                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ANDREW CORTEZ CRATER,                       No. 05-17027
            Petitioner-Appellant,              D.C. No.
              v.                            CV-01-01893-
GEORGE M. GALAZA,                            MCE/GGH
                                            Eastern District
           Respondent-Appellee.
                                             of California,
                                              Sacramento

                                               ORDER

                  Filed December 6, 2007

   Before: Melvin Brunetti, Diarmuid F. O’Scannlain, and
             Stephen S. Trott, Circuit Judges.

                           Order;
                 Dissent by Judge Reinhardt


                          ORDER

   The panel has voted to deny the petition for rehearing and
the petition for rehearing en banc. The full court has been
advised of the petition for rehearing en banc. A judge of the
court requested a vote on whether to rehear the case en banc.
However, the en banc call failed to receive a majority of votes
of the nonrecused active judges in favor of en banc consider-
ation. Fed. R. App. P. 35.

  The petitions for rehearing and rehearing en banc are
denied.


                            15995
15996                      CRATER v. GALAZA
REINHARDT, Circuit Judge, with whom Circuit Judges
PREGERSON, GOULD, PAEZ, and BERZON join, dissent-
ing from the denial of rehearing en banc:

   I would hold that section 104 of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”),1 Pub. L. No. 104-
132, 110 Stat. 1214 (codified in relevant part at 28 U.S.C.
§ 2254(d)(1)), violates the separation of powers doctrine and
is unconstitutional. Section 2254(d)(1) constitutes a severe
congressional incursion on the federal “judicial power,”
which Article III of the Constitution vests wholly and exclu-
sively in the federal courts. It does so in two principal ways:
first, by prohibiting the federal courts from applying the ordi-
nary principles of stare decisis in deciding habeas cases
involving prisoners held in state custody, thereby interfering
with the federal courts’ normal adjudicatory process; and sec-
ond, by requiring federal courts to give effect to incorrect
state rulings that, in the federal courts’ independent judgment,
violate the Constitution. Such a congressional breach of the
federal judiciary’s integrity and independence, of its duty to
maintain the supremacy of the Constitution, and, indeed, of
the constitutional structure itself, should not go unchecked by
this court. For this reason, and because I believe that this is
the type of case an en banc court should hear,2 I dissent from
  1
     The statute’s imposing title is somewhat of a misnomer. The provision
held constitutional by the panel—section 2254(d)(1), the centerpiece of
the statute’s modification of federal habeas practice—has nothing to do
with antiterrorism and little to do with the death penalty. Rather,
§ 2254(d)(1) restricts the rights of all habeas petitioners detained in state
custody, including those, as in this case, who have neither been sentenced
to death nor convicted of an act of terrorism. The title was, however, polit-
ically appealing in the wake of the bombing of the Oklahoma federal
building, on which event President Clinton relied as justification for the
bill of which § 2254(d)(1) was a part. President Clinton’s Statement on
Antiterrorism Bill Signing, 1996 WL 203049, *1 (Apr. 26, 1996).
   2
     See Fed. R. App. P. 35(a)(2) (stating that an en banc rehearing is war-
ranted if “the proceeding involves a question of exceptional importance”).
                           CRATER v. GALAZA                         15997
the court’s unfortunate decision to let the panel decision
become the law of the circuit.3

                                    I.

   Section 2254(d)(1) prescribes an unconstitutional standard
of review for federal courts’ adjudication of habeas petitions
alleging that the petitioner’s state custody is “in violation of
the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). It provides:

     (d) An application for a writ of habeas corpus on
     behalf of a person in custody pursuant to the judg-
     ment of a State court shall not be granted with
     respect to any claim that was adjudicated on the mer-
     its in State court proceedings unless the adjudication
     of the claim—

           (1) resulted in a decision that was contrary
           to, or involved an unreasonable application
           of, clearly established Federal law, as deter-
           mined by the Supreme Court of the United
           States;

§ 2254(d)(1).

