It’s interesting to read Justice Kennedy’s concurrence in Hamdan v. Rumsfeld for signs of how Justice Kennedy would rule on the scope of the Commander-in-Chief power issues that may come come before the Court in the next few years. Much as I had expected, the opinion follows Youngstown and suggests that Congress’s views are supreme.
The key excerpts:
This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.. . .
The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). “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.” Id., at 635. “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.” Id., at 637. And “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Ibid.
In this case, as the Court observes, the President has acted in a field with a history of congressional participation and regulation. . . . While [the laws on charging detainees] provide authority for certain forms of military courts, they also impose limitations, at least two of which control this case. If the President has exceeded these limits, this becomes a case of conflict between Presidential and congressional action—a case within Justice Jackson’s third category, not the second or first.
. . .
[A]s presently structured, Hamdan’s military commission exceeds the bounds Congress has placed on the President’s authority in §§836 and 821 of the UCMJ. Because Congress has prescribed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws. At this time, however, we must apply the standards Congress has provided. By those standards the military commission is deficient.
UPDATE: Justice Kennedy also joined the brief concurrence by Justice Breyer that states the following:
Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.
ANOTHER UPDATE: I missed this tidbit from Kennedy’s concurrence the first time around:
Trial by military commission raises separation-of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review. Cf. Loving v. United States, 517 U. S. 748, 756–758, 760 (1996) . Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid. It is imperative, then, that when military tribunals are established, full and proper authority exists for the Presidential directive.
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I think Scalia had it right on the jurisdictional question, but the merits being reached, I agree with the majority. It’ll be interesting to see future litigation clarify which provisions of the Geneva Conventions are available for detainees — a question which the Court leaves open to a large degree.
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While Hamdan allows Geneva Convention Common Article 3 to be considered when detainees are prosecuted through standards set by the UCMJ Article 21, as part of the laws of war, and notes the criminal penalty for violating the Geneva Conventions, it does not resolve the question of whether it can be enforced with a private right of action, how the Detainee Treatment Act of 2005 impacts that issue, or whether some general provision like 1983, 28 USC 2674, or the All Writs Act.
The Court’s own opinion, at footnote 23, echoes Youngstown, too.
But one cannot rush to apply either of those opinion’s points too broadly. Footnote 23 says that the President can’t act contrary to “limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” Likewise, as you note, Kennedy focuses on Congress’s “proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice”.
Thus, before we can race to challenge the President’s authority to act contrary to Congress on a matter, we must ask, is Congress’s own action on the matter a valid exercise of its own power?
I’m thinking, of course, of the FISA debate. Of course we’ll ask, can the President contradict Congress on this matter? But we must also ask, from where does Congress derive its authority to legislate on the subject?
Of course, it’s easy in the UCMJ context. The Constitution explicitly provides for congressional regulation. But on matters of surveillance, the answer is not so straightforward.
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Adam: There is no — repeat, no — serious suggestion, even from the Administration, that FISA was not enacted pursuant to Congress’s Article I powers. In particular: The foreign commerce power, the Necessary & Proper Clause, and, with respect to the NSA (part of DOD), the Rules for Government and Regulation Clause.
Why does the Constitution grant Congress the power to deny the Supreme Court jurisdiction?
I accept that Congress does have that power under III.2.2.2: “[In all cases not involving amabassadors, ministers, consuls, or states,] the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.”
That “such exceptions…as Congress shall make” is basically unlimited.
And I understand why Congress can regulate jurisdiction. The legislature should clearly be empowered to define jurisdiction and deference among lower courts: after all, as long as there are lower courts, those rules must be established somehow. Further, the legislature ought to be able to constrain which types of decisions are reviewable — if nothing else, as a precaution against an over-aggressive higher court attempting to decide every significant case itself.
But I don’t understand the policy rationale for a congressional power to deny the Supreme Court jurisdiction over entire classes of cases independent of the particular legal decisions being reviewed. How does this serve the interest of society? Are there lurid histories of high courts aggressively over-reviewing their lower courts? Is it just impractical to distinguish this case and what I considered permissible above?
You know, I know Prof. Lederman has made the argument before, but that doesn’t make it right. The Necessary and Proper Clause does not contain independent power, and there are judges who construe “foreign commerce” more narrowly than Prof. Lederman does. There is also no historical evidence that the “Rules for Government Clause” has applicability to foreign affairs, as opposed to granting powers to regulate the Federal Government internally.
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Why does the Constitution grant Congress the power to deny the Supreme Court jurisdiction?
As a historical matter, I believe it was a compromise with those who were hostile to the creation of a federal judiciary (believing it would trample on state prerogatives). It was a way for states to fight back if the federal judiciary trampled on their rights.
These days, it seems to have shifted from a federalism weapon to an interbranch weapon between Congress and the Courts…I suppose one’s tolerance for such a weapon depends largely on how much democracy one is willing to tolerate. If one wants the Court to occasionally be able to tell the democratic branches no, and mean it, jurisdiction stripping is a pretty scary weapon. Luckily, it is very unpopular, so such measures remain quite rare.
Marty,
Are you saying that my suggestion was a “frivolous” suggestion? Please, Professor, must we strike such a dismissive, flippant tone? That’s hardly a “serious” effort to engage a nuanced issue.
I’m not sure why the regulation of foreign commerce is implicated by FISA. How would the federal government be “regulating” international communications by listening in on them.
The Rules for Government clause argument may have legs, but I’m just not sure how far it gets you. Surely you don’t argue that that clause literally gives Congress power to regulate every action of the other branches, does it? (Could Congress use that power to require the Supreme Court to not cite foreign cases?) I suspect that you don’t really believe that clause can be applied so radically; the clause has limits.
I’m surprised by your reference to the Necessary and Proper clause. For which separately enumerated power would FISA be a “necessary and proper” enactment?
True, the Bush Administration has not argued that Congress doesn’t have power to enact FISA. But there’s been no reason for it to pick that fight, has there?
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