Introduction
Article I, Section 1, of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.
Article II, Section 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.
Article II, Section 2, provides that “[t]he President shall be Commander in Chief of the Army and Navy of the United States.
Article III, Section 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in Such inferior courts as Congress may from time to time ordain and establish.
While the principle of federalism allocates power between the federal and state governments (in a sense, “vertically”), the principle of separation of powers allocates power among the three branches of governments (in a sense, “horizontally”).
It has been said about this horizontal division of legislative, executive, and judicial power that “[p]erhaps no principle of American constitutionalism has attracted more attention than that of separation of powers. It has in fact come to define the very character of the American political system.”[i] James Madison, among other Founders, deemed separation of powers “a first principle of free government.”[ii]
The reason why separation of powers is indispensable to democratic institutions was ably expressed by Justice Lewis Powell in the 1983 case of Immigration and Naturalization Service v. Chadha.[iii]
"The Framers perceived that “[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Theirs was not a baseless fear. * * * During the [period of the Articles of] Confederation, the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown."
Powell contiuned:
One abuse that was prevalent during the Confederation was the exercise of judicial power by the state legislatures. * * * Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and “[t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy.” The Federalist No. 48, p. 336 (J. Cooke ed. 1961) (emphasis in original) (quoting T. Jefferson, Notes on the State of Virginia 196 (London edition 1787)). * * * It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches.
Despite the importance of the separation of powers principle in preventing those abuses and the danger of tyranny potentially flowing from them, the Supreme Court—in Orwellian terms, the “more equal than others” branch—has frequently allowed one branch of government to invade the prerogatives of another, supposedly co-equal, branch.
Until September 11, 2001, the Republic could survive the ebbing and flowing of those power shifts. But as we’ll see later in this section, our nation’s security, perhaps its very existence, can no longer afford those shifts because essential presidential powers have been arrogated unto itself by the Supreme Court of the United States.
_____________________
[i] Wood, The Creation of the American Republic, 1776 – 1787, 151. The author, writing in 1969, nearly forty years ago, added in a footnote that “[t]he literature on separation of powers is enormous.”
[ii] Wood, The Creation of the American Republic, 1776 – 1787, 152.
[iii] 462 U.S.919, 103 S.Ct. 2764(1983).
Estelle v. Gamble
The Court’s invention of “prisoners’ rights”
The Eighth Amendment to the Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Some 163 years after the amendment’s enactment, in the case of Trop v. Dulles Chief Justice Earl Warren jettisoned the original understanding of the Cruel and Unusual Punishments Clause in favor of the Living Constitution’s “evolving standards of decency that mark the progress of a maturing society.”[i]
The befuddled and dangerous anti-separation of powers Cruel and Unusual Clause opinions that have resulted from Warren’s starry-eyed dismissal of the amendment’s English history, the rationale for the amendment’s inclusion in the Bill of Rights, the Court’s own earlier construction of the amendment, and state court interpretations of similar proscriptions, plague us to this day.
The plague began in earnest with the case of Estelle v. Gamble,[ii] an 8-1 decision of the Supreme Court.
J.W. Gamble was a Texas prisoner. During a work assignment, he allegedly hurt his back. Dissatisfied with the medical treatment he received, Gamble sued the prison warden and other prison officials for violation of his Eighth Amendment constitutional right not to be subjected to “cruel and unusual punishment.”
Justice Thurgood Marshall’s opinion for the Court noted that the Eighth Amendment “proscribes more than physically barbarous punishments,” that the government has an “obligation to provide medical care for those whom it is punishing by incarceration,” and that, thanks to Chief Justice Warren in the Trop case, this requirement is mandated by “contemporary” and “evolving standards of decency.”
Marshall then proceeded to fashion a test for evaluating prisoner allegations that their Eighth Amendment rights had been violated: Have prison officials shown “[1] deliberate indifference to[2] serious medical needs”?
Gamble was thus the first case to apply the Living Constitution’s “evolving standards of decency” double-talk to the medical care of prison inmates, via its new “deliberate indifference”/”serious medical needs” test. That was bad enough. Worse, is where the Gamble decision has led.
A decade-and-a-half later, the Court once again tinkered with the Eight Amendment’s Cruel and Unusual Punishments Clause. The case was Hudson v. McMillian.[iii]
As the result of a beating by guards, “Hudson suffered minor bruises and swelling of his face, mouth, and lip. Blows also loosened Hudson’s teeth and cracked his partial dental plate, rendering it unusable for several months.”
Predictably, prison inmate Hudson sued for violation of his Eighth Amendment-guaranteed civil right to be free of “cruel and unusual punishments.”
In her opening paragraph for the Court’s 7-2 majority, Justice O’Connor wrote:
This case requires us to decide whether the use of excessive physical force against a prisoner may constitute cruel and unusual punishment when the inmate does not suffer serious injury. We answer that question in the affirmative.[iv]
Justice Clarence Thomas, in dissent, saw the matter differently:
In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious [an actionable civil wrong], it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not cruel and unusual punishment.
Thomas then explained his principal reasons for reaching this conclusion, and in those reasons we see the damage done to interpretation of the Cruel and Unusual Punishments Clause by Warren’s Trop v. Dulles starry-eyed formulation about “evolving standards of decency”—and the worse damage done to separation of powers doctrine, as the Court once again in Hudson sat as a Super Legislature.
First, Thomas wrote, “[f]or generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner.” Indeed, Thomas reminded the majority, not until Estelle v. Gamble in 1976 had the Supreme Court ever applied the Eighth Amendment “to a prisoner’s complaint for a deprivation suffered in prison.”
Next, Thomas explained that when the Court “cut the Eighth Amendment loose from its historical moorings and applied it to a broad range of prison deprivations,” the quid pro quo was creation of the new test: official culpability (subjective) and serious injury (objective) had to be present.
He went on to expose the Hudson majority’s abandonment of the “objective” prong of the test:
The Court announces that “[t]he objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency.” * * * In the context of claims alleging the excessive use of physical force, the Court then asserts, the serious deprivation requirement is satisfied by no serious deprivation at all.[v] [According to the Court,] “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” * * * [According to the Court,] [a]scertaining prison officials’ state of mind, in other words, is the only relevant inquiry in deciding whether such cases involve cruel and unusual punishment.