   The statute departs from pre-AEDPA habeas jurisprudence
   3
     The Supreme Court “has not squarely addressed [§ 2254(d)(1)]’s con-
stitutional validity.” Crater v. Galaza, 491 F.3d 1119, 1129 (9th Cir.
2007); see also Randy Hertz & James S. Liebman, Federal Habeas Corpus
Practice and Procedure § 32.5 (5th ed. 2001) [hereinafter “Hertz & Lieb-
man”] (noting that the issue of § 2254(d)(1)’s constitutionality “was pres-
ented in the certiorari petition in Williams v. Taylor, but the Supreme
Court denied certiorari on that question, and neither of the two majority
opinions addressed it”) (footnotes omitted). Four Justices, however, have
recognized the constitutional problems with the provision and would inter-
pret it in a manner that avoids those problems. See Williams v. Taylor, 529
U.S. 362, 375-79, 386-87 (2000) (Stevens, J., concurring).
15998                       CRATER v. GALAZA
in two key ways. First, whereas previously federal courts
could rely on the jurisprudence of the courts of appeals to
determine whether the state court decision was in violation of
federal law, after AEDPA they are limited to clearly estab-
lished law “as determined by the Supreme Court.” Id.; see
Williams v. Taylor, 529 U.S. 362, 412 (2000) (“[Section]
2254(d)(1) restricts the source of clearly established law to
this Court’s jurisprudence.”).4 Second, federal courts may no
longer grant habeas petitioners relief in cases in which the
state court judgment clearly violated federal law unless the
state court’s erroneous ruling was also “objectively unreason-
able.” Williams, 529 U.S. at 409; see also id. at 410 (“[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.”) (emphasis in original);
id. at 411 (noting that, prior to AEDPA, “a state court’s incor-
rect legal determination ha[d] [never] been allowed to stand
because it was reasonable. We have always held that federal
courts, even on habeas, have an independent obligation to say
what the law is.” (quoting Wright v. West, 505 U.S. 277, 305
(1992) (O’Connor, J., concurring))) (emphasis and alteration
in original) (internal quotation marks omitted). These changes
  4
    Moreover, in addition to the requirement on the face of the statute that
the law be clearly established “by the Supreme Court,” the Court has con-
strued AEDPA as departing from its previous jurisprudence on this point
in two other ways. First, whereas under Teague v. Lane, 489 U.S. 288
(1989), a constitutional principle was considered “old” (i.e., clearly estab-
lished) if it was recognized prior to the petitioner exhausting his direct
appeals, under AEDPA a principle is clearly established only if it was rec-
ognized by the Supreme Court at the time of the petitioner’s conviction.
See Williams, 529 U.S. at 412; see also Hertz & Liebman, supra note 3,
§ 32.3. Second, the Court has interpreted the “clearly established” clause
as referring “to the holdings, as opposed to the dicta,” of its decisions. Wil-
liams, 529 U.S. at 412. “In this respect, the ‘clearly established Federal
law’ phrase bears only a slight connection to [the Court’s] Teague juris-
prudence.” Id. Oddly, the following sentence of Justice O’Connor’s opin-
ion appears to contradict or at least raise questions as to the
pronouncement just quoted. Whatever the rule may be, however, it
appears that § 2254(d)(1) significantly narrows the Court’s previous stan-
dard.
                       CRATER v. GALAZA                    15999
impose a severe restriction on habeas petitioners’ ability to
secure federal relief from state detention that violates the
Constitution. More important for our purposes, they represent
a fundamental breach of the separation of powers—an uncon-
stitutional intrusion by Congress into the federal judiciary’s
independent and exclusive duty to “say what the law is.” Mar-
bury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

                               II.

