Per Professor Berman, I learned that the Ninth Circuit has ordered the advocates in a pending case to discuss "whether the AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this could should decline to apply the AEDPA standards in this case." I have a few tentative thoughts; with more to hopefully follow.
Habeas corpus is an individual right that protects a citizen from being held by state officials who obtained a conviction by violating the Constitution. Congress does not have the power to abolish habeas corpus except in extreme circumstances. Art. I, sec. 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.") Separate and apart from the right to petition for a writ of habeas corpus are natural law rights recognized under the Due Process Clause.
Granting a writ of habeas corpus and vindicating due process violations are judicial functions, given to the judiciary under Article III. Art. III, sec. 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.")
Currently, the Habeas Clause has been interpreted narrowly, so that the writ of habeas corpus is suspended only when it's literally denied. But current AEDPA procedures are a suspension-in-fact for many habeas claims. That is, citizens are denied their federal constitutional rights in state court, and thus are imprisoned (re: held in state custody) in violation of the Constitution. But unless the constitutional rights violations were "unreasonable," the imprisonment is sanctioned by Congress and the Supreme Court. Isn't this also a due process violation? Aren't one's due process rights violated when one is convicted in an unconstitutional proceeding?
We might ask by what right can Congress limit the constitutional rights of citizens? By what right can Congress prevent the lower federal courts from analyzing due process challenges? Certainly Congress can control the rules of procedure of the lower federal courts, but in doing so, Congress can't violate due process. Nor can it deprive "establish[ed]" "inferior Courts" of its judicial power, since once these courts are created, the "judicial power" "shall be vested." Once your 401(k) or pension vests, then it's yours; your employer can't take it from you. Neither can Congress deprive the courts of their judicial power. Perhaps Congress can destroy lower federal courts. But that is a different issue than whether Congress may deprive a co-equal branch of its vested powers.
Thus, perhaps the AEDPA is unconstitutional under the separation of powers doctrine because, in hamstringing the lower federal courts, it prevents them from vindicating due process violations; and, indeed, even prevents them from analyzing whether it should grant a writ of habeas corpus at all.
These thoughts are tentative, and perhaps make no sense at all. Please share your thoughts.