Thomas disagreed, seeing “this approach [as] an unwarranted and unfortunate break with our Eighth Amendment jurisprudence.”
Justice Thomas’s Hudson dissent underscores that abandonment of the objective component—“serious injury”—of the Eighth Amendment’s “conditions of confinement” test in prisoner cases, substituting instead the empty liberal bromide “evolving standards of decency.” The majority decision opens prison doors wide to baseless inmate complaints. Inevitably, decision-by-bromide can only embolden the incarcerated population, cause prison wardens and guards to endanger themselves by altering their handling of prisoners, and clutter the courts with endless claims of “civil rights”/“cruel and unusual” violations.
This problem became evident during the Court’s next term, in a case entitled Helling v. McKinney.[vi]
A Nevada state prisoner, McKinney, sued his warden and other prison officials for violating the convict’s federal civil rights. According to Justice White, author of the Court’s majority opinion, McKinney’s complaint
alleged that [he] was assigned to a cell with another inmate who smoked five packs of cigarettes a day. * * * The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked . . . and that certain cigarettes burned continuously, releasing some type of chemical . . . . [Helling] complained of certain health problems allegedly caused by exposure to cigarette smoke.
Which of the inmate’s alleged federal constitutional rights were violated? Naturally, his right to be free from “cruel and unusual punishments,” as guaranteed by the Eighth Amendment. And not just free from immediate harm, but, as the Supreme Court read McKinney’s complaint, free from harm to the prisoner’s future health.[vii]
Again, Justice Thomas spoke for an interpretation of the Cruel and Unusual Punishments Clause that accorded with its original meaning, not the bloated interpretation given by the proponents of the Living Constitution, and one consistent with separation of powers doctrine.
He began by observing that in Hudson the Court had further expanded the Eighth Amendment by ruling that the provision is violated by a use of force causing only a minor injury. Now, in McKinney, the Court was expanding the Cruel and Unusual Punishments prohibition even more to embrace only risk of injury. Henceforth, under the Cruel and Unusual Punishments Clause, it would suffice for a prisoner to state a litigable claim simply by alleging that conduct by prison authorities caused (1) a mere risk of (2) minor injury.
Consistent with the only defensible approach to statutory interpretation, Thomas began with the words of the Eighth Amendment itself. In doing so, he cut to the heart of the Supreme Court’s indefensible, anti-separation of powers, Cruel and Unusual Punishments jurisprudence: The majority’s “decision, like every other ‘conditions of confinement’ case since Estelle v. Gamble . . . rests on the premise that deprivations suffered by a prisoner constitute ‘punishment’ for Eighth Amendment purposes, even when the deprivations have not been inflicted as part of a criminal sentence.”
In other words, if the Cruel and Unusual Punishments Clause barred only cruel and unusual punishments, because McKinney had not complained about those punishments he had no civil rights case or any other.
Thomas then convincingly demonstrated that “[a]t the time the Eighth Amendment was ratified, the word ‘punishment’ referred to the penalty imposed for the commission of a crime. * * * That is also the primary definition of the word today. As a legal term of art, ‘punishment’ has always meant a ‘fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him’.” Thomas found no historical evidence to the contrary.
Indeed, the “cruell and unusuall Punishments”[viii] provision of the English Declaration of Rights of 1689, the “antecedent to our constitutional text,” was a response to sentencing abuses.
Nor, in the considerable discourse concerning the formation of the Constitution and creation of the Bill of Rights, was there anywhere a suggestion that the concern over cruel and usual punishments included harsh prison conditions.
As a matter of fact, Thomas noted, the Founders had an example they could have emulated if they were concerned with harsh prison conditions. The 1792 Delaware (state) constitution expressly provided that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or[ix] unusual punishments inflicted.” However, the Delaware constitution continued, as the Eighth Amendment does not: “and in the construction of jails a proper regard shall be had to the health of prisoners.”[x] (From the perspective of constitutional interpretation, this historical fact is devastatingly convincing.)
In making these points, and by a surgical analysis of Estelle v. Gamble and its antecedent cases, Thomas was challenging the premise upon which the Supreme Court’s entire Eighth Amendment “conditions of confinement” jurisprudence had been built since Gamble was decided in 1976.
Although the evidence is not overwhelming, I believe that the text and history of the Eighth Amendment, together with the decisions interpreting it, support the view that judges or juries—not jailers—impose “punishment.” At a minimum, I believe that the original meaning of “punishment,” the silence in the historical record, and the 185 years of uniform precedent shift the burden of persuasion to those who would apply the Eighth Amendment to prison conditions.
The Supreme Court was at it again in the 1994 case of Farmer v. Brennan.[xi] A preoperative male transsexual who projected feminine characteristics made a “deliberate indifference” claim based on having been housed in the prison’s general population, and there assaulted and raped.
For the first time since the Gamble ruling in 1976, the Court defined “deliberate indifference”: “[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Because the Court believed the record from the trial court may not have adequately developed the facts, the case was remanded.
Thomas concurred with the remand, but his opinion reflects the concerns he expressed earlier in Hudson and Helling, and by implication about Estelle v. Gamble—concerns that should be shared by those who care about appropriate interpretation of the Constitution and the core principle of separation of powers.
The Court was again, according to Thomas, “refin[ing] the ‘National Code of Prison Regulation,’ otherwise known as the Cruel and Unusual Punishments Clause,” which is inappropriately applied to anything other than judicial punishment. What happened to Farmer—and it was certainly wrong—was not “punishment,” and thus the inmate, who may have had recourse under other laws, should have had no recourse under the Eighth Amendment.
Thomas did acknowledge, however, that “in approaching this case . . . we do not write on a clean slate. * * * Beginning with Estelle v. Gamble . . . the Court’s prison condition jurisprudence has been guided, not by the text of the Constitution, but rather by ‘evolving standards of decency that mark the progress of a maturing society.’” Although he “doubt[ed] that mode of constitutional decision making,” in the name of stare decisis he concurred in the Court’s judgment. But “[i]n doing so, however, [he] remain[ed] hopeful that the Court will reconsider Estelle in light of the constitutional text and history.”
If the Court ever gets into a reconsidering mood, it would do well to reflect on the structural allocation of separated powers that the Constitution provides, and take a step back from usurping legislative prerogatives under the guise of constitutional interpretation.