   “[T]he doctrine of separation of powers . . . is at the heart
of our Constitution.” Buckley v. Valeo, 424 U.S. 1, 119
(1976). The Framers considered the division of governmental
power into separate departments “a vital check against tyran-
ny,” id. at 121, a “self-executing safeguard against the
encroachment or aggrandizement of one branch at the expense
of the other,” id. at 122. While the Constitution contains
checks and balances to temper all three branches, the Framers
were particularly wary of the tendency of the legislature to
usurp the other branches’ power—especially that of the judi-
ciary. See Met. Wash. Airports Auth. v. Citizens for the Abate-
ment of Aircraft Noise, Inc., 501 U.S. 252, 273-74 (1991)
(“[I]t is against the enterprising ambition of this department,
that the people ought to indulge all their jealousy and exhaust
all their precautions . . . . Its constitutional powers being at
once more extensive and less susceptible of precise limits, it
can with the greater facility, mask under complicated and
indirect measures, the encroachments which it makes on the
co-ordinate departments.” (quoting The Federalist No. 48, at
332-34 (J. Cooke ed. 1961)) (internal quotation mark omitted;
alteration in original); see also Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 221 (1995) (“Th[e] sense of a sharp neces-
sity to separate the legislative from the judicial power[ ] . . .
triumphed among the Framers of the new Federal Constitu-
tion.”). As such, the Constitution vests “the judicial power”
fully and unconditionally in the judicial department. U.S.
Const. Art. III § 1.
16000                       CRATER v. GALAZA
   Over the course of our nation’s history, the Supreme Court
has developed the contours of this “judicial power,” setting
the boundaries between Congress and the judiciary essential
to maintaining Article III’s “vital check against tyranny.” In
Marbury v. Madison, the Court forcefully described the pri-
mary function of the federal judiciary: “It is emphatically the
province and duty of the judicial department to say what the
law is.” 5 U.S. (1 Cranch) at 177 (emphasis added). That is,
the federal courts are charged with interpreting the Constitu-
tion and ensuring that the statutory law is consistent with it—
a determination that is, in the words of Chief Justice John
Marshall, the “very essence of judicial duty.” Id. at 178.

   Because the duty to “say what the law is” is vested entirely
and exclusively in the judicial branch, the Court has made
plain that Congress may not interfere with the federal courts’
independent process of adjudication and interpretation.5 In
United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), the
Court struck down a federal statute that required it to interpret
   5
     Article III does not, of course, prohibit the federal courts themselves
from developing rules governing the manner in which they interpret law
and adjudicate cases. The Supreme Court can, and has, prescribed rules
binding federal courts to a particular method of decisionmaking. See, e.g.,
Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (holding that, in determining
whether a state officer is entitled to qualified immunity for § 1983 pur-
poses, courts may not consider whether the constitutional right was clearly
established before determining first that a constitutional right was vio-
lated). This right of the federal courts to make rules governing their adju-
dicatory process is subject to one limitation: the courts may not restrict the
exercise of the “judicial power” so greatly that they effectively abdicate
their own jurisdiction. See New Orleans Pub. Serv., Inc. v. Council of the
City of New Orleans, 491 U.S. 350, 358 (1989) (“[T]he courts of the
United States are bound to proceed to judgment and to afford redress to
suitors before them in every case to which their jurisdiction extends. They
cannot abdicate their authority or duty in any case in favor of another
jurisdiction.” (quoting Chicot County v. Sherwood, 148 U.S. 529, 534
(1893) (citations and internal quotation marks omitted))); Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (not-
ing that the federal courts have a “virtually unflagging obligation . . . to
exercise the jurisdiction given them”).
                       CRATER v. GALAZA                    16001
a presidential pardon as conclusive evidence that the claimant
had aided the South during the Civil War and was therefore
not entitled to recover for property confiscated by the govern-
ment during that war. The Court held that this statute “passed
the limit which separates the legislative from the judicial
power,” id. at 147, by prescribing a “rule of decision,” id. at
146, which limited the Court’s independent adjudication. In
doing so, the Court acknowledged that Congress could have
denied it jurisdiction over the appeal entirely, pursuant to its
authority to make “exceptions” and “regulations” to the
Court’s appellate jurisdiction. Id. at 145; see also U.S. Const.
Art. III § 2. Once it had granted jurisdiction, however, Con-
gress could not then dictate to the Court how to exercise its
“judicial power.” Klein, 80 U.S. (13 Wall.) at 147.

