Transcript Order vs. Freedom: Presidential War Powers File

The Courts:
A Constraint on Presidential power?
The Courts:
Order or Freedom:
where do you stand?
A constraint on presidential
power?
How have the courts served as a
check (or expansion) of
presidential power?
How expansive should the
president’s powers be during a
time of war?
Words for your overly textured pappap’s baboon chest and left ankle.
• Mandate - overwhelming support by the American people to support
an elected official (Reagan Map and Obama Poll #s)
• Amnesty - group pardon (“draft dodgers”)
• Impoundment - refusal by president to spend money congress has
already approved of (a way to starve programs – 1970 Nixon).
• State of the Union Address – Report required by the Constitution from
the president to congress.
• Prior Restraint – blocking the medias right to publish an article (illegal
unless under very special circumstances – N.Y. Times Co. v. United
State). If government classifies info as “top secret” then media can’t
touch or government can request a “stay” by the courts.
• Executive Privilege – Because of separation of powers, Congress
cannot force executive to give up information. President has a need for
secrecy (covert).
Deferential about war powers in wartime
• Prize cases - 1863
The court on the southern blockades
• Relevant Facts: President Lincoln declared a blockade of southern
ports in 1861. Pursuant to this blockade Union ships seized merchant
vessels and their cargoes of foreign neutrals and residents of the
southern states. The ships were condemned by federal ct. order.
• Issue: Does the president have the authority to institute a blockade of
southern ports and seize property?
• Procedure: The owners of the scuttled ships and seized cargo appealed
the federal ct. order directly to the S. Ct. Affirmed except as to certain
cargo which was bought before the outbreak of War.
• Law or Rule: Article 1 Section 8 Clause 11 - Congress shall have the
power to declare war.
• Plaintiff’s Argument: (Ship Owners) The President has no
Constitutional power to initiate or declare war on his own.
• Court’s Holding: Yes
• Court Rationale: By Acts of Congress the President is authorized to
call out the militia and use the military and naval forces to suppress
insurrection against the government of a state or the U.S. The
proclamation of the blockade is official and conclusive evidence to the
court that a state of war existed which demanded and authorized a
recourse to such a measure. The President was bound to meet the war
in the shape it presented itself, w/o waiting for Congress. After the
fact, Congress passed an Act “approving, legalizing, and making valid
all the acts, proclamations, and orders of the President as if they had
been issued and done under the previous express authority and
direction of the Congress.”
Deferential about war powers in wartime
• Prize cases
• Ex parte Milligan - 1866
Ex parte Milligan
• Facts: Milligan, not a resident of one of the rebellious states, or a
prisoner of war, but a citizen of Indiana for twenty years past and never
in the military or naval service, is, while at his home, arrested by the
military power of the United States, imprisoned, and, on certain
criminal charges preferred against him, tried, convicted, and sentenced
to be hanged by a military commission, organized under the direction
of the military commander of the military district of Indiana.
• Issue: Does the president have the authority to suspend the writ of
habeas corpus away from the main action of the war?
• Majority Reasoning: The Court decided that military rule
could not supersede the civil courts in areas where the civil
courts and government remained open and operational.
Indiana had been a loyal state, and its regular government
and courts had functioned throughout the war.
• Holding: No
Deferential about war powers in wartime
• Prize cases
• Ex parte Milligan
• US vs. Curtiss-Wright Export Corp. - 1936
US vs. Curtiss-Wright Export Corp.
Facts: Congress authorized the President to place an embargo
on arms shipments to countries at war in the Chaco region
of South America. When Curtiss-Wright Export Corp. was
indicted for violating the embargo through the sale of
bombers disguised as passenger planes to Bolivia, it
defended itself on the grounds that the embargo and the
proclamation were void because Congress had improperly
delegated legislative power to the executive branch by
leaving what was essentially a legislative determination to
the President's “unfettered discretion.”
Issue: Can the president interject himself into a case involving
principles of both governmental regulation of business and
the supremacy of the executive branch to conduct foreign
affairs.
Holding: Yes, the president has supremacy in foreign affairs
and national security.
Reasoning: Court upheld President's action against DF for
selling guns to Bolivia. US had joint resolution (President
and Congress) to ban arms sales to Bolivia and Paraguay.
Justice Sutherland said not only is national power over
external affairs complete in every respect and inherent, but
the President plays a unique role in foreign affairs (cannot
undermine the objectives set forth in the Constitution in
which the President makes treaties while conferring with
the Senate on such matters, but negotiates by themselves)
Deferential in wartime?
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Prize cases
Ex parte Milligan
US vs. Curtiss-Wright Export Corp.
Ex Parte Quirin - 1942
Ex Parte Quirin
• Facts: Eight Germans nationalists who had lived in the U.S.
returned to Germany between 1933 and 1941 for sabotage
training after the declaration of war between the United States
and the German Reich. After they secretly returned to the U.S.
in a submarine, two of the men turned themselves in to the F.B.I.
and exposed the others. F.D.R. the called a secret military
tribunal and that sentenced six of the eight to death.
• Issue: Does the president have the power to call secret military
tribunals and try “unlawful combatants”?
• Holding: Yes, the president can try unlawful combatants and No
the military tribunal does not have to afford the combatants all
Constitutional procedures and rights.
Deferential in wartime?
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Prize cases
Ex parte Milligan
US vs. Curtiss-Wright Export Corp.
Ex Parte Quirin
Korematsu - 1944
Korematsu v. United States
• Facts: Executive Order 9066 gave authority to exclude any
persons from areas on the west coast in order to insure
against sabotage. Under this authority, everyone of
Japanese ancestry was moved from their homes on the
West Coast to “relocation centers”.