[i] Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590 (1958).
[ii] 429 U.S. 97, 97 S.Ct. 285 (1976).
[iii] 503 U.S. 1, 112 S.Ct. 995 (1992).
[vi] 509 U.S. 25, 113 S.Ct. 2475 (1993).
[vii] The Supreme Court sent the case back to the federal district court, “to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective [‘deliberate indifference’] and objective [actual injury] elements necessary to prove an Eighth Amendment violation.” In addition, on remand “the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.”
[viii] Thomas quoted the historically correct spelling.
[ix] The Eighth Amendment language is “cruel and unusual” punishments.
[xi] 511 U.S. 825, 114 S.Ct. 1970 (1994).
Morrison v. Olsen[i]
The Independent Counsel and the Chipping Court
The Law of Unintended Consequences was at work in the aftermath of the scandal known as Watergate, when the Ethics in Government Act of 1978[ii] was passed. One provision of the Act created a mechanism for the appointment of an Independent Counsel, and in the process dealt a serve blow to separation of powers in general and to the power of the President in particular.[iii]
Under the Act, if the Attorney General of the United States learned of information that was “sufficient to constitute grounds to investigate whether any person [to whom the Act applies] may have violated any federal criminal law,” the AG had no more than ninety days to look into the matter. Within that time, or if his preliminary investigation was completed sooner, he was required to render a report to a special panel of judges. If the AG determined there’s a lack of “reasonable grounds to believe that further investigation is warranted,” that’s what he was obliged to report to the judges. His decision not to go forward could not be challenged by the judges, nor was his decision reviewable by any court.
On the other hand, if the Attorney General found “reasonable grounds to believe that further investigation is warranted,” he then applied to the special panel of judges for the appointment of an “independent counsel.”[iv]
If that happened, the judges then had to “appoint an appropriate Independent Counsel and shall define that independent counsel’s prosecutorial jurisdiction.”
In this case, Morrison was appointed Independent Counsel with the jurisdiction to investigate whether the testimony given by Olson to a House committee, and any matter related to that testimony, violated any federal laws, including the perjury statute.
Eventually, a dispute arose between Morrison and the Department of Justice concerning the latter’s refusal to produce certain materials on the ground that they were beyond the Independent Counsel’s jurisdiction. The judges ruled that the jurisdiction they had given Morrison did encompass the materials she had asked for. Subpoenas were issued, and Olson moved to quash them on the ground that the Ethics in Government Act’s Independent Counsel provisions were unconstitutional.
The federal district court upheld the Act’s constitutionality.
The United States Court of Appeals for the District of Columbia reversed, ruling that the Act, considered in its entirety, violated separation of powers.
The Supreme Court reversed. While there were several issues upon which the Court disagreed with the Court of Appeals, we’re concerned here only with the separation of powers aspect of the decision.
The lone dissenter was Justice Scalia, whose opinion fully explains why the venerable principle of separations of powers was violated in the Morrison case, and why the Court’s decision was indefensible. His reasoning explains why Morrison is on my list of the fifty worst Supreme Court decisions
Scalia began his dissent by positing a bedrock principle of American constitutionalism, one that predated the United States Constitution itself:
It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:
“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
Building his argument, Scalia then invoked the Framers, especially Madison who wrote in Federalist 47 regarding separation of powers that: “no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.”
Justice Scalia then noted, as had Madison some two hundred years earlier, that even within the legislative branch the Congress itself reflected a separation of powers because that body was divided into two, the members of which were selected differently and the powers of which differed considerably.[v]
Not so the President’s powers under Article II. There is no textual dilution of his power, although during the framing of the Constitution there were proposals to do just that by having more than one executive or a council of advisors.
Having laid this groundwork, elaborately, Scalia then bluntly named what Morrison v. Olson was all about: in a word, “Power.” But more than that, Scalia recognized that a separation of powers issue can come to the Court “clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”
How so?
Because, according to Scalia,
by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates.[vi]
It’s hard to argue with Justice Scalia’s recitation of the case’s facts. Under the Act, it is virtually impossible for the Attorney General not to deem further investigations unwarranted, and once that happens and an Independent Counsel is appointed virtually everything that follows is effectively “beyond the control” of the Executive Branch, i.e., beyond “the President and his subordinates.” Indeed, Scalia made the point that merely to describe the facts of the case is to decide it, else, he wrote, “the concept of a government of separate and coordinate powers no longer has meaning.”
Adverting again to Article II, Scalia reminded the Court’s majority that the Constitution vested the executive power in the President: “As I described at the outset of this opinion,” Scalia wrote, “this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld [as the Supreme Court did not] on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?[vii]
No one can argue with the answer to Scalia’s first question. It is manifestly “yes”—so much so that the Morrison majority did not, indeed could not, refute it. Scalia continued:
As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute . . . .[viii]
For Scalia, and others who believe that separation of powers means that true executive power under Article II of the Constitution remain vested in the President, the majority’s recognition that in the Act Congress had deprived him of power should have swung the decision against the law’s constitutionality. As Scalia put the point,
it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that ‘[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.’ * * * It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether ‘the President's need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch’ as to require complete control . . . , whether the conferral of his powers upon someone else ‘ sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws’ . . . and whether ‘the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties” . . . . It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.[ix]
It is understandable that the majority was unable to answer Scalia’s arguments, rooted as they were in facts about what the Act said and how it operated, and rooted as well in the majority’s own concessions.
Nor did the majority deal with another salient point Scalia made: that the Court would have no difficulty finding a separation of powers violation if, for example, even a smidgen of judicial power was handed off to another branch of government—and no inquiry would be made about whether the Court retained sufficient other judicial powers. Article III requires all judicial powers to be vested in courts, and that’s that.
But a nibbling away at the power of the President, which we’ll see in the other cases discussed in this section, was acceptable to the Court—and Scalia’ eloquent final lament would not move his colleagues:
A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the “totality of the circumstances” mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. * * * This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that—as the text of the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed—all purely executive power must be under the control of the President.
The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive Power shall be vested in a President of the United States.”[x]
Predictably, Justice Scalia’s warning came true not only in Clinton v. City of New York, considered next, but in three recent decisions, considered below—decisions that were bad enough in themselves, but which beyond that reveal unbridled judicial arrogance impinging on textual and traditional presidential powers and, because they deal with Islamic terrorism, portend a dangerous threat to America’s national security, indeed its very survival.