   This crucial distinction—between withholding jurisdiction
altogether and granting jurisdiction but restricting its full and
independent exercise—has been reiterated time and again
since Klein. See, e.g., Gutierrez de Martinez v. Lamagno, 515
U.S. 417, 430 (1995) (“Congress may be free to establish a
compensation scheme that operates without court participa-
tion. . . . But that is a matter quite different from instructing
a court automatically to enter a judgment pursuant to a deci-
sion the court has no authority to evaluate.”); Yakus v. United
States, 321 U.S. 414, 468 (1944) (Rutledge, J., dissenting) (“It
is one thing for Congress to withhold jurisdiction. It is
entirely another to confer it and direct that it be exercised in
a manner inconsistent with constitutional requirements . . . .
[W]henever the judicial power is called into play, it is respon-
sible directly to the fundamental law and no other authority
can intervene to force or authorize the judicial body to disre-
gard it.”); Henry P. Monaghan, Marbury and the Administra-
tive State, 83 Colum. L. Rev. 1, 11 (1983) (“There is no half-
way position in constitutional cases; so long as it is directed
to decide the case, an Article III court cannot be ‘jurisdiction-
ally’ shut off from full consideration of the substantive consti-
tutional issues . . . .”). Professors James Liebman and William
Ryan have described the distinction as one between the
16002                 CRATER v. GALAZA
“quantitative” power to confer jurisdiction and the “qualita-
tive” power to determine how courts may exercise the “judi-
cial power.” James S. Liebman & William F. Ryan, “Some
Effectual Power”: The Quantity and Quality of Decisionmak-
ing that Article III and the Supremacy Clause Demand of the
Federal Courts, 98 Colum. L. Rev. 696, 773-75 (1998). The
Court has consistently permitted Congress to exercise its
quantitative power over the federal courts’ jurisdiction,
including in the habeas context. See, e.g., Felker v. Turpin,
518 U.S. 651, 664 (1996) (upholding AEDPA’s provision
restricting the ability of federal courts on habeas to consider
successive petitions). It has never, however, allowed Congress
to tinker with the qualitative aspects of the adjudicative pro-
cess. See Wright, 505 U.S. at 305 (O’Connor, J., concurring)
(“[A] state court’s incorrect legal determination has [n]ever
been allowed to stand because it was reasonable. We have
always held that federal courts, even on habeas, have an inde-
pendent obligation to say what the law is.”).

   A necessary implication of the constitutional prohibition on
congressional tinkering with the manner of judicial decision-
making is that Congress may not eliminate wholesale any tool
of judicial reasoning from the judicial toolbox. Courts in com-
mon law systems have developed a panoply of tools to guide
them in the interpretive process, among them inferring rules
from text or structure, reasoning from analogy, and applying
rules from precedent. Cf. Philip Bobbitt, Constitutional Inter-
pretation 12-22 (1991). No one tool takes precedence in any
situation, and in any given case several of the tools may work
in tension with one another. A critical aspect of judicial rea-
soning is thus determining which tool most appropriately gov-
erns a particular case—in other words, which tool affords the
most effective process of judicial analysis. Such a determina-
tion is inherently bound up with the power to “say what the
law is” and cannot, therefore, be assumed by any person or
institution outside Article III.
                           CRATER v. GALAZA                          16003
   One tool in the judicial toolbox—stare decisis—bears par-
ticular Article III significance. The Supreme Court has held
that Congress may neither require federal courts to reopen
final judgments, Plaut, 514 U.S. 211, nor substitute its own
interpretation of a constitutional right for that already articu-
lated by the Supreme Court, City of Boerne v. Flores, 521
U.S. 507 (1997). These cases together “suggest a vision of
Article III courts that requires Congress not only to leave their
final judgments intact, but also to treat (and allow other
courts to treat) their decisions as having ordinary stare deci-
sis effect.” Vicki Jackson, Introduction: Congressional Con-
trol of Jurisdiction and the Future of the Federal Courts—
Opposition, Agreement, and Hierarchy, 86 Geo. L. J. 2445,
2469-70 (1998) (emphasis added). The central importance of
stare decisis to the Article III “judicial power” is well-
founded; as the Supreme Court has explained, stare decisis is
“the means by which we ensure that the law will not merely
change erratically, but will develop in a principled and intelli-
gible fashion,” a process that “permits society to presume that
bedrock principles are founded in the law rather than in the
proclivities of individuals, and thereby contributes to the
integrity of our constitutional system of government, both in
appearance and in fact.” Vasquez v. Hillary, 474 U.S. 254,
265-66 (1986). Because the “Court’s power lies . . . in its
legitimacy,” Planned Parenthood of S. Pa. v. Casey, 505 U.S.
833, 865 (1992), the legitimating function of stare decisis
makes it an especially critical tool of judicial reasoning, war-
ranting even greater insulation from congressional control.6
  6
    The Crater panel quotes Casey for the proposition that “the rule of
stare decisis is not an ‘inexorable command,’ and certainly it is not such
in every constitutional case.” Crater, 491 F.3d at 1126 n.8 (quoting Casey,
505 U.S. at 854) (internal quotation marks omitted). The panel’s reliance
on Casey is fundamentally misguided. It is one thing to say, as Casey
does, that federal courts need not apply stare decisis under every circum-
stance. This statement is consistent with, and is indeed a natural inference
from, the principle, described above, that a necessary aspect of judicial
reasoning is determining which adjudicative tool is most appropriate in a
particular case. It is quite another thing, however, to say that Congress
16004                       CRATER v. GALAZA
   In addition to prescribing the federal courts’ exclusive and
independent authority to “say what the law is,” Marbury
established another fundamental function of the Article III
“judicial power”: the duty to maintain the supremacy of fed-
eral law and, above all, the Constitution. See Liebman &
Ryan, supra, at 770-71. In Marbury, the Court was asked to
apply a federal statute that it believed, in its independent judg-
ment, violated the Constitution—it gave the Court original
jurisdiction over a class of cases not among those explicitly
enumerated in Article III. In holding the statute unconstitu-
tional, Chief Justice Marshall made absolutely plain that the
courts may not be forced to give effect to a law that conflicts
with the Constitution. He queried, “If an act of the legislature,
repugnant to the constitution, is void, does it, notwithstanding
its invalidity, bind the courts, and oblige them to give it
effect?” Marbury, 5 U.S. (1 Cranch) at 177. Marshall’s
answer could not have been clearer—to require the federal
courts to give effect to an unconstitutional law would be “an
absurdity too gross to be insisted on.” Id.

