NATIONAL SECURITY LAW

** What constitutional authority is there for military detention of US citizens by Executive branchw/out judicial review?

  • Treason provision – Art.III, §3
  • Argument that this is exclusive Congressional domain
  • Only crime defined in Constitution, & they also tell you how to prove it
  • Reference to open court suggests that Const meant for fed courts to take these matters, not military courts
  • Commander in Chief power – Art.II, §2
  • Appears to suggest authority for detaining those captured in the battlefield
  • Art.I, §8
  • “tribunals inferior to the supreme court” could include military courts
  • Are terrorists analogous to pirates? Neither has a homeland…they both seem to be committing violations of law of nations.
  • Congress given deep authority & power over military. Doesn’t this suggest that detention, military courts are within Congressional authority as well?
  • Doesn’t President have some emergency powers? 9/11 – we were under attack.
  • Exec authority. Yet does Exec authority include emergency authority?
  • Art.IV, §4 – protect states against invasion. This appears to be express emergency authority.
  • Habeas corpus – right to contest the denial of liberty. Privilege can be suspended in limited circumstances – did 9/11 fall under these situations? Argument that it was a kind of invasion. Art.I, §9 – since it’s in Art.I, it seems that it would be under Congressional authority. Does this mean that the Pres can’t suspend it?
  • Does int’l law play a role? There is some that precludes arbitrary detention.
  • Anything in Const about public’s right to get info from gov’t on detainees?

Detention of combatants

  • 5th Am. – combatants not in our lands or militia can only be indicted by grand jury, doesn’t fall within the exception of the Am.
  • What about gov’t withholding info about detainees? Any constitutional authority here?
  • Art.I, §5 – express provision for keeping stuff secret by Congress.
  • What about Exec Branch? Art.II, §3 – giving info to Congress. Seems to give Pres discretion as to what he discloses. But it seems to impose duty to disclose on Congress, & discretion seems to be more on timing rather than content.

The Steel Seizure Case (p.31)

Truman ordered Sec of Commerce to take possession of steel mills. Wanted to make sure steel production continued as country was involved in Korean War. Statutes that gave Pres authority to dictate to industry what the army needed, as well as anti-inflationary measures to keep wages from exploding.

  • Exec order – when made pursuant to a statute, it is effectively equivalent to a statute. Or if it comes from inherent Constitutional authority, then order doesn’t have to be pursuant to a statute.
  • When made for nat’l security, they are not called exec orders. Given different names. More likely to fall under Pres’ inherent authority – Commander in Chief, etc. Also not vetted by DOJ as to its legality, not published in Federal Register.
  • Truman called this an exec order, sent it to Congress to accept/reject it. Congress didn’t act – fear over impending elections.
  • Why wasn’t seizure just an exercise of delegated statutory authority? Congress already refused to grant Pres authority to seize plants in an emergency (debate behind Taft-Hartley Act) b/c it would interfere w/ private bargaining b/w the parties. Congress held onto its own authority here. However, the Act was silent on the issue – otherwise it would have been a category 1 case according to Jackson.
  • Justice Black = Congress didn’t give Pres authority here. Pres cannot make law. Can’t combine lawmaking & law execution in 1 person = too much power. Formalistic approach  Pres can’t make law.
  • Yet it is a little overstated, b/c there are situations where a Pres can make law.
  • 3 sources of authority for Truman’s act here: Comm in Chief, emergency powers, exec power/take care.