___________________
[i] 487 U.S. 654 (1988).
[ii] 28 U.S.C. Section 591 et seq.
[iii] Even though the Independent Counsel law has expired, Morrison v. Olson still stands as precedent for the proposition that the Supreme Court—a “separated power”—can arrogantly chip away at presidential prerogatives.
[iv] Under the Act, Congress can remove an Independent Counsel, as can the Attorney General. But he can do so “only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such Independent Counsel’s duties.” Other provisions impose reporting requirements on the Attorney General if he removes an Independent Counsel, and allow the removed official to obtain reinstatement.
[v] For example, the House possesses the power to impeach and to originate money bills, and is elected from congressional districts within a state. The Senate is the “jury” in an impeachment proceeding, has to power to approve the President’s major appointments, and is elected statewide. There are hundreds of representatives, but only one hundred senators.
[vii] Emphasis in original.
[viii] Emphasis in original. Justice Scalia was just getting warmed up. He immediately followed the quoted statement with this: “. . . I cannot refrain from pointing out that the Court greatly exaggerates the extent of that ‘some’ Presidential control. ‘Most importan[t]’ among these controls, the Court asserts, is the Attorney General’s ‘power to remove the counsel for “good cause.” ’ * * * This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey's Executor v. United States . . . (1935)—indeed, what Humphrey's Executor was all about—limiting removal power to ‘good cause’ is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be ‘an agency of the legislative and judicial departments,’ and ‘wholly disconnected from the executive department . . . because “it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter . . . . What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the ‘most importan[t]’ means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the ‘good cause’ limitation as ‘protecting the independent counsel’s ability to act independently of the President's direct control’ since it permits removal only for ‘misconduct’.” Not content to let the majority’s arguments rest on this refutation, Scalia then addressed at length was he called the Court-identified “presumably ‘less important’ controls that the President retains” and demolished them just as handily.
[ix] Emphasis in original.
[x] Emphasis in original.
Clinton v. New York[i]
___The Line Item Veto and Out of Control Spending__
Two years after this case was decided by the Supreme Court of the United States, George W. Bush was elected President. Even though the spending binge that ensued substantially increased the deficit, not once did President Bush veto a money bill, even though many of them were unconscionably bloated with pork.
To understand the Clinton case and its consequences, it’s necessary first to look back into history.
In 1787, when the Constitution was promulgated, the idea did not exist that the President would possess the power to veto specific items in a bill sent to him by Congress. The simple reason is that at the nation’s birth, unlike today, “the problem of unrelated bills and riders, did not exist. Shortly before the Civil War, Congress first began the practice of attaching appropriation riders to bills. Then, the term ‘rider’ was developed, along with its corollary ‘line item veto’.”
Thus, in those days when a bill was sent from Congress to the President it dealt with a specific subject (e.g., the Alien and Sedition Acts), and the legislation was not burdened with unrelated expenditures or riders—like the disgraceful Alaska Senator Ted Stevens’s 2007 “bridge to nowhere.” Until about the mid-nineteenth century, President Washington and his successors could approve or disapprove a bill on its merits without having to consider collateral financial issues having nothing to do with the substance of the bill.
The vice of adding riders to bills is readily apparent. It puts the President in an all-or-nothing position. If he approves the bill, he’s also approving the pork. If to kill the pork he vetoes the bill, the substantive legislation goes down with the tacked-on pork.[ii]
The Line Item Veto Act was aimed at eliminating that problem, by allowing the President to cancel specific items related to Congressional appropriations. Specifically, the Act gave the President power to cancel items of new direct spending, and it expressly specified that a presidential cancellation nullified that provision.
In its 1997 term, the Supreme Court ruled that Members of Congress lacked sufficient personal interests to satisfy the “standing to sue” requirements of Article III, in their constitutional challenge to the Act.
Soon after, President Clinton exercised the authority given him in the Act by cancelling a section of the Balanced Budget Act of 1997, “which waived the Federal Government's statutory right to recoupment of as much as $2.6 billion in taxes that the State of New York had levied against Medicaid providers, and § 968 of the Taxpayer Relief Act of 1997, which permitted the owners of certain food refiners and processors to defer recognition of capital gains if they sold their stock to eligible farmers' cooperatives. Appellees, claiming they had been injured.”[iii]
Challenges to the cancellations were brought by the City of New York, two hospital associations, a hospital, two health care employee unions, a farmers’ cooperative, and one of its individual members.
When the case reached the Supreme Court the second time, in several different opinions it ruled that the new plaintiffs had standing to sue and that the cancellation provisions in the Act violated the “Presentment Clause” of the Constitution, which provides that: “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States . . . .”[iv]
The Court’s reasoning was that “in both legal and practical effect, the Presidential actions . . . amended two Acts of Congress by repealing a portion of each.”
Although under Article I Congress has the constitutional power to amend or repeal statutes,
"there is no constitutional authorization for the President [v] to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the President, who “shall sign it” if he approves it, but “return it,” i.e., “veto” it, if he does not. There are important differences between such a “return” and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of Presidential repeals as equivalent to an express prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” * * * What has emerged in the present cases, however, are not the product of the “finely wrought” procedure that the Framers designed, but truncated versions of two bills that passed both Houses."[vi]
In other words, the Court ruled that, in effect, the Act gave the President power to make law, by exercising his statutorily-granted power to cancel law enacted by Congress—a power at odds with the text of Article I and the understanding of those who promulgated it.[vii] As a result, a statute enacted by Congress and signed by the President—the Line Item Veto Act—was declared unconstitutional by the third branch of government, the Supreme Court of the United States.
The three dissents saw the matter differently.
Justice Scalia, joined fully by Justice O’Connor and partly by Justice Breyer, was one of the dissenters. Although Scalia discussed at length the standing to sue issue—concluding that some plaintiffs possessed standing, while others did not—his major contribution was on the merits. He wrote that he “would hold that the President’s cancellation of Section 4722(c) of the Balanced Budget Act of 1977as an item of direct spending does not violate the Constitution.”
Scalia reached his conclusion by beginning with the language of the Presentment Clause: ““[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it.”
