The Courts:
A Constraint on
Presidential
power?
The Courts:
A constraint on presidential
power?
How have the courts served as a
check (or expansion) of
presidential power?
The Court on Executive Power
“A judge, like an executive adviser, may be surprised at the
poverty of really useful and unambiguous authority
applicable to concrete problems of executive power as they
actually present themselves. Just what our forefathers did
envision, or would have envisioned had they foreseen
modern conditions, must be divined from materials almost
as enigmatic as the dreams Joseph was called upon to
interpret for Pharaoh. A century and a half of partisan
debate and scholarly speculation yields no net result but
only supplies more or less apt quotations from respected
sources on each side of any question. They largely cancel
each other. And court decisions are indecisive because of
the judicial practice of dealing with the largest questions in
the most narrow way.”
–Justice Jackson, concurring, Youngstown Sheet and Tube v. Sawyer
Deferential about war powers in wartime
• Prize cases
• Ex parte Milligan
Ex parte Milligan
• “During the late wicked Rebellion, the temper of
the times did not allow that calmness in
deliberation and discussion so necessary to a
correct conclusion of a purely judicial question.
Then, considerations of safety were mingled with
the exercise of power…Now that the public safety
is assured, this question as well as others can be
discussed and decided without passion or the
admixture of any element not required to form a
legal judgment.”
Deferential about war powers in wartime
• Prize cases
• Ex parte Milligan
• US vs. Curtiss-Wright Export Corp.
US vs. Curtiss-Wright Export Corp.
“In this vast eternal realm, with its important,
complicated, delicate, and manifold
problems, the President alone has the power
to speak or listen as a representative of the
nation. He makes treaties with the advice
and consent of the Senate, but he alone
negotiates…
US vs. Curtiss-Wright Export Corp.
“It is important to bear in mind that we are here
dealing not alone with an authority vested in the
President by an exertion of legislative power but
with such authority the very delicate, plenary, and
exclusive power of the President as the sole organ
of the federal government in the field of
international relations—a power which does not
require as a basis for its exercise an act of
Congress…”
Deferential in wartime?
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Prize cases
Ex parte Milligan
US vs. Curtiss-Wright Export Corp.
Korematsu
Ex Parte Quirin
Ex Parte Quirin
• In writing the Articles of War, Congress…
“recognize(s) the military commission
appointed by military command as an
appropriate tribunal for the trial and
punishment of offenses against the law of
war not ordinarily tried by court
martial…By his order creating the
Commission [the president] has undertaken
to exercise the authority conferred upon him
by Congress.”
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
Jackson on Presidential Power
“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…
Justice Jackson on Presidential Power
“When the President acts in absence of
either a congressional grant or denial of
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…
Jackson on Presidential Power
“When the President takes measures incompatible
with the expressed or implied will of Congress, his
power is at its lowest ebb, for then he can rely
only upon his own constitutional powers minus
any constitutional powers of Congress over the
matter.”
--Justice Jackson, Concurrence,
Youngstown Sheet and Tube Co. v. Sawyer
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
Hamdan vs. Rumsfeld
Hamdi v. Rumsfeld
• “We…hold that a citizen-detainee seeking to
challenge his classification as an enemycombatant must receive notice of the factual basis
for his classification and a fair opportunity to rebut
the Government’s factual assertions before a
neutral decisionmaker…At the same time…enemy
combatant proceedings may be tailored to alleviate
their uncommon potential to burden the Executive
at a time of ongoing military conflict…”
Hamdi v. Rumsfeld
• “We reject the government’s assertion that
separation of powers principles mandate a heavily
circumscribed role for the courts in such
circumstances. Indeed, the position that the courts
must forgo any examination of the individual case
and focus exclusively on the legality of the
broader detention scheme cannot be mandated by
any reasonable view of separation of powers, as
this approach serves only to condense power into a
single branch. We have long since made clear that
a state of war is not a blank check for the
President when it comes to the rights of the
nation’s citizens.”
Hamdan v. Rumsfeld
• “Even assuming that Hamdan is a
dangerous individual who would cause
great harm or death to innocent civilians if
given the opportunity, the Executive
nevertheless must comply with the
prevailing rule of law in undertaking to try
him and subject him to criminal
punishment.”
Executive Privilege
• US v. Nixon
US v. Nixon
• “The president’s need for complete candor and
objectivity from his advisers calls for great
deference from the Courts. However…absent a
claim of need to protect military, diplomatic, or
sensitive national security secrets, we find it
difficult to accept the argument that even the very
important interest in confidentiality of presidential
communications is significantly diminished by
production of such material for in camera
inspection with all the protection that a district
court will be obliged to provide.”
Executive Privilege
• Nixon
• Clinton
• Bush 43
Have the courts appropriately
checked presidential power?
If not, why not?