War & Foreign Affairs Power

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How does the Constitution reflect the opinion that a standing army was the greatest threat to a civilized society?

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1. 3rd Amendment: Can’t be forced to quarter soldiers
2. Only popularly elected branch of government was Congress - Major structural check: Give people’s representatives the most important power over war funding and war making. A law creating funding for an army has to expire after two years. Members of the House are elected every two years. So, the improper use of the army can only occur for 2 years

3. Commander-in-Chief -Important that he be a civilian. Important that he have only a 4-year term; Prevent the army from being used against the American people

4. Militia -Voted for their own officers and in what wars they wanted to fight. Were controlled by state and local officials. 2nd Amendment: State and local militias being able to retain their weapons and act as a counterweight to a standing national army. 4. Congress, not the President is given the power to call forth the militia. 5. Militia can be used to To repel invasion, Suppress insurrections, Execute the laws of the Union.

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Federalist Papers on Executive Powers

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1. Federalist No. 25 (Hamilton)
1. US needs a standing army in peacetime, otherwise US could receive a blow, before preparing to defend it

2. Federalist No. 48 (Madison)
1. There is reason to be weary of executive power, but there are adequate checks on the executive under the Constitution

3. Federalist No. 69 (Hamilton)
1. Why the executive under the Constitution is more limited than the king? 1. President would not be like the king because he is elected by the people for 4 year terms. 2. President can be impeached and afterwards tried for his wrongdoings. 3. Congress can override president's veto 4. Commander-in-chief power 1. President will only have control over the military for purposes authorized by Congress. 2. President doesn't have power to raise armies or declare war. 5. President has power to make treaties, but 2/3 of senate must concur 6. President has to have ambassadors approved by the senate 2. Many kingly prerogative given to Congress

President has relatively limited power under Constitution

4. Federalist No. 70 (Hamilton)1. A feeble executive implies a feeble execution of the government
5. Federalist No. 74 (Hamilton1. Of all the cares and concerns of government, "the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand."

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Little v. Barreme

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1. Facts: Congress passed a statute which prohibited any American ship from going "to any port or place within the territory of the French Republic (including Hispaniola)." Adams ordered naval officers to "be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports, do not escape you." An American captain captured a ship going from a French port.
2. Holding: President cannot go beyond the bounds that Congress has set
3. Rationale: Congress specifically excluded any vessel not bound for a French port
4. Note:. Later courts have taken a broader reading of the statutes that authorize the President to take certain military actions.

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# Brown v. US – (1814) – To some extent this is an “artifact” case

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1. Facts: US claimed timber that was carried by an American ship contracted to a British citizen after the War of 1812. It was a rule of international law that at the outbreak of a total was, any property of foreign enemies may be seized.
2. Issue: Whether a declaration of war automatically gives the executive the power to seize the property of aliens.
3. Holding: Congress, not the President, has the sole power to authorize the confiscation of enemy property during wartime
4. Rationale:
1. This is a question of policy and such policy-based decisions should be left to the legislature – Structure of the government demands the result.
5. This case was basically overruled by Lincoln’s actions during the Civil War.

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# Prize Cases FACTS AND ISSUE AND HOLDING - (1863) – Key case in the Constitutional Cannon

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Facts: Lincoln issues a proclamation ordering the blockade of Southern Ports and the seizure of any ships caught carrying goods to them.
# Issue: Whether Lincoln had the power to order the blockade without an act of Congress
# Holding: The blockade was within Lincoln’s power

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Prize Cases - Rationale

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# Rationale:

1. Lincoln’s power to act
1. Congress’s power to authorize the President to enter into war need only be exercised when the US is currently at peace and a declaration of war will bring the US into a war.
2. When the country is attacked, the President need not wait for a Congressional authorization before using force to defend the Country
1. If the country is at war, the President becomes that Commander-in-Chief. When the US is attacked, it is at war.
2. Says that the fact that the President ordered the blockade is evidence that a crisis existed.
2. How far can the President go?
1. “He (the president) must determine the degree of force that the crisis commands.”
3. Also noted, without claiming that ratification was necessary, that Congress ratified the President’s actions afterwards by passing a statute approving the President’s proclamations, etc.