Justice / Commander in Chief / Emergency powers / Exec power/take care
Black / Labor dispute in US not part of theater of war (34) / Rejects this – Congress hasn’t legislated, so Pres can’t act alone. / Nothing to take care of, b/c Congress must act (33)
Douglas / (38)
Frankfurter / War was not declared here, so CiC lacks authority to seize property at home. Implication is that if war was declared, Truman could’ve (37) / Seemed prepared to allow for unilateral seizure by Pres, as long as temporary + Congress could step in early (35) / There was no statute. There may be situations where consistent Exec practice that Congress was aware becomes custom, thus allowing Pres to act legally. Look to see whether there was historical acquiescence, even if Pres has no express authority (36)
Jackson / Not convinced that war was legal itself. Also see bottom of p.42 – within US, Pres should not get as much latitude here (41,2) / Congress has authority to delegate this power to Pres in advance. In those situations where they didn’t foresee, then Pres can act alone. Go through Congress, have them deliberate (the check on Pres), after which we can allow sweeping delegation to Pres (43) / (39)
Burton / Perhaps there is a diff b/w a total war & a more regional war like Korean War. Not rejecting CiC power altogether, however (45) / If situation is bad enough, then appears that Burton would also allow Pres such emergency authority (45) / 45
Clark / Depends on gravity of situation confronting nation – so there are some situations where Pres can act on his own. If Congress acts 1st, however, then it occupies the field & Pres must abide by their judgment (46)
V, R, +M / (47) / 2 statutes. Pres is often faced w/ inconsistent statutory command – therefore he might have to take unusual acts to compromise b/w the statutes. That is taking care that laws are faithfully executed (47)

[3 or 4 votes?][5 or 6 votes]

** We are seeing distinctions by justices b/w where war is fought & how it is declared. All prepared to give some kind of wartime power under CiC.

Emergency powers  if there was enough of a catastrophe, then we have a majority that would allow Pressuch authority w/out Congress. If Congress has anticipated an emergency, then the Pres must limit his powers to what Congress specifically gave him – Congress occupies the field.

** Perhaps Truman should’ve gone to Congress first before he acted. He did the opposite.

** Note: customary authority can never override the Constitution.

What helps us determine whether custom exists? Theory of Congressional acquiescence.

  • Frequency of act is relevant to whether a custom emerges.
  • Collateral legislation by Congress can also signal acquiescence.
  • Notice  Congress has to know to actually acquiesce to something!
  • Frankfurter is not the only one who believes in this. Jackson’s middle category (“twilight zone”) also seems to suggest that he supports a theory of Congressional acquiescence.
  • For custom to give Pres authority to act, it must first be permitted by Constitution. If he has statutory authority, he can not rely on custom, b/c he already has authority delegated to him by statute.

** Principle out of Steel Seizure Case = there is authority for Pres to act w/out specific statutory approval in an emergency if it’s grave enough.

** Separation of powers

Jackson’s category 1: Pres acts pursuant to express delegation of authority from Congress. This is where Pres is at his highest power.

Category 2: as long as it’s not prohibited by Const, if Congress lets it go by or facilitates, then Pres has authority.

Category 3: what if Pres is forbidden to act by Congress? There may be some categories of power given to Pres directly by Const. In these situations, Pres wins over Congress. How do we resolve these category 3 conflicts?

  • Look to text of Const. If power is expressly given to one side, then we’ll follow it. Chadha Pres was legislating, which is expressly given in Art.I to Congress. Buckley v. Valeo Congress tries to appoint someone, but this power is expressly given to Pres, so he wins.
  • If text doesn’t expressly assign & is silent, how do we resolve dispute?
  • Nixon v. GSA who had control of Nixon’s presidential papers? Here, court balanced intrusion on Pres that statute would create against the gov’t need to follow statute  if there isn’t too much intrusion, then uphold statute. Here, court strikes balance, since Const did not.
  • Nixon tapes case  balance need for tapes against Pres need for privilege. Court favored special counsel in this case.
  • Independent counsel legislation. Court balanced need for having special counsel against Pres need for control of Exec Branch, & sided w/ special counsel in a divided vote.
  • If we have a dispute b/w what a Pres wants to do & what Congress wants to do based on its statute, courts will balance.

President’s foreign relations authority

US v. Curtiss-Wright Export Corp. (p.61)

Pres issues proclamation prohibiting arms sales to Bolivia. He had authority for this based on Congressional joint res’l (presented to Pres, so it’s essentially a statute) that gave Pres discretion over this issue – “if you think it’s necessary, do it.”