For openers, that was enough for Scalia: “There is no question that enactment of the Balanced Budget Act complied with these requirements: the House and Senate passed the bill and the President signed it into law. It was only after the requirements of the Presentment Clause had been satisfied that the President exercised his authority under the Line Item Veto Act to cancel the spending item. Thus, the Court’s problem with the Act is not that it authorizes the President to veto parts of a bill and sign others into law, but rather that it authorizes him to “cancel”— prevent from “having legal force or effect”—certain parts of duly enacted statutes.”
Scalia was making an important point. The case was not about the Presentment Clause at all (because it had been complied with), but rather about whether in giving the President the power to cancel, Congress had delegated to him too much power—power that constitutionally had to repose only in the legislature. As Scalia put it, “the crux of the matter [is] whether Congress’s authorizing the President to cancel an item of spending gives him a power that our history and traditions show must reside exclusively in the Legislative Branch.” Scalia’s answer was “no”:
"The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead—authorizing the President to cancel an item of spending—is technically different. But the technical difference does not relate to the technicalities of the presentment clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President's action it authorizes in fact is not a line-item veto and thus does not offend Article 1, Section 7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union."[viii]
Justice Breyer, joined by Justices O’Connor and Scalia, also dissented on the separation of powers issue. Breyer “recognize[d] that the Act before [the Court] is novel. In a sense, it skirts a constitutional edge. The means chosen do not amount literally to the enactment, repeal, or amendment of a law. Nor, for that matter, do they amount literally to the “line item veto” that the Act’s title announces. Those means do not violate any basic separation-of-powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the President. Nor since they comply with separation-of-powers principles, do they threaten the liberties of individual citizens. They represent an experiment that may, or may not, help representative government work better. The Constitution, in my view, authorizes Congress and the President to try novel methods in this way.
At the end of the day, however, the majority for unconstitutionality prevailed.
As a result, the Clinton case stands as an example of how faulty analysis of the issue presented to the Court, and an equally erroneous resolution of that issue, resulted in a hyper-technical application of the separation of powers principle.
The vice of the Clinton v. New York decision is that henceforth the join adjustments of power between the political branches of government—legislature and executive—will not only be viewed suspiciously by the Supreme Court, but will in the bargain be subject to nullification by the judicial branch.
It looks like Orwell was right again—some branches are more equal than others.
Pre-September 11, 2001, our nation could survive an unchecked judiciary. Now, however, it is a very different story.
___________________________
[i] 524 U.S. 417, 118 S.Ct 2091 (1998).
[ii] See Nowak and Rotunda, Constitutional Law (seventh edition) Section 7.16, (henceforth, “Nowak and Rotunda”).
[iii] This quotation and others that follow in this chapter, unless otherwise indicated, are from the Supreme Court’s Reporter of Decisions’ Syllabus.
[iv] Article I, Section, Clause 2.
[v] Emphasis added.
[vi] Emphasis in original.
[vii] If that is what truly motivated the Court’s ruling, it explains why Justice Thomas joined Justice Stevens’s majority opinion.
[viii] Emphasis in original.
Hamdi v. Rumsfeld[i] :
Due Process and Enemy Combatants
At the end of its 2003-2004 term, less than three years after September 11, 2001, the Supreme Court of the United States decided its first national security case arising out of the Islamic terrorist attack on the United States.
The case was Hamdi v. Rumsfeld, a decision satisfactory in part but dangerously unsatisfactory otherwise.
The plurality (four vote) opinion was written by Justice O’Connor, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer.
Justice Thomas, though writing in dissent in support of the government on a related issue, thankfully provided the crucial fifth vote for the proposition that the President could legally designate Hamdi (an American citizen by birth) and others similarly situated as “enemy combatants”—fighters who can be held without charges being brought against them, and without being tried, until an armed conflict is ended.
To reach that result, the Hamdi plurality-plus-Thomas opinion relied on the World War II Supreme Court precedent of Ex parte Quirin, in which a unanimous Supreme Court held that the President could hold Nazi saboteurs (at least one of whom was an American citizen) for the duration of the war.
However, the fractured Hamdi opinions reveals what must have been serious horse-trading within the Court itself, because while that part of the Hamdi decision just described was certainly a victory for the President’s power as Commander-in-Chief to fight the Islamic terrorists, it came with an expensive price tag.
For the second part of the opinion—probably a compromise—another voting lineup emerged. It consisted of the original four-vote plurality (O’Connor, Rehnquist, Kennedy and Breyer), and now included Souter and Ginsburg (six votes), but without Thomas.
Although Souter and Ginsburg would have preferred Hamdi to go free unless the government charged him with a criminal act (even though he was an enemy combatant), they went along with the O’Connor-Rehnquist-Kennedy-Breyer ruling:
We hold that . . . due process demands that a citizen held in the United States [which included our leased base at Guantanamo Bay in Cuba] as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. . . . . Plainly, the “process” Hamdi has received is not that to which he is entitled under the Due Process Clause.
This conclusion was bad enough by itself, but how the Court reached it was even worse—especially because of the damage done to separation of powers doctrine.
The government agreed that the habeas corpus statute applied to Hamdi because he was detained within the United States, and it further agreed that he was entitled to some measure of procedural due process. Thus, the dispute was about how much.
O’Connor explained the parties’ positions this way:
"The Government’s . . . argument requires closer consideration. This is the argument that further factual exploration [of Hamdi’s specific situation] is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government’s most extreme rendition of this argument, “[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict” ought to eliminate entirely any individual[ized procedural due] process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. At most, the Government argues, courts should review [the government’s] determination that a citizen is an enemy combatant under a very deferential “some evidence” standard."
Under that standard, the Court’s focus is not on the specific circumstances of any given individual (e.g., where was Hamdi captured, was Hamdi actually engaged in combat, who was Hamdi allied with), but rather with the “factual basis supplied by the Executive to support its determination” concerning the overall scheme of “enemy combatant” designation and detention. This manner of judicial review asks that the Court “assume the accuracy of the Government’s articulated basis for Hamdi’s detention . . . and assess only whether that articulated basis was a legitimate one.” The Court’s focus would not be on a “balancing” of interests between the government and the enemy combatant, but rather would defer to the Article II power of the President.