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Lincoln and Susp. of Hab Corp. Relevant Constituional Provision:

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Article 1, Section 9, Clause 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.

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Ex Parte v. Merryman – (1861)

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1. Facts: Early in the war (Congress not in session) Lincoln issued an order to one of his Generals to suspend habeas corpus along a railroad corridor in Maryland.

2. Holding: Only Congress can suspend Habeas Corpus

3. Rationale:
1. First article is devoted to the legislative department of the US and contains not the slightest reference to the executive
2. There is not a word about the power to suspend habeas corpus in Article II
3. President is exercising essentially legislative power
4. Points to the 10th Amendment to say enforce idea that b/c this is not in the enumerated powers of the President, he cannot do it.
5. If the President is able to Unilaterally suspend habeas corpus, then he has more power than the people of England thought safe to entrust in the crown

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Lincoln’s response to Merryman

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July 4th message

1. Basically says that if you have to violate one part of the Constitution to save the rest of it, that is ok.
2. Lincoln also notes that the Constitution is silent as to who has the power.

4. Why might Lincoln have been wrong? 1. Slippery slope. 2. Habeas Corpus is such an important right that it just cannot be violated

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Lincoln, Ex Parte Milligan, and Use of Military Tribunals.

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Facts: Milligan was arrested by US Military officials in late 1864 in Indiana, where there were no hostilities and where the courts were still operating. He was tried by military commission and sentenced to hang.

Holding: If a D is not in the military and in a US state that is under the laws of the US at the time, military tribunals may not be used.

1. This holding was later undercut by WWII decisions. Today, if you are a civilian and you violate a law of war an take a military action, you can be tried in a military tribunal.

Rationale:

1. Original Understanding
1. The founders were familiar with the struggle to try to relieve those in civil life from military trails
2. People were so protective of their right to be tried by a jury that when a draft of the constitution denied that right by implication, it encountered severe opposition.
2. Where war really prevails, military commissions are ok, but Federal authority in Indiana was unopposed

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Ex Parte Milligan, Relevant Con Provision and Rationale

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Provision: Article III, Section 2, Clause 3: “The trail of all Crime, except in Cases of Impeachment, shall be by jury.”

Rationale: (Overturned Tribunal Conviction)
1. Original Understanding - The founders were familiar with the struggle to try to relieve those in civil life from military trails
2. People were so protective of their right to be tried by a jury that when a draft of the constitution denied that right by implication, it encountered severe opposition.
2. Where war really prevails, military commissions are ok, but Federal authority in Indiana was unopposed

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# US v. Curtis-Wright Corp. – (1936)

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Facts: Congress enacted a joint resolution that provided that, if the President found that a prohibition of arms sales to the countries fighting in the Chaco war b/w Bolivia and Paraguay would promote regional peace, and the President made a proclamation to that effect, such arms sales would be illegal. The President made such a proclamation.
Issue: Whether the delegation of a foreign affairs power to the President is Constitutional.
Holding: Congress may delegate a foreign affairs power to Presidential judgment.
Rationale: 1. The Court did not address the question of whether a Joint Resolution relating solely to foreign affairs and delegating power to the President would be unconstitutional
2. Fundamental difference b/w domestic and foreign policy. They are different re: their origin and w/ respect to their nature.
1. Origin: Powers over foreign policy are inherent to any nation. (whereas domestic powers did not vest in national government until after ratification).
2. Nature - 1. President has a better opportunity to know the conditions that prevail in foreign countries, especially in times of war.
2. President alone has the power to speak or listen as a representative of the nation.

