Executive War Powers Flashcards
Presidents War Powers
* the Constitution confers on the President the ‘executive power’ Art. II, § 1, cl. 1
* imposes on him the duty to ‘take care that the laws be faithfully executed’- Art II, § 3
* It makes him the ‘commander in chief of the army and navy’- Art. II, 2, cl. 1
* and empowers him to ‘appoint and commission officers of the United States.’- Art II, 3
War Powers- Youngstown Sheet and Tube
when efforts to settle labor dispute failed, union called nationwide strike & Pres issued executive Order directing Secretary of Commerce to seize mills, which are private property, in order to keep them operating. This order was unconstitutional b/c Pres had no authority from Congress or the Constitution.
Jackson, in concurrance discusses 3 zones of presidential power
War Powers- Jackson’s 3 Zones
Jackson’s 3 zones: where Presidential powers may be challenged:
- When Pres acts pursuant to an express or implied authorization of Congress – authority at apex- own powers plus Congress’s powers
- Zone of Twilight – When Pres acts w/o congressional action, can only rely upon his own powers, but there is a zone of twilight where power may be uncertain– any test of power likely to depend on imperatives of events and contemporary imponderables
- Congress said no – Pres takes measures incompatible with express or implied will of Congress, his power is at lowest ebb- rely only on Pres. powers, minus any powers congress has over the issue.
War Powers- Cases
Dames & Moore
9-0 case that enacts Jackson’s 3 zones test
War Powers- Cases
Curtiss-Wright
Arms embargo case
President alone has power to speak or listen as rep of the nation; he sets foreign policy
President makes treaties then ratified by Senate
2 Types of Military Commissions (Art. II Courts)
- Martial Law tribunal- operates when there is no govt to try cases; military is only govt.
i. When courts are closed, military jurisdiction has general jurisdiction.
ii. Must be ‘utterly impossible’ for civilian courts to function
iii. Area-specific- courts must be closed in this area
iv. Not limited to enemy combatants
- Laws of War tribunal- operates to try enemy combatants under the ‘laws of nations’
i. A military commission operating when courts are open
ii. has limited jurisdiction.
iii. Limited to “unlawful enemy combatants”
Military Tribunal- Cases
Ex Parte Milligan
US citizen in Illinois (courts open) arrested, tried, and convicted under martial law tribunal
1. Open court rule- if courts are functioning- no martial law tribunals allowed in that area; ‘utterly impossible’ standard for martial law tribunals to be OK; geographical nexus needed
- Not ok for citizen to be tried in martial law tribunal as courts were open
Military Tribunal- Cases
Ex Parte Quirin
US citizen who was also in German marines sent to sabotage US; tried in law of war tribunal
- Extended law of war military tribunal to include certain offenses that violate the laws of war, even when Art. III courts are open
- Differentiated between law of war and martial law commissions
- Could try D’s regardless of citizenship if they were unlawful enemy combatants; citizenship immaterial if take up arms
- Law of war tribunals not able to try non-enemy combatants
- Permitted by the presidents constitutional war powers (zone 1)
Military Tribunal- Cases
Hamdan v. Rumsfeld
OBL’s driver case; executive order authorizing Sec Def to appoint military tribunals for POW’s (non-state actors) not OK- no auth. From congress-Zone 3; once Pres. Went to congress= Zone 1; charge of conspiracy against Hamdan
- President has power to try crimes against the laws of nations; thus law of war tribuanls are ok, but;
- Only when:
a. In place of civilian courts during martial law
b. Temporary military govt. in occupied territory
c. When crime is incident to the conduct of war which violates the law of war- this is the only one in this case but NOT conspiracy- that doesn’t fit; actual conduct only
d. Inchoate offenses require an Art. III court; must have rules that don’t fall short of an Art. III court
Zone Diagram
Zone 1-
ML- always OK
LoW- hardest analysis
Zone 2-
ML- usually OK
LoW- usually not ok
Zone 3-
ML- usually not ok
LoW- usually not ok
Factors to Consider
i. separation of powers- Art. III vs. Art. II
ii. Violation of civil liberties
1. 5th Amdt – entitled to grand jury except during war/due process
2. 6th Amdt – right to speedy trial, etc.
Distinguishing Between Milligan & Quirin
i. In Quirin Ds admitted they were UECs; Milligan did not
ii. Quirin D’s admitted what they did; Milligan did not
iii. Quirin was state actors; Milligan was not
Military Tribunal- Cases
Hamdi v. Rumsfeld
- US citizen captured in Afg. and held at Gitmo; father filed writ of habeus corpus- alleging Hamdi held illegally
- holding- because D was in zone of active combat in a foreign theater of conflict, Pres. has constitutionally detained him according to Pres. war powers
- Scalia dissented
- Hamdi is a citizen
- he is in ‘privity’ under the Constitution so he should enjoy all the rights under the Constitution
- said that what Milligan really stands for is the idea that a citizen has the right to an Article 3 determination as to whether he is an ‘enemy combatant’ before he is subject to a military tribunal
- during this Article 3 hearing, the evidence would have to be beyond a reasonable doubt, rules of evidence, etc.
- recounts Quirin and recounts that the AG basically threatened SCOTUS- says that wasn’t the Courts finest hour