• Procedural history: Korematsu was convicted in District
Court for remaining in California despite orders to leave.
Issue: Can the president relocate a specific race or group of
people?
Lawful vs. unlawful combatants
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Reasoning: All legal restrictions which restrict rights of a racial group are immediately
suspect. They are subject to the most rigid scrutiny. But, sometimes pressing public
necessity can justify the existence of such restrictions. Exclusion of people of Japanese
ancestry from the west coast when we are in a war with Japan has a definite and close
relationship to the prevention of sabotage.
Reasoning: “…the law of war draws a distinction between the armed forces and the
peaceful populations of belligerent nations and also between those who are lawful and
unlawful combatants. Lawful combatants are subject to capture and detention as
prisoners of war by opposing military forces. Unlawful combatants are likewise subject
to capture and detention, but in addition they are subject to trial and punishment by
military tribunals for acts which render their belligerency unlawful. The spy who
secretly and without uniform passes the military lines of a belligerent in time of war,
seeking to gather military information and communicate it to the enemy, or an enemy
combatant who without uniform comes secretly through the lines for the purpose of
waging war by destruction of life or property, are familiar examples of belligerents who
are generally deemed not to be entitled to the status of prisoners of war, but to be
offenders against the law of war subject to trial and punishment by military tribunals. “
• Holding: Yes he can.
Deferential in wartime?
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Prize cases
Ex parte Milligan
US vs. Curtiss-Wright Export Corp.
Ex Parte Quirin
Korematsu
Youngstown Sheet and Tube vs. Sawyer 1952
Youngstown Sheet and Tube vs.
Sawyer
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Facts: The country was at war with Korea. The war effort called for more
weapons, and they were made from steel. Steel industry demanded an increase
for all the extra work it was doing. In relation to some concerns from the
Senate, a 3-way dispute broke out between the steel union, the companies and
the Government, as the companies didn't want to spend extra monies for the
increase, and the Government resisted.
Union announces it was going to strike. President Truman didn't want to
invoke the Taft-Hartley Act of '47, the Selective Service Act of '48, or Title II
of the Defense Production Act of 1950, which all gave the executive branch
extensive authority to regulate wages, settle disputes and run the shops if it had
to. And that's what Truman did, as he authorized Sec. of Commerce Sawyer to
take possession of the steel industry and keep the mills operating to provide
goods for a national emergency. Arguments come to this Court.
Issue: Does the President of the United States have the executive power to
authorize the Secretary of Commerce to seize the nation's steel mills?
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Court's Rationale/Reasoning: Mills say this act should've been done by the
legislature. The Government says they were tying to avoid a national
crisis. There is no explicit statute or act (of Congress) which authorizes the
President to act in such a manner. The only 2 statutes which authorize
acquiring personal and real property are not met here. Not only are they
unauthorized, but Congress refused to act in such a manner to begin with.
Holding: No. Although the separation of powers is more blurred then definite
in scope and action, the President has no such explicit or implicit authority in
which to enact such action.
Deferential in wartime?
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Prize cases
Ex parte Milligan
US vs. Curtiss-Wright Export Corp.
Korematsu
Ex Parte Quirin
Youngstown Sheet and Tube vs. Sawyer
New York Times Co. vs. United States - 1971
New York Times Co. vs. United States
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Facts: In 1971, during rising tensions over the undeclared Vietnam War, the New York
Times attained top-secret articles based on the 1968 study, “History of U.S. Decision
Making Process on Viet Nam Policy.” The New York Times analyzed the articles for
several months, and on June 13, 1971, it began publication. After the third set of articles
was published, the Department of Justice sought an injunction to halt any further
publication. The next day, the United States obtained a restraining order prohibiting
further publication until June 19.
Issue: President Nixon had claimed executive authority to force the Times to suspend publication of
classified information in its possession. The question before the court was whether the constitutional
freedom of the press under the First Amendment was subordinate to a claimed Executive need to
maintain the secrecy of information.
• Majority Opinions: Justices Black and Douglas wrote joint
concurring opinions in which they condemned the government’s
actions, calling it a “flagrant, indefensible, and continuing violation of
the First Amendment.” Black and Douglas stated that the language of
the First Amendment is clear and supports the view that “the press
must be left free to publish news, whatever the source, without
censorship, injunctions or prior restraints.”
• Holding: No.
Deferential in wartime?
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Prize cases
Ex parte Milligan
US vs. Curtiss-Wright Export Corp.
Korematsu
Ex Parte Quirin
Youngstown Sheet and Tube vs. Sawyer
Hamdi vs. Rumsfeld - 2006
Hamdi v. Rumsfeld
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But neither can the President, in war more than in peace, intrude upon the
proper authority of Con- gress, nor Congress upon the proper authority of the
President... Congress cannot direct the conduct of campaigns, nor can the
President, or any commander under him, without the sanction of Congress,
institute tribunals for the trial and punishment of offences, either of soldiers or
civilians...
The Administration's arguments rested on Quirin, where the Supreme Court
"sanctioned" President Roosevelt’s use of "a tribunal to try Nazi saboteurs
captured on American soil during the War." However, "Guantanamo Bay is
neither enemy-occupied territory nor under martial law."
The Court points out that the charges against Hamdan cover the period of 1996
to November 2001, noting (emphasis added):
All but two months of that more than 5-year-long period preceded the attacks
of September 11, 2001.
Have the courts appropriately
checked presidential power?
Order vs. Freedom: where do you
stand?