Forcing Democracy

You have to hand it to the Supreme Court. Yes, the Hamdan decision this morning was a rebuke to the Bush administration, and Justice Breyer again invoked the lack of a “blank check” from congress after 9/11. And yes, the justices stated in no uncertain terms that treaties and statutes matter – and that they apply in the war on terror. That’s not a small victory for people who believe that the Bush administration has usurped more power than is constitutionally authorized to the president. But what the court has NOT done is tell the president he can never have his military tribunals. He can simply go to congress and ask for more authority, and if congress agrees to alter the Uniform Code of Military Justice, those military tribunals are still a possibility. Jack Balkin calls it a democracy-forcing decision. The president can’t decide on his own, and congress has always had the authority to regulate military justice – so the court is using the democratic process as a lever to enforce that power balance. 

So, the big question: Would congress pass such an alteration to the UCMJ allowing military tribunals for enemy combatants? Will the administration even pursue such a change before the midterms? How ugly will those campaigns be if this is an election issue?