By: Giliann Karon
Edited By: Grace Gay
In his concurring opinion in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson wrote that presidential powers are not fixed and emphasized the executive branch’s “separateness but interdependence.” [1] He divided the executive power that the president can delegate to the legislative branch into three categories: implied power, the “zone of twilight,” and the “lowest ebb.” The president has maximum authority when he acts in accordance with express or implied powers from Congress and the Court is unlikely to strike down these actions. In the “zone of twilight,” the president acts without congressional authorization and it is uncertain whether the president’s actions will be struck down. Instead of measuring the constitutionality of the president’s power against legal theories, the Court must take current events into account. When the president’s power is at its “lowest ebb,” the actions are the most likely to be struck down because they are incompatible with express or implied congressional power. Through analysis of a select number of Court cases spanning from Abraham Lincoln to George W. Bush through the lens of Justice Jackson’s test, I have established legal parameters for when a president can and cannot infringe on fundamental rights. During times of war, the Court is far more lenient than in times of peace. If the Executive Branch claims that the action in question is in the interest of national security, the Court will more than likely deem it constitutional, no matter how unethical it may be.
The executive branch enjoys more power during times of war than during times of peace. The Court unanimously ruled that the president is not entitled to absolute executive privilege in US v. Nixon 418 U.S. 683 (1974). [2] They acknowledged that the president can prevent the release of some information if it is necessary for national security, but if Nixon withheld the tapes, the special counsel could not carry out its duties of administering justice.
During times of peace, however, the president cannot curtail constitutional rights without meeting an incredibly high level of scrutiny. While investigating President Richard Nixon’s involvement with the Watergate break-in, Special counsel Leon Jaworski sought a court order requiring Nixon to hand over tape recordings from the Oval Office. Nixon refused to comply, claiming executive privilege because there is a need for confidentiality of communications within the executive branch. If the president could claim executive privilege to prevent being implicated in a criminal trial, what else could he claim executive privilege over? The fair administration of justice was more important than the need for confidentiality within the White House. Nixon released the tapes and resigned shortly after. This ruling placed parameters on when the president can invoke executive privilege and ensured that no one is above the law. After the Watergate scandal, Congress passed a provision as part of the Ethics in Government Act of 1978 authorizing the Attorney General to establish an independent counsel to investigate violations among high-ranking government officials. The counsel could exercise all the powers of the Justice Department, even though it was created by the executive branch. The Attorney General would have limited oversight and could only remove the counsel if they were unable to carry out their duties or if the investigation was complete.
A body within the executive branch had comparable powers to the Justice Department, so there were concerns over possible separation of powers violations, specifically the Appointments Clause because the president did not directly appoint the independent counsel. In a 7-1 ruling, the Court found that the Act did not violate the Appointments Clause because the independent counsel was an inferior officer, so they could be appointed by three judges instead. The process of appointing the counsel did not violate separation of powers because it did not interfere with the executive branch’s other responsibilities or take away power from the branch.
The ruling in Clinton v. Jones 520 U.S. 681, 117 S. Ct. 1636 (1997) held that the Constitution does not grant the president immunity from civil litigation over events that took place before he took office. [3] President Bill Clinton made unwanted sexual advances on Paula Jones, a state employee, while he was governor of Arkansas. Jones rejected Clinton’s advances and her supervisors at work retaliated by demoting her. When she sued for damages in federal district court, Clinton tried to invoke presidential immunity to get the suit suspended. Instead, the judge granted a stay until Clinton left office.
Both parties appealed. The appeals judge denied Clinton’s request, holding that the president is subject to the same laws as any other citizen. If she stayed the case until the end of Clinton's term, she would grant him a degree of presidential immunity. Clinton asked the Supreme Court to reverse the decision because he believed the Framers recognized that the president is different from an ordinary citizen. He also claimed that civil lawsuits would be distracting. The Court unanimously held that the president is only immune from civil litigation under exceptional circumstances. No precedent supported Clinton’s invocation of immunity for a civil suit over actions from before he took office. They also held that the president’s involvement in a civil suit does not violate separation of powers because the judicial branch is not performing any powers of the executive branch.
There is far more accountability within the executive branch during times of war than in times of peace. During wartime, the president cannot turn the country into a police state, but the Court is more forgiving of increased surveillance and militarism. As commander-in-chief, the president must defend the country from enemy forces. The president often tinkers with due process rights to safeguard American citizens and interests, as was the case in Korematsu v. U.S., 323 U.S. 214 (1944). [4]
After the bombing of Pearl Harbor and the anti-Japanese mass hysteria, President Franklin Delano Roosevelt signed Executive Order 9066, which authorized the relocation of Japanese-Americans into detention centers. Fred Korematsu, who was born in California to Japanese parents, was arrested because he refused to relocate. At the beginning of World War II, he underwent surgery on his eyelids and started going by Clyde Sarah to pass as white.
He argued that EO 9066 violated the Equal Protection clause of the Fifth Amendment because it discriminates on the basis of race, as well as the Due Process clause of the Fifth Amendment because it deprived him of the same rights of other citizens without due process, but the Court ruled against Korematsu. Justice Black, writing for the majority, said that laws restricting civil rights on the basis of race are not inherently unconstitutional. They are just subject to a stricter level of scrutiny. He acknowledged Korematsu’s hardships, but contended that hardships are a part of war and every American must pay their dues. Justice Frankfurter, concurring, believed the president’s actions must be “judged wholly in the context of war.” The president’s duty to prevent further aggression from Japanese forces justified the executive order according to the Court.