Hamdi argued that the Court had consistently “recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive’s asserted justifications for that detention have basis in fact and warrant in law.”
So the Court decided to “balance” it out—procedural due process rights for [a citizen] enemy combatant, versus the Article II power of the President to defend the United States from Islamic fascists—and invoked the test enunciated in a case entitled Mathews v. Eldridge:
The process due in any given instance is determined by weighing “the private interest that will be affected by the official action” against the Government’s asserted interest, “including the function involved and the burdens the Government would face in providing greater process.” The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the “probable value, if any, of additional or substitute safeguards.”
Accordingly, employing this double-talking “test” in the context of America’s war with Islamic fascism and its captive foot soldiers, the Court then subjectively “balanced” Hamdi’s personal freedom against the national security of the United States, seeking to find some compromise between the two that would satisfy the amorphous constitutional requirement of procedural due process of law.
The right of an American citizen, under normal circumstances, to adequate procedures that would test his detention was, correctly, taken as a given. However, O’Connor recognized that:
On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. As discussed above . . . the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of war making belong in the hands of those who are best positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U. S. 518, 530 (1988) (noting the reluctance of the courts “to intrude upon the authority of the Executive in military and national security affairs”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587 (1952) (acknowledging “broad powers in military commanders engaged in day-to-day fighting in a theater of war”).
O’Connor also noted the government’s argument that “its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery [e.g., depositions] into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. To the extent that these burdens are triggered by heightened [due process] procedures, they are properly taken into account in our due process analysis.”
But noting an argument is not the same as accepting it, and the Court didn’t. After paying lip service to the United States being engaged in serious military campaigns, O’Connor put her thumb on the scales in Hamdi’s favor.
In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.
Not content merely to have engineered another one of her murky “maybe yes, maybe no,” “maybe this, maybe that,” opinions, O’Connor addressed the constitutional issue that was at the core of the case, separation of powers:
In so holding, we necessarily 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 of government. 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. * * * Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. * * * Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. * * * Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge.
Apparently recognizing that they had just opened Pandora’s due process box, the Supreme Court’s justice-legislators deigned to provide a tiny bit of guidance for the United States government that now faced the task of affording enemy combatants their days in court.
Perhaps, as Court suggested, “an appropriately authorized and properly constituted military tribunal” would be sufficient. That is, if the Court approved of how “appropriate” the authorization and how “properly constituted” the tribunal.
How about “testimony? “Hearsay,” said the Court, “may need to be accepted as the most reliable available evidence from the government in such a proceeding.” But then again, maybe not.
About the clearest requirement imposed by the Court was Hamdi’s and every enemy combatant’s right to counsel.
Immediately after the Hamdi decision came down, I predicted we would soon witness the obscene spectacle of Hanoi-lover Ramsey Clark, Islamist-lover Stanley Cohen, terrorist-lover Lynne Steward, and their ilk, “defending” enemy combatants in challenges to their status. (And that is exactly what has happened, thanks to the ministrations of the Lawyer Left aided and abetted by the pro bono efforts of some of the largest law firms in the United States.)
While one can’t seriously quarrel with the Supreme Court’s conclusion that American citizens captured in the United States have certain constitutional due process rights—even citizen “enemy combatants,” who can be held until cessation of hostilities—the Hamdi decision shoved the government down a slippery slope.
When the Hamdi decision came down, I predicted that the likes of Clark, Cohen, Stewart and their “progressive” colleagues would exploit the many uncertainties in the Supreme Court Hamdi decision. I raised questions like:
· How "meaningful" is the opportunity to contest?
· Is the enemy combatant limited to contesting the "factual basis" for his designation and detention, or can he make legal arguments?
· What does "neutral" mean?
· Must the "decision maker" be a judge?
· Is the adjudicatory process criminal or civil?
· Do enemy combatants have the right to an appeal, and if so where and to whom?
· Do rules of evidence apply, and if so which?
· Can the enemy combatant obtain discovery of the government’s case?
· Must he be given exculpatory evidence?
· What about other constitutional rights, like protection against self incrimination and double jeopardy?
· Are enemy combatants entitled to compulsory process and to be confronted by witnesses?
· How about being read their Miranda rights in some Afghanistan cave?
After all, due process is due process!
In the face of the O’Connor-Rehnquist-Kennedy-Breyer-Souter-Ginsburg opinion, and the strange-bedfellow dissent of Scalia and Stevens (who rejected entirely the “enemy combatant” designation, arguing instead that absent Congressional suspension of habeas corpus captured Americans should be charged as criminals), only Justice Clarence Thomas fully understood the real issue in Hamdi.
Thomas enunciated a consistently principled position: The power to designate captured Americans as enemy combatants lay with the President, and the courts had no role except to ascertain whether he had made a good faith determination.
Thomas’s dissenting opinion underscored two important considerations that this country, and the Supreme Court, must face as the war against Islamic fascism continues, probably for decades. One is the “balancing” methodology employed by the Court in considering the interests of those who wage war against us compared to the extent of government power required for our self defense. The other is the threat that the Hamdi decision has posed to America’s national security because of some justices’ view of separation of powers.[ii]
As to the former, Thomas rejected the analytical approach the Court used, based on Mathews v. Eldridge’s “test” for measuring procedural due process violations—the foundation case for the Court’s ruling, but one that, as Thomas reminded his colleagues, neither of the parties in their briefs cited even once.
However, even accepting Mathews as the litmus test, Thomas argued convincingly that still the balance should have come out in the government’s favor. He cited a case where the Court had ruled the Colorado governor’s “interest in the tranquility of a Colorado town” was “paramount,” and that “at issue here is the far more significant interest of the security of the Nation.”
