BTD asks that question in response to the latest blink on an issue from the Obama administration to GOP bleating about terror suspects and the Constitution.
The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights [. . .] Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.
BTD proposes as a question to nominee Elana Kagan whether Congress can "restrict fundamental Constitutional rights by mere passage of a statute?" Whether or not Kagan is asked (or answers) the question, Orrin Kerr weighs in:
As a legal matter, I find this idea puzzling. Neither Miranda nor the Quarles public safety exception to it are statutory. Rather, they are constitutional decisions that the Supreme Court has adopted. And the Supreme Court has been pretty clear that Miranda doctrine is up to the Justices, not Congress: As the Court put it in Dickerson v. United States, 530 U.S. 428 (2000), “Miranda announced a constitutional rule that Congress may not supersede legislatively.”
Now, perhaps the courts would broaden the public safety exception to Miranda in terrorism cases if the Administration made the case for it. Indeed, I think it’s quite likely that today’s Supreme Court would be willing to adopt as a matter of constitutional law pretty much what the Administration wants as a matter of policy without any legislation. There just needs to be a case, and DOJ needs to make the argument. But I don’t really see why the Justices would care about a statute in this area if one were passed. I don’t see it relevant as a formal legal matter. And just from the standpoint of predicting votes, I don’t think it would impact how any of the Justices would vote. [emphasis mine]
Holder, and for that matter President Obama, should know as well as anyone that Congress can't change Miranda doctrine, leading to the conclusion that this proposal is more political than policy-oriented. Up until this weekend, Holder and the administration had been effectively pushing back against the GOP and Lieberman fear-mongering over Miranda and the effectiveness of the administration's prosecution of terror cases. Once again the administration blinks in the face of the GOP's lies, much as it did on death panels, "illegals" getting insurance in the health insurance reform plan, and "tax-payer funded permanent bailouts." It undermines the administration's arguments and gives the Republicans even more incentive to make outrageous claims. But in this case, it really doesn't make sense.
Jesselyn Radack's has more in her diary.