  • What is legal effect of Pres proclamation? It has force & effect of statute, b/c he is exercising delegated authority from Congress.
  • When this case came down, it was a challenge to Congress that it had improperly delegated authority to Congress b/c it was criminal violation!
  • Is statute specific enough to pass delegation doctrine?
  • If delegation was invalid domestically, could it be valid b/c it applies internationally?
  • To what extent does delegation doctrine apply to foreign affairs?
  • Court: YES, this delegation is valid for foreign affairs.
  • Foreign affairs are very complex, & we need 1 voice for nation.
  • Pres should be that 1 voice b/c he has access to confidential resources.
  • But why doesn’t Congress have that access? Pres can respond quicker, he has deeper contacts abroad (ambassadors, embassy personnel, CIA, etc.). It is easier for Pres to keep secretsb/c he has top-down authority, while Congress is ultimate horiz body. Congress can’t see what’s coming in foreign affairs – thus, Congress has no choice but to delegate to Pres on this issue.
  • Pres has much greater discretion from Congress over int’l affairs.
  • Historical argument = dealing in foreign affairs was never power of several states, it was always the power of the sovereign. This is true all over the world. Const doesn’t give this power to Pres, he always had it anyway.
  • Argument here that Pres has some extraconstitutional authority here, even notwithstanding the authority given to him by Congress.
  • Yet states did have some foreign affairs powers during Articles of Confederation times. Sovereign power is arguably w/ the people, not w/ Pres.
  • This is Category 1 case.

** Steel Seizure came after Curtiss-Wright. Did it change anything?

  • One is domestic, one is foreign.
  • Yet SS is aimed at supporting US abroad (while at war), so is the distinction this clear? Doesn’t seem that this distinction holds up anymore.
  • Yet primary purpose of steel seizure is to take steel domestically, so it was domestic! Could also argue this the other way.
  • SS had no delegated authority (b/c Congress chose to not give him authority to seize)  SS is category 3, CW is category 1 (Pres acting pursuant to authority given to him by Congress).
  • CW places clear emphasis on Pres power over foreign relations – “sole organ.” Therefore, he could arguably act w/out power from Congress. Yet he is not necessarily the exclusive organ of foreign relations. Even if Pres has extraconst authority, whatever he does is still subordinate to Constitution.

President’s war & emergency powers

What core authority does CiC have? Command authority – he commands troops. Generals answer to him. This power might arguably then be beyond Congressional reach.

Little v. Barreme (p.71)

Undeclared naval war w/ France. Came right after a time when US was grateful to France for helping in Revolution. However, a trade war developed, so that’s where hostilities started. Congress passed a number of statutes that steadily escalated what private vessels could do against the French.

  • Statute involved here = allowed US vessels to intercept vessels on the way TO France
  • Here, the Flying Fish was seized. Captain was implementing Pres order, rather than Congressional owner.
  • Shipowner sues Little  who gets proceeds? L claims that he is immune, b/c he was just following orders.
  • Court = Pres didn’t have statutory authority. He had authority to seize vessels going TO France, not FROM.
  • Yet, it didn’t expressly prohibit it either. Seems like statute was very specific  Congress has occupied the field – ‘this is how we can wage these hostilities’. Therefore, Pres is confined to what Congress prescribed. Pres cannot make law.
  • This has implications for Pres command authority Congress has authorized war, but yet Pres still does not have unfettered command authority here b/c Congress was so specific.
  • Why did Congress limit his power in this way? It might be more offensive to seize vessels FROM France - & if France wanted to fight a land war, US was not in a good position. Congress was probably trying to be careful. Also, people might not support such an all-out war.
  • L is thus personally liable for value of vessel. Yet, he was following Pres orders!
  • What result after this case? Congress might make a statute immunizing officers for following orders. What they actually did was much narrower passed a law covering L’s liability.

The Prize Cases (p.73)

Civil War – naval blockade of Confederacy. Int’l law said that existence of law permits blockades – here, no war was declared.

  • Argument that this was war nevertheless b/c it was unilateral war  Pres has authority to preserve/defend Const, so he must resist the attacks. Therefore, the blockade would be ok. He can use whatever he thinks is necessary.
  • Pres shouldn’t have to wait for Congress in these emergency situations
  • Does this mean that if a country fires on our vessels, we can nuke that country? Seems very disproportionate, especially w/ advent of nukes. However, seems like Pres could allow defensive measures, like shooting back to defend the ships.
  • Therefore, seems to be an inherent proportionality limitation in Pres defensive war power.
  • Seems to be borrowed from int’l law
  • However, Pres could probably do more if he got authority from Congress.
  • How could Pres be stopped in taking excessive military action? Injunction by a court. Congress could pass law limiting appropriations. Or just let him suffer in the elections.

