As the issues were framed in Hamdan, the Court had the following options:
1. The Court could have refused to decide the merits on one of several possible grounds. (Justices Scalia, Thomas, and Alito favored this course.)
2. The Court could have said that the relevant statutory provisions and the Geneva Conventions, properly interpreted, authorized the President to try Hamdan in a military commission (and that such trials were constitutionally acceptable). (Justices Scalia, Thomas, and Alito accepted this proposition too.)
3. The Court could have said that the relevant statutory provisions, and the Geneva Conventions, properly interpreted, prohibited such trials -- and that the prohibition of such trials did not unconstitutionally invade the President's power as Commander-in-Chief. (A majority of the Court accepted this proposition for the statutes; for the Geneva Conventions, there was a plurality vote of 4-3 in favor of this proposition, with Justice Kennedy declining to express his view.)
4. The Court could have interpreted the relevant provisions as in 2 above, not only on the basis of their texts, but also by reference to a kind of clear statement principle, requiring unambiguous congressional permission in order for the executive to use military commissions. (No justice explicitly suggested this route.)
5a. The Court could have interpreted the relevant provisions as in 3 above, not only on the basis of their texts, but also by reference to a kind of clear statement principle, saying that if statutes are not clear, the President, as Commander-in-Chief, is entitled to use military commissions. In other words, Congress must speak clearly if it wants to ban the President from using military commissions. (Justice Thomas' opinion, joined by Justice Scalia on this point but not by Justice Alito, veered toward this position without embracing it.)
5b. A variation on 5a: The Court could have said that according to standard principles of administrative law, the President is authorized to interpret the relevant sources of law, so long as his interpretation is reasonable. (Justice Thomas suggested an approach of this kind to the Geneva Conventions issue.)
6. The Court could have said that the President, as Commander-in-Chief, has the authority to create military commissions whatever Congress says. (No justice suggested this route.)
7. The Court could have said that because of constitutional limits, the President may not create and use this kind of military commission, even if Congress authorizes him to do so. (No justice suggested this route, though it is possible that a due process issue could arise with imaginable military commissions.)
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