The Court has also allowed for more military aggression without a formal declaration of war. In the Prize Cases 67 U.S. (2 Black) 635 (1863), President Abraham Lincoln imposed a naval blockade of Southern ports after the Southern states seceded. [5] Union forces seized four ships that had been trading with the Confederacy. The ship owners declared the seizure unconstitutional because there was no official declaration of war. The Court determined that Lincoln’s actions did not amount to piracy and his blockade was constitutional absent a declaration of war because the Union was in a state of insurrection. When the current situation meets the requirements for war, regardless of whether Congress has issued a declaration, the president has more authority to enact measures that hinder the enemy’s military capabilities, including blockades and seizure of property.
Cases from George W. Bush’s administration held that the executive branch cannot fully suspend the rights of American citizens during wartime. In the wake of September 11th, Congress passed the Authorization for Use of Military Force, which allowed the president to use all necessary and appropriate force against countries, organizations, and people with links to terrorism. US-backed Afghan forces captured Taliban soldier Yaser Esam Hamdi, declared him an enemy combatant, and sent him to Guantanamo Bay. Since he was an enemy combatant, he could be held indefinitely without trial, pursuant to the AUMF. Upon discovering that Hamdi was an American citizen that moved to Saudi Arabia as a child, he was transferred to a military prison in Virginia. His father filed a petition for habeas corpus on his son’s behalf, alleging that indefinite detention without trial or access to legal assistance is a violation of due process. The Court held that Hamdi’s detention was unlawful because as long as he was held in the United States, he was entitled to due process. He was also entitled to due process because he was an American citizen, even though he was aligned with the Taliban. Justice O’Connor, writing for the plurality, emphasized that a “state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.” The decision did not address the rights of non-citizen detainees.
Guantanamo Bay detainees have no right to trial and restricted access to counsel, but Boumediene v. Bush 553 U.S. 723, 128 S. Ct. 2229 (2008), greatly expanded detainees’ legal rights by allowing them to bring habeas corpus petitions to federal court. [6] In 2002, Bosnian police arrested Lakhdar Boumediene and five accomplices for planning an attack on the US Embassy in Bosnia. The United States government deemed them enemy combatants and sent them to Guantanamo Bay. Boumediene petitioned for a writ of habeas corpus, but the District Court said he did not have a right to a habeas petition because he was not an American citizen and Guantanamo Bay is not in the United States. Four years later, Congress passed the Military Commissions Act of 2006. Section 7 prevented federal courts from hearing habeas petitions from enemy combatants detained overseas. Detainees could only be tried in military commissions. Boumediene petitioned again, arguing that the MCA violated the Suspension Clause, which only permits the suspension of the writ in cases of rebellion or invasion. The D.C. Circuit Court held that in 1789, the Suspension Clause only applied to American citizens on American soil. Even though Guantanamo Bay is on land that the United States leases from Cuba, the region is not within America’s borders. The Supreme Court denied Boumediene’s petition for a writ of certiorari, but reversed their decision three months later. In a 5-4 decision, they held that Section 7 violated the Suspension Clause, the due process clause of the Fifth Amendment, and the Geneva Conventions. Their decision restored federal courts’ jurisdiction over habeas petitions filed by Guantanamo Bay detainees.
The Bush administration best exemplifies how times of crisis justify enormous expansions of presidential power that snowball until America becomes a surveillance state predicated on a climate of fear. And if it’s under the guise of national security, the Supreme Court will usually let it stand.
Boumediene was one of those rare cases where the Supreme Court emphasized the importance of habeas corpus. If prisoners cannot challenge their unlawful detention, there is no way to hold the legal system accountable and reform the law. Allowing the vilest terrorists to have their day in court under a fair legal system is the crux of human rights. Regardless, Bush enacted wide-reaching surveillance programs and chipped away at detainees’ legal rights because he was acting in the interest of national security, and the United States was at war. The Court is quick to strike down executive actions that marginally reach beyond constitutional boundaries during times of peace.
Would FDR have been able to relocate Japanese-Americans if Pearl Harbor had not been attacked? Would Nixon have been able to keep the tapes if they contained classified information about a military strategy? There’s no way of knowing for sure, but the Court most likely would have struck down both of these cases. The president’s powers are clearly established, but they are not fixed. History will not be kind to those who supported Executive Order 9066 or Bush’s foreign policy measures. But the point is, the Court held that the president must have the ability to act beyond the powers specifically delegated in the Constitution in order to protect the country from enemies foreign and domestic, and the Court must take current events into account while protecting equality and due process.
NOTES:
Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952)
US v. Nixon 418 U.S. 683 (1974)
Clinton v. Jones 520 U.S. 681, 117 S. Ct. 1636 (1997)
Korematsu v. U.S., 323 U.S. 214 (1944)
Prize Cases 67 U.S. (2 Black) 635 (1863)
Boumediene v. Bush 553 U.S. 723, 128 S. Ct. 2229 (2008)
BIBLIOGRAPHY:
Thomas G, Epstein, Lee Walker, Constitutional Law for a Changing America - Institutional Powers and Constraints (Washington, DC: CQ Press, 2015)