   The Court extended this supremacy-maintaining principle
to the federal courts’ review of state court decisions in Martin
v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), and
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). The Court
explained in those cases that, although the Constitution itself
did not grant the Supreme Court appellate jurisdiction over
state court proceedings, once Congress had done so via the
Judiciary Act of 1789, the Court had the authority and the
responsibility to ensure that state court rulings conformed to
the dictates of the Constitution. Once a federal court was
charged with reviewing state court judgments, it could not,

may prohibit the application of the ordinary rules of stare decisis in all
federal habeas cases. Such a statement cannot be reconciled with the con-
stitutional requirement, elaborated in Marbury, that Article III courts
remain free to use the full panoply of judicial tools to arrive at an indepen-
dent adjudication of each case in which they are granted jurisdiction.
                       CRATER v. GALAZA                    16005
consistent with its duty to maintain the supremacy of the Con-
stitution, uphold state court rulings that it concluded violated
that supreme law. The federal courts’ duty to “say what the
law is,” in other words, entailed a corresponding duty not to
effectuate any law, whether made by Congress or by state
courts, that ran counter to their own independent interpreta-
tion of the Constitution’s strictures.

   In sum, the essential functions of the Article III “judicial
power,” as delineated by the Supreme Court over the past two
centuries, are as follows: (1) The federal judiciary has the ulti-
mate authority to interpret the Constitution. (2) Congress need
not grant the federal courts jurisdiction over any particular
class of cases, but once it has done so, it cannot interfere with
the manner in which the federal courts interpret law and
decide cases. (3) The federal judiciary is duty-bound to main-
tain the supremacy of the Constitution, and thus a federal
court cannot be required to give effect to any law—be it a fed-
eral statute or a state court decision—that, in the court’s inde-
pendent judgment, violates the Constitution.

                               III.

