MORE PADILLA

For some useful Padilla-related commentary, see Brigid O'Neil's essay here (via Lawrence Solum), Phil Carter here, Eugene Volokh here, Nathan Newman here, TalkLeft here, Unlearned Hand here, and Eric Muller here. Former federal prosecutor Andrew McCarthy has a useful (but unnecessarily -- and distractingly -- cantankerous) essay at NRO here.

As I note below, I think that the court's decision can be defended in a deliberation-enhancing sense (as Cass Sunstein argues in his recent book Designing Democracy). This is a view that harmonizes well with Jackson's analysis of concurrent war powers authority in the Steel Seizure case, which the majority in the 2nd circuit panel relied on for much of its reasoning.

It's certainly not an indisputable point, but I doubt that the best interpretation of our constitutional traditions requires giving the President unfettered authority to declare someone an enemy combatant and then to detain that person without any judicial oversight whatsoever. That said, as a predictive matter, I would bet that the willingness of other branches of government -- not to mention commentators -- to acquiesce in such a presidential assertion of authority is highly dependent on context. It's no accident that Eric Muller draws on Korematsu and the drug war for his analogies, while McCarthy evokes the language of "mass murder" and a "shooting war."

But regardless of how you stand toward that issue, the 2nd circuit's decision can also be read as a defense of judicial integrity -- an unwillingness on the part of the judiciary to be complicit in (arguably) lawless and unfettered detentions of American citizens. It's understandable that the 2nd circuit didn't cite Justice Jackson's dissent in Korematsu, but perhaps it should have: if the court finds inherent presidential authority to detain, the "principle" will "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." Perhaps courts shouldn't go down that road. At the very least, it seems to me (contra McCarthy) that a court that doesn't want to go down that road isn't doing something inherently unreasonable. That's not to say that courts have often taken this route; they haven't, it seems to me. But perhaps they should.