Why al Bahlul is Rightly Decided

Over at Lawfare, I have a pair of longer posts following up on Friday’s quick-and-dirty summary of the D.C. Circuit’s ruling in al Bahlul v. United States, in which a divided panel held that the trial of “domestic” offenses by the Guantánamo military commissions violates Article III of the U.S. Constitution.

The first post, from Sunday, explains how the difference between Judge Rogers’ majority opinion and Judge Henderson’s dissent can largely be reduced to the difference between formalist and functionalist approaches to the separation of powers–and argues why the majority correctly resorted to formalism in this case.

The second post, from this morning, explains why, even following the more functional approach to the Article III question that the Supreme Court has only embraced in the context of non-Article III “public rights” adjudication (e.g., the Court of Federal Claims, the Tax Court, and administrative adjudication), the majority still reached the correct result, since proper application of the Court’s approach in those cases, contra Judge Henderson’s dissent, should have militated against non-Article III adjudication.

They’re both fairly lengthy posts, and may well induce somnolence. But I thought I’d flag them for interested readers who don’t regularly peruse Lawfare. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).