   Section 2254(d)(1) violates these fundamental attributes of
the “judicial power,” granted exclusively to the federal judi-
ciary in Article III, in two principal ways. First, in dictating
that federal courts may grant habeas relief only in cases in
which the state proceeding violated clearly established law
“as determined by the Supreme Court,” § 2254(d)(1) pre-
scribes a “rule of decision”—i.e., a limitation on the federal
courts’ independent adjudicatory process—akin to the statute
invalidated in Klein. The rule of decision prescribed in
AEDPA, however, is more egregious than that of Klein
because it effectively suspends the ordinary doctrine of stare
decisis in the federal courts’ adjudication of habeas cases.
Second, § 2254(d)(1) violates Article III by requiring federal
courts to defer to, and thereby give effect to, decisions of state
courts that the federal courts interpret as violating the Consti-
16006                      CRATER v. GALAZA
tution. Both congressionally imposed rules pose a serious
threat to the integrity of our nation’s separation of powers;
neither can be tolerated.

                                    A.

   Section 2254(d)(1)’s restriction of habeas relief only to
prisoners whose state proceedings violated clearly established
law that was “determined by the Supreme Court” prevents
federal courts from exercising their independent judgment to
“say what the law is.” It is, for that reason alone, unconstitu-
tional. Congress might be able, if it so chose, to deny at least
the lower federal courts jurisdiction over habeas corpus cases
arising from state convictions. U.S. Const. Art. III § 2; but see
Jordan Steiker, Incorporating the Suspension Clause: Is There
a Constitutional Right to Federal Habeas Corpus for State
Prisoners?, 92 Mich. L. Rev. 862, 911 (1994) (arguing that
“the Suspension Clause, viewed through the lens of the Four-
teenth Amendment, affords state prisoners a constitutional
right to federal review of constitutional claims in the lower
federal courts”). Once it has granted such jurisdiction,
however—as it has via § 2254(a)—Congress may not, consis-
tent with the constitutional separation of powers, dictate to the
federal courts how to adjudicate those cases. Section
2254(d)(1) does exactly that by requiring federal courts to
ignore not only the precedent of other circuits, which may be
persuasive to the case at hand, but also the normally binding
precedent of their own circuits in determining whether a
habeas petitioner is “in custody in violation of the Constitu-
tion or laws or treaties of the United States.” § 2254(a). In
other words, § 2254(d)(1) prohibits the application of the nor-
mal rules of stare decisis, a central tool of judicial decision-
making, by federal courts exercising habeas jurisdiction.7
  7
    I do not comment on the right of the federal courts themselves, and
particularly the Supreme Court, to modify the rules of stare decisis. That
is an entirely different matter that is in no way affected by the separation
of powers principle we are considering here.
                            CRATER v. GALAZA                           16007
   Not only does this suspension of the usual principles of
stare decisis violate the clear dictate of Marbury and Klein
that Congress not tinker with the qualitative aspects of Article
III adjudication, it turns the notion of judicial hierarchy on its
head. Under § 2254(d)(1), federal district courts are required
to ignore the clear and binding precedents of the circuit courts
above them if those precedents have not also been clearly
established by the Supreme Court. This is true even where the
circuit precedent is longstanding, and even where every other
circuit has established the identical interpretation of the con-
stitutional principle. Such a situation demonstrates the practi-
cal absurdity of § 2254(d)(1)’s limitation of precedent to
Supreme Court holdings. The Supreme Court’s appellate
review is discretionary; its purpose is to clarify the law and
to resolve conflicts among the circuit courts. Therefore, the
Supreme Court is unlikely to grant review to establish a con-
stitutional principle that is already firmly ingrained, or upon
which the lower courts agree. The perverse result is that some
of the most universal constitutional principles might never
become “clearly established law, as determined by the
Supreme Court,” and thus their violations may never warrant
habeas relief under § 2254(d)(1).8 Congress’s grant of habeas
jurisdiction to the federal courts in such cases is nothing but
a hollow promise.

                                      B.

   Section 2254(d)(1) violates Article III yet further by requir-
ing the federal courts to give effect to state court rulings that
in the federal courts’ independent judgment violate the Con-
stitution. It does so in two ways. First, as explained above, a
  8
    Moreover, even if the Court were to refer to such longstanding, univer-
sal constitutional principles in an opinion, a mere reference would not con-
stitute “clearly established law” under AEDPA. The Court has made clear
that this term refers only to the holdings, and not to the dicta, of the Court.
See Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams, 529 U.S. at
412.
16008                  CRATER v. GALAZA
federal court may not grant habeas relief under AEDPA
unless the Supreme Court has clearly articulated the govern-
ing constitutional rule. Thus, a federal court is required under
AEDPA to uphold a state court proceeding that it determines
violated the Constitution if that determination is based upon
circuit, and not Supreme Court, precedent.