The Government seeks to further that interest by detaining an enemy soldier not only to prevent him from rejoining the ongoing fight. Rather, as the Government explains, detention can serve to gather critical intelligence regarding the intentions and capabilities of our adversaries, a function that the Government avers has become all the more important in the war on terrorism. Additional process, the Government explains, will destroy the intelligence gathering function. It also does seem quite likely that, under the process envisioned by the plurality, various military officials will have to take time to litigate this matter. And though the plurality does not say so, a meaningful ability to challenge the Government’s factual allegations will probably require the Government to divulge highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets.[iii]
Concerned with the threat that the Hamdi majority decision posed to America’s national security because of some justices’ view of separation of powers, Thomas adverted to the Framers, to their understanding of the difference between domestic and military power, and to the necessity that the latter be in the hands of the President[iv]:
It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation. * * * The national security, after all, is the primary responsibility and purpose of the Federal Government. * * * But because the Founders understood that they could not foresee the myriad potential threats to national security that might later arise, they chose to create a Federal Government that necessarily possesses sufficient power to handle any threat to the security of the Nation. * * *
But where within that tripartite structure was the power “to handle any threat to the security of the Nation” to repose? According to Thomas:
The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. * * * These structural advantages are most important in the national-security and foreign-affairs contexts.[v]
In addition to the textual delegation of power to the President in Article II of the Constitution, Thomas noted that Supreme Court precedent as far back as the mid-1800s has held “that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion.”
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. . . . Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance . . . is a question to be decided by him.[vi]
The reasons the Founders vested Commander-in-Chief (and foreign affairs) power in the President were good ones, and they should have convinced the Court in the Hamdi case to cut the Chief Executive some slack in his detention of unlawful enemy combatants. According to Justice Thomas, “courts simply lack the relevant information and expertise to second-guess determinations made by the President based on information properly withheld,” and “even if the courts could compel the Executive to produce the necessary information, such decisions are simply not amenable to judicial determination because ‘[t]hey are delicate, complex, and involve large elements of prophecy’.”
Second-guessing the Commander-in-Chief early in a shooting war that could last decades and eventually affect the United States mainland (in even worse ways than September 11, 2001 presented) is not contemplated by the Constitution, by Supreme Court precedent, or by any rational analysis. That is why Justice Thomas alone concluded that “the Government’s detention of Hamdi as an enemy combatant does not violate the Constitution. By detaining Hamdi, the President, in the prosecution of a war . . . authorized by Congress, has acted well within his authority. Hamdi thereby received
all the process to which he was due under the circumstances.”
This view did not mean that Thomas was insensitive to Hamdi’s situation, or that those who believe enemy combatants are entitled to little or no procedural due process are heartless. Indeed, Thomas recognized that:
[u]ndeniably, Hamdi [an American citizen, but also an unlawful enemy combatant] has been deprived of a serious interest [freedom from restraint], one actually protected by the Due Process Clause. Against this, however, is the Government’s overriding interest in protecting the Nation. If a deprivation of liberty can be justified by the need to protect a town [as the Court had ruled in other cases], the protection of the Nation . . . justifies it.
While the Hamdi decision’s “designate-them-enemy-combatants-and-hold-them-until-the-end” conclusion is a plus for the President and those who want a dedicated war against Islamic terrorists, the due process part of the decision is a large minus. It will continue to hamstring this country in fighting what may well be a war for our survival.
[i] 542 U.S 507, 124 S.Ct. 2633 (2004).
[ii] The Court’s determination that enemy combatants are entitled to due process has, since the Hamdi decision was rendered in June 2004, resulted in the even worse Hamdan decision (discussed in Chapter 10) which struck down the then-existing military commissions, and the Military Commissions Act of 2006, which provided specific Bill of Rights-type protections to unlawful enemy combatants, but at least removed from them the right to obtain habeas corpus relief.
[iii] To the Court’s slicing and dicing of what it called “central functions of war making,” from which it excluded holding enemy combatants, Justice Thomas found it
“difficult to explain why the result should be different for other military operations that the plurality would ostensibly recognize as ‘central functions of war making.’ As the plurality recounts: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.’ * * * Because a decision to bomb a particular target might extinguish life interests [Hamdi’s interest was liberty, not life], the plurality’s analysis seems to require notice to potential targets. To take [an] example, in November 2002, a Central Intelligence Agency (CIA) Predator drone fired a Hellfire missile at a vehicle in Yemen carrying an al Qaeda leader, a citizen of the United States, and four others. See Priest, CIA Killed U. S. Citizen in Yemen Missile Strike, Washington Post, Nov. 8, 2002, p. A1. It is not clear whether the CIA knew that an American was in the vehicle. But the plurality’s due process [analysis] would seem to require notice and opportunity to respond here as well. I offer [this example] not because I think the plurality would demand additional process in these situations but because it clearly would not. The result here should be the same.
I realize that many military operations are, in some sense, necessary. But many, if not most, are merely expedient, and I see no principled distinction between the
military operation the plurality condemns today (the holding of an enemy combatant based on the process given Hamdi) from a variety of other military operations. In truth, I doubt that there is any sensible, bright-line distinction. It could be argued that bombings and missile strikes are an inherent part of war, and as long as our forces do not violate the laws of war, it is of no constitutional moment that civilians might be killed. But this does not serve to distinguish this case because it is also consistent with the laws of war to detain enemy combatants exactly as the Government has detained Hamdi.
[iv] Interior quotation marks and citations have been deleted.
[vi] Prize Cases, 2 Black 635 (1863).
Rasul v. Bush[i]
Enemy combatants and Habeas Corpus
As undercutting as the Hamdi decision was of the separation of powers principle, and as harmful to America’s war with Islamic terrorism it was, the Rasul v. Bush decision was even more damaging to both. Especially since it exposed the liberal justices for the connivers they are when it suits their purposes.
Unlike Yaser Hamdi, Shafik Rasul was captured fighting against the United States outside our borders.
He was incarcerated at the Guantanamo Bay naval base and eventually sought habeas corpus relief to challenge his detention. We know from the Hamdi decision that an enemy combatant could seek habeas corpus relief, and that he would enjoy certain procedural due process rights.
The question in Rasul v. Bush waswhether alien enemy combatants held outside of the United States—i.e., in Cuba, on an America leasehold base—could seek habeas corpus relief.
Writing for a five-justice majority, Justice Stevens, joined by Justices O’Connor, Souter, Ginsburg and Breyer (Justice Kennedy concurred in the result, and Justice Scalia dissented joined by Chief Justice Rehnquist and Justice Thomas), noted that: “The [trial] court held, in reliance on our opinion in Johnson v. Eisentrager . . . that ‘aliens detained outside the sovereign territory of the United States [may not] invoke a petition for a write of habeas corpus’.”
In other words, the federal district court from which enemy combatant Rasul had initiated his petition for habeas corpus considered itself bound by Supreme Court precedent.
