately from simple reassignments of jurisdiction. In footnotes, Stevens also takes issue with the applicability of Scalia's citations, saying essentially "I do not think they mean what you think they mean."
The core of Scalia's dissent on this issue is probably best presented (in a footnote on page 107) this way:
An effective-date provision does not render a statute applicable to "conduct that occurred at an earlier date," but of course it renders the statute applicable to conduct that occurs on the effective date and all future dates—such as the Court's exercise of jurisdiction here.This is a reasonably persuasive argument, but I'm just not interested enough to fully explore this issue, or the other arguments over DTA (yeah, there are more). There's an awful lot of legalese and many cases being cited, and the arguments are so convoluted that I'm not afraid to admit I'm out of my depth on this point. (And, as I said, this entire temporal-jurisdictional-metaphysical issue is being examined instead of the more fundamental arguments raised by Hamdan's counsel, so it amounts to very little in the long run, unless it turns out that the Court never has another opportunity to rule on the larger Constitutional issues of detention without habeas, which hardly seems likely.)
As an aside, it's tangentially noteworthy that Scalia, in the process of discussing the merits of statements on the Senate floor as indications of legislative intent, makes this statement (on page 114):