   Second, even where the federal court’s determination of a
constitutional violation is based upon clearly established
Supreme Court precedent, the court is required, nevertheless,
to uphold the state court’s unlawful action if the state court’s
ruling was an “objectively reasonable” application of the
Supreme Court’s constitutional interpretation. In other words,
federal courts must give effect to state courts’ incorrect appli-
cations of federal constitutional law, as long as those applica-
tions are not “objectively unreasonable,” in other words, if a
state court judge could reasonably have made the constitu-
tional error. This mandate, which directs the federal courts to
ignore constitutional violations simply because a reasonable
state court judge could have reached the erroneous conclusion
involved, flies in the face of Marbury and later cases estab-
lishing the federal courts’ crucial duty to maintain the
supremacy of the Constitution above all other law.

                               IV.

   The Crater panel attempts to sidestep these arguments by
characterizing § 2254(d)(1) as merely a “choice of law rule,”
Crater, 491 F.3d at 1127 (quoting Green v. French, 143 F.3d
865, 874 (4th Cir. 1998), cert. denied 525 U.S. 1090 (1999),
overruled on other grounds by Williams, 529 U.S. 362),
which “does not restrict the federal courts’ power to interpret
the law, but only sets standards for what state court errors of
law require federal habeas relief,” Crater, 491 F.3d at 1128.
Certainly it is within Congress’s power to restrict the federal
courts’ ability to grant relief, the panel reasons; such a provi-
sion is no different from, say, a statute of limitations or a rule
of procedure—one of Congress’s undisputed “quantitative”
                        CRATER v. GALAZA                    16009
controls over habeas jurisdiction. This reframing of
§ 2254(d)(1)—as affecting merely the court’s ability to grant
a remedy, and not its power to determine the underlying right
—is the reddest of herrings. The panel’s characterization mis-
apprehends the very nature of the writ of habeas corpus, the
right to which is inextricably bound with—indeed, synony-
mous with—its remedy.

   When an individual in state custody seeks a writ of habeas
corpus, the essence of his claim is not only that his constitu-
tional (or other federal) rights have been violated. It is that his
custody is in violation of those rights. See § 2254(a); Preiser
v. Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he essence of
habeas corpus is an attack by a person in custody upon the
legality of that custody . . . .”). The Supreme Court has
unequivocally recognized the significance of this fact in hold-
ing that “when a state prisoner is challenging the very fact or
duration of his physical imprisonment,” he may not bring his
challenge under 28 U.S.C. § 1983, the statute that provides a
cause of action for constitutional violations, but instead must
file a petition for habeas corpus. Preiser, 411 U.S. at 500.
Moreover, the Court has made clear that this distinction is not
based on the remedy sought. Thus, even when the prisoner
seeks only damages for his constitutional violations, and not
release from prison, he nevertheless may not bring the claim
under § 1983 if a judgment in his favor “would necessarily
imply the invalidity of his conviction or sentence.” Heck v.
Humphrey, 512 U.S. 477, 487 (1994).