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Youngstown Sheet & Tube Co. v. Sawyer FACTS. ISSUE. HOLDING

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Facts: During the Korean war, the United Steelworkers of America decided to go on a nationwide strike. Truman ordered the Secretary of the Treasury to seize the steel mills and operate them in the name of the US. Claimed that the uninterrupted production of steel was vital to the successful prosecution of the Korean War. Truman informed Congress of his action, but Congress did not object.

Issue: Whether the president may seize the facilities of a private industry is such seizure is essential to the carrying on of a war.

Holding: Affirmed the issuance of the injunction against president Truman.

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Youngstown v. Sawyer Rationale

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Rationale:
1. The President's power to issue the order would have to stem from either an act of Congress or the Constitution itself. There is no statute that authorizes the President to take the action he did

2. How about Constitutional support for his actions? 3 textual bases for President’s exercise of power :

1. "Commander in Chief" - Article II, § 2, Clause 1 1. "We cannot with faithfulness to our constitutional system hold the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property."

2. "Vesting clause" - Article II, § 1, Clause . 1. A legislative action requires that a bill is passed by both houses of Congress and present it to the president. Basically the opposite of the reasoning in Chadha - Seizing a steel mill is a legislative action, so congress must be involved.

3. "Take Care" clause – Article II, § 3 1. The President's order does not direct that a congressional policy be executed in a manner as prescribed by Congress -- it directs that a presidential policy be executed in a manner prescribed by the President.

OTHER RATIONALE Court makes a structural argument that “the President’s power to see that the laws are executed refutes the idea that he is to be a lawmaker.” The founders entrusted lawmaking authority to Congress in both good and bad times.

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Important 3-part Test for Presidential Power, Jackson Concurrence:

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Forefathers knew what emergencies were and knew that they might be a pretext for usurpation
Famous 3-part test (Presidential powers are not fixed, but fluctuate)

1. "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate

2. When the President acts in absence of either a congressional grant or denial or authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

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Hamdi (2004) Facts Issue1 Holding1

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# Facts: Hamdi was an American citizen captured in Afghanistan. He was being held in a US Brig. One week after 9/11 Congress passed the AUMF: authorized the President to “use all necessary and appropriate force against…persons” he determines aided terrorist organizations in their attack against the US. Hamdi was classified as an Enemy Combatant.
Issue 1: Whether the Executive has the authority to detain citizens who qualify as “enemy combatants”
Holding 1: The Executive has the authority to detain, for the duration of the hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States.”

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Hamdi (2004) Rationale 1

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Rationale 1:

1. For the purposes of the case, the court accepts the government's definition of "enemy combatant": An individual who was "part of or supporting forces hostile to the US or coalition partners'" in Afghanistan and who "engaged in an armed conflict against the US" there.
2. The government's detention is authorized by the AUMF. The AUMF satisfied the requirement of the Non-Detention Act that there may be no detention of an American citizen by the US that is not pursuant to an act of Congress

2. Capturing enemies is appropriately considered "necessary and appropriate force" Court looks to past practice to determine what is "necessary and appropriate force" (tools of statutory interpretation -1. Prior US conflict 2. International Laws of War Authorizes any state that is involved in war to detain enemies for as long as the conflict lasts
3. A little bit of precedent

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Hamdi (2004) Issue 2, holding and Rationale

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Issue 2: What process is constitutionally due to a citizen who disputes his enemy-combatant status? (DUE PROCESS ISSUE, DENIED LIBERTY WITHOUT DUE PROCESS)
Holding 2: Neither the process provided by the government and the DC below are sufficient.) Hamdi must be accorded due process; entitled to have habeas petition heard in federal court
  3-part Matthews v. Eldridge balancing test: importance of individual’s interest, ability of additional procedures to reduce risk of erroneous deprivation, govt’s interests entitled to meaningful factual hearing w/ notice of charges, right to respond, right to attorney but hearsay may be admissible & burden may be on Hamdi

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Hamdi Issue 2 Rationale cont'd

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iii. Application of Mathews test
a. Unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat
b. Balanced against the interest that those captured do not return to fight against the US.
1. Discovery into military operations might reveal sensitive secrets.