** How do we limit holding of this case?

  • Only allow such actions when taken on American soil. Civil War threatened to split country apart, so it was legit emergency.
  • Also perhaps could limit emergency war powers by time as well. If you wait too long from the initial attack, the less power Pres has.
  • Lincoln acted w/out Congress b/c they were on recess. Perhaps that might distinguish Prize Cases from others – if Congress is in session, you might have to get authority from them.
  • Defensive war power used here was not spoken on by Congress. If Congress did legislate eventually, then this would occupy the field.
  • In Prize Cases, Congress did legislate when they came back. This also gave Pres sufficient authority. If you wanted to limit Pres authority, you could say that this was Category 1 case b/c Congress legislated before court saw case – therefore, Pres still needs statutory authority. Could argue that stuff about Const authority was just dictum.

Dissent = only Congress can declare war, & they did not do so.

  • Distinguish b/w actually putting up blockade & seizing violators to sell them.
  • Pres might be able to actually put up blockade. However, only Congress can authorize taking of property. Separating military act from legal act of changing legal status of property.
  • Since Congress hadn’t done so here, then this taking was unlawful.
  • Military force vs. juridical consequences of such force

CiC power summary

  • Pres has defensive war power – can respond to state of war in which we are plunged by others
  • Can be limited by proportionality, time, etc.
  • Pres has power to repel sudden attack – this seems obvious
  • Pres has command authority during any authorized military operation, within limits set by Congress.

Emergency powers

In re Neagle (p.80)

N, a US Marshal, shot & killed someone who tried to kill Justice Field. N was charged w/ murder.

  • N: my order to protect a justice was a law of US, & what I did was pursuant to this law under writ of habeas corpus.
  • Court = there is a statute that says marshals can do what police officers can do. Even if there wasn’t such a statute, N should get his writ of habeas  necessary & proper to allow judiciary to function; take care clause.
  • This is an emergency case that seems to say where Pres can make his own laws to protect gov’t function. Seems to be opposite of Steel Seizure case.
  • Opposite of Little in that case, if Congress has legislated, it occupies the field & Pres must follow what Congress said. This case says that in areas of shared power, if Congress hasn’t legislated, Pres can do whatever is fairly implied from Constitution. In this way, Little & this case aren’t mutually exclusive.
  • Dissent = Congress has power to make all necessary & proper laws. Pres has no fallback authority like Congress does – see §8 of Art.I. Just b/c there is emergency, this doesn’t justify Exec acting alone. Congress must act – necessary & proper clause.
  • A very Steel Seizure like view.
  • Did dissent intend that N should’ve stood by while the Justice was murdered?! Maybe they wanted Congress to legislate here retroactively  the point is that Congress should be on top of these areas.
  • N could also still get a pardon.
  • 2 very different approaches to emergency power
  • Within the law approach stretch the law to authorize emergency action. Inferred implied authority in Constitution for what N did. Majority approach.
  • Downside is that you create a legal precedent that others can follow in the future.
  • Without the law approach Exec has power, but not authority, to act. N is acting unlawfully, but he can ask Congress to give him retroactive immunity or to legislate after the fact to relieve him of the consequences. Dissent approach.
  • Action is unlawful b/c Congress didn’t authorize, so there is no legal precedent created. Congress can relieve actions like N’s which were necessary at time.
  • Or maybe this would just over-deter people in the future. “I’d rather stand by & not get in trouble instead of doing what’s right & getting in trouble.”
  • If Congress has said nothing, then Pres can do what can be fairly inferred from Constitution. This seems to be principle from this case.
  • Anything in Neaglethat suggests a limit on Pres authority? You must have some real factual predicate for N’s protection. Justice must be in imminent danger. This is an emergency power that only arises when attack is imminent. Otherwise, you should go to Congress. Limit seems to be in the circumstances.

CONGRESSIONAL DECLARATION OF WAR POWER