   The right at issue in habeas cases, in other words, is not the
same right as that at issue in § 1983 cases. In § 1983 cases,
it is the constitutional right itself that forms the basis of the
claim. In habeas cases, in contrast, it is the right not to be held
in custody in violation of the Constitution that lies at the core
of the suit. This is no mere difference in semantics. Where a
petitioner asserts the violation of a constitutional right—
indeed, even one so fundamental as the right to be free from
unreasonable searches and seizures—but the violation did not
16010                       CRATER v. GALAZA
contribute to the custody of the petitioner, the Court has held
that such a claim is not cognizable on habeas. See Stone v.
Powell, 428 U.S. 465, 494 (1976) (holding that Fourth
Amendment claims are not cognizable on habeas review
because the Fourth Amendment exclusionary rule does not
relate to the accuracy of the fact-finding process). When the
custody itself is unlawful, however, the right to habeas
applies. The panel’s characterization of § 2254(d)(1) as noth-
ing but a “restriction on the scope of the habeas remedy,”
Crater, 491 F.3d at 1127 (quoting Green, 143 F.3d at 875),
is incorrect. Whereas a § 1983 suit challenges a past wrong—
the constitutional violation—a habeas petition challenges the
present detention that is based upon that past constitutional
violation. Thus, when Congress directs a federal court to deny
relief even when the court determines that the petitioner’s
custody violates the Constitution or another federal law, it
requires the federal court to be complicit in the ongoing viola-
tion of an individual’s right not to be “unlawfully subjected
to physical restraint.” Preiser, 411 U.S. at 486.9 Put differ-
  9
    For this reason, the argument that is often made (although not by the
Crater panel)—that § 2254(d)(1) is no different from Teague, in that both
prohibit the federal courts from remedying a clear constitutional violation
—is faulty on its face. Although Teague did prohibit federal courts from
granting habeas relief for newly recognized constitutional violations, the
justification most often offered for that result is that the Teague retroactiv-
ity rule did not require federal courts to be complicit in any ongoing viola-
tion of a habeas petitioner’s rights—because a petitioner’s custody is, by
definition, not “unlawful” if no constitutional rule was recognized when
that punishment was rendered. Section 2254(d)(1), on the other hand,
requires federal courts to give effect to state court judgments rendered in
violation of constitutional principles already established when the judg-
ments were handed down, unless those principles were established by the
Supreme Court and, even when they were, unless the state court’s applica-
tion of them, though incorrect, was “objectively reasonable.” In that way,
§ 2254(d)(1), unlike Teague, violates Marbury’s clear dictate that federal
courts, charged with maintaining the supremacy of the Constitution, must
not be required to give effect to laws—statutory or otherwise—that con-
flict with their independent interpretation of the Constitution’s mandates.
   Of course, there is another fundamental difference between
§ 2254(d)(1) and Teague. Teague is a judicial doctrine imposed on the
                           CRATER v. GALAZA                          16011
ently, § 2254(d)(1) mandates the “involuntary participation of
the federal judiciary” in the perpetuation of the breach of
habeas petitioners’ rights not to be detained in violation of the
Constitution. Lawrence G. Sager, Klein’s First Principle: A
Proposed Solution, 86 Geo. L. J. 2525, 2535 (1998). Separa-
tion of powers surely demands that Congress not so conscript
the Third Branch.

   Needless to say, § 2254(d)(1) is not, as the panel asserts, a
mere “choice of law rule.” Crater, 491 F.3d at 1127 (quoting
Green, 143 F.3d at 874). The law that Congress has “chosen”
is clear in the very fact of its grant of habeas jurisdiction to
the federal courts: the writ may be granted only to persons “in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a) (emphasis added).
AEDPA’s demand that federal courts disregard the full corpus
of constitutional jurisprudence—including both the prece-
dents normally binding on them through stare decisis and the
Constitution itself when the state courts got it wrong but their
error was not unreasonable—and give effect to state court
adjudications that, in the federal courts’ independent determi-
nation, violate the Constitution, makes a mockery of the care-
ful boundaries between Congress and the courts that our
Constitution’s Framers believed so essential to the prevention
of tyranny.

                                     V.

   It is our constitutional duty as Article III judges to “say
what the law is” and to maintain the supremacy of our found-
ing document. These duties demand that we declare AEDPA
to be what it is—an unconstitutional infringement on the “ju-

federal judiciary by the highest court. AEDPA, in contrast, is a congres-
sional mandate that dictates to the federal courts how to adjudicate cases
on habeas review. Whatever constraints Teague placed on the federal
courts are therefore of no relevance to the question of the constitutionality
of § 2254(d)(1).
16012                  CRATER v. GALAZA
dicial power,” which Article III grants entirely and exclu-
sively to the federal courts. Crater v. Galaza does not live up
to this fundamental responsibility and should not stand as this
court’s statement on AEDPA’s constitutionality. For this rea-
son, I respectfully dissent from this court’s denial of rehearing
en banc.
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