Checks and Balances
The Imperial Presidency
Youngstown v. Sawyer (1952)
Robert H. Jackson’s Opinion
Jackson divided Presidential authority vis a vis
Congress into three categories, ranked in
descending order of legitimacy:
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(1) those cases in which the President was acting
with express or implied authority from Congress,
(2) cases in which Congress had thus far been silent,
and
(3) cases in which the President was defying
congressional orders. He classified this case as falling
within the third category.
The Attorney General Gonzales in a speech at
Georgetown University on January 24, 2006 said:
“Just a few days after the events of September 11th,
Congress enacted a joint resolution to support and
authorize a military response to the attacks on American
soil. In this resolution, the Authorization for Use of
Military Force, Congress did two important things. First,
it expressly recognized the President’s “authority under
the Constitution to take action to deter and prevent acts
of international terrorism against the United States.”
Second, it supplemented that authority by authorizing
the President to, quote, “use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed,
or aided the terrorist attacks” in order to prevent further
attacks on the United States.”
NPR: Key Figure in Wiretapping Suit Goes Public
Limiting the Bush Administration’s
War On Terror
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Detainee Treatment Act of 2005
The amendment was added to the Defense Appropriations
Act of 2006 by Senator John McCain.
The amendment prohibits inhumane treatment of prisoners,
including prisoners at Guantanamo Bay, by confining
interrogations to the techniques in Army Field Manual.
President Bush’s Response: "The executive branch shall
construe Title X in Division A of the Act, relating to
detainees, in a manner consistent with the constitutional
authority of the President to supervise the unitary executive
branch and as Commander in Chief and consistent with the
constitutional limitations on the judicial power, which will
assist in achieving the shared objective of the Congress and
the President, evidenced in Title X, of protecting the
American people from further terrorist attacks.“ (Signing
Statement)
NPR: Scalia Enters Debate on Constitution and Torture
Reining in the Bush
Administration’s War On Terror
“Enemy Combatants”
Hamdi v. Rumsfeld (2006) & Hamdan v. Rumsfeld (2006)
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Precedents that reined in the Imperial Presidency:
Ex Parte Milligan (1866) & Ex Parte Merryman (1866)
Ex Parte Quirin (1942)
Youngstown v. Sawyer (1952)
“We have long made it 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.” Justice O’ Connor, Hamdi
Meet the JAG Lawyer Who Prompted Bush's Detainee Bill
War Powers Act of 1973
Rein in the Imperial
Presidency
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A response to the way
LBJ escalated the war
in Vietnam.
An attempt to limit the
power the Gulf of
Tonkin Resolution had
given the president.