This is crucial to understand: Eisentrager had held that “aliens detained outside the sovereign territory of the United States [may not] invoke a petition for a write of habeas corpus.”[ii]
Rasul then appealed to the United States Court of Appeals for the District of Columbia Circuit.
According to Supreme Court Justice Stevens, “[t]he Court of Appeals affirmed. Reading [the Supreme Court’s earlier] Eisentrager [decision] to hold that ‘the privilege of litigation’ does not extend to aliens in military custody who have no presence in ‘any territory over which the United States is sovereign’ . . . it [the Court of Appeals] held that the District Court lacked jurisdiction over petitioners’ habeas actions . . . .” In other words, the Court of Appeals, too, properly deemed itself bound by the Supreme Court’s Eisentrager precedent.
But while the federal district courts and the federal courts of appeal are bound by Supreme Court precedent, the High Court itself is not—despite the venerable and sound principle of stare decisis.
Stevens’s ruling for the Supreme Court majority in Rasul was that: “The Court today holds that the habeas corpus statute, 28 U.S.C. Section 2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts.”
In other words, the Hamdi decision had ruled that enemy combatants could seek habeas corpus relief, and also invoke certain procedural due process rights yet to be determined. Now, the Rasul decision was allowing them to seek habeas corpus relief anywhere in the world they may be “detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdiction of all its courts.”
This was truly an incredible and indefensible decision, for at least two reasons.
First, the majority dishonestly de facto overruled Eisentrager but without the courage to admit what it was doing.
Second, the Court cast its micromanagement of America’s war against Islamic terrorism in constitutional terms, thereby not only again doing violence to separation of powers doctrine, but at the same time empowering legions of lawyers to do the bidding of enemy combatants who would soon be wrapping themselves in constitutional protections.
In dissent, Justice Scalia, for himself, Chief Justice Rehnquist and Justice Thomas, wrote that:
This is not only a novel holding; it contravenes a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager . . .. The Court’s contention that Eisentrager was somehow negated by [the Braden case of 1973]—a decision that dealt with a different issue and did not so much as mention Eisentrager—is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.
The speciousness and indefensibleness of Rasul, the nature and scope of that decision, and the danger it then posed to America in general and our war against Islamic terrorism in particular, was eloquently laid bare by Scalia’s lengthy and comprehensive dissent.
Scalia began by stating the necessarily obvious: “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” (Were it so in practice!)
That brought him to the habeas corpus statute—“a text the Court today ignores,” said Scalia—and what it says about federal jurisdiction: “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” [iii] Other sections of the habeas corpus statute made it plain that it “could not be clearer that a necessary requirement for issuing the writ [of habeas corpus] is that some federal district court have territorial jurisdiction over the detainee. Here, as the Court allows, the Guantanamo Bay detainees are not located within the territorial jurisdiction of any federal district court. One would think that is the end of this case.”[iv]
One would think so! But not so fast. The Rasul majority claimed that the Supreme Court had in earlier cases interpreted the statutory terms “within their respective jurisdictions” in a manner broad enough to embrace Cuba’s Guantanamo and, for that matter, anywhere else in the world.
But not according to Scalia:
The reality is this: Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on [the earlier] Braden [case] the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees.
Worse even than this, according to Scalia’s unanswerable argument, was that:
[i]n abandoning the venerable statutory line drawn in Eisentrager, the Court boldly extends the scope of the habeas statute to the four corners of the earth. * * * The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a [habeas corpus] petition against the Secretary of Defense. Over the course of the last century, the United States has held millions of alien prisoners abroad. * * * A great many of these prisoners would no doubt have complained about the circumstances of their capture and the terms of their confinement. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each detainee undoubtedly has complaints—real or contrived—about those terms and circumstances. The Court’s unheralded expansion of federal-court jurisdiction is not even mitigated by a comforting assurance that the legion of ensuing claims will be easily resolved on the merits. To the contrary, the Court says that the “[p]etitioners’ allegations . . . unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States.’ From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.
At the end of this portion of his scathing dissent, Scalia’s indictment of the majority opinion adverted to the Eisentrager case:
Today’s carefree Court disregards, without a word of acknowledgment, the dire warning of a more circumspect Court in Eisentrager: “To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation for shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever wit-nesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to ac-count in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to enemies of the United States.” These results should not be brought about lightly, and certainly not without a textual basis in the statute and on the strength of nothing more than [an inapplicable precedent].
Despite the cogency of Scalia’s dissent, the majority was unmoved. In typical liberal fashion, once the Stevens majority opinion had wreaked havoc on the President, the military and the country, the majority justices—with typical ivory tower detachment—simply walked away from the potential consequences of their decision. Steven dismissively noted that: “Whether and what further proceedings may become necessary after [the Government] make[s] their response to the merits of [the Guantanamo] detainees’ claims are matter we need not address now.”
Indeed!
But unlike the cloistered liberals of the Supreme Court—irony: four of the six justices in the Stevens majority were appointed by Republican presidents—the rest of America had to face the music then and there. Armed with the Supreme Court’s Hamdi (due process/habeas corpus) and Rasul (habeas corpus anywhere and everywhere) decisions, and aided and comforted by radical and useful idiot lawyers, the flotsam and jetsam of Guantanamo Bay, and perhaps other enemy combatants held from Afghanistan to who-knows-where-else, were now able to forum shop among our ninety-four federal judicial districts in search of judges sympathetic to tales of mistaken identity and religious persecution—anything to justify the habeas corpus petitioners’ release.
Thus did the Supreme Court liberals, aided and abetted by the turncoat O’Connor and the inconsistent Kennedy, open the doors of every federal district court in the United States to the Guantanamo detainees, many of them killers captured on the battlefield and elsewhere around the world, their murderous hands at least figuratively, and sometimes literally, soaked with the blood of Americans, our allies, and innocent civilians.
It matters little that subsequent federal legislation sought to invalidate the Rasul decision—the legality and constitutionality of the post-Rasul legislation is currently before the Supreme Court in the case entitled Boumediene v. Bush—because Rasul demonstrates once again, dramatically, how liberal judges can overrule important precedents, violate the separation of powers principle, and endanger our national security, without even a nod to the consequences of what their dishonest partisan conduct may bring to real Americans who do not live in the Ivory Tower.
[iii] Emphasis in original.
