Shared Flashcard Set


The Top 15 War Powers Cases
War Powers
Political Studies

Additional Political Studies Flashcards




Bas v Tingy (1800)
-first time SCOTUS makes distinction between total/impartial, perfect/imperfect war
-whether impartial/imperfect, it's still war
-Congress can pass acts regarding conduct of war without declaration of war, but it would be a limited war
Little v Barreme (1804)
-POTUS can't excuse Little because his job is to execute the laws, the law didn't explicitly allow for the seizure of boats returning from enemy ports
-Adams issues orders that are broader than the law
-spirit of the letter vs. letter of the law (letter wins)
-Congress acted, POTUS must abide by it
Durand v Hollins (1860)
-circuit court case
-vesting clause, take care clause, commander in chief all cited
-overt argument that citizens outside of your country, your rights follow and you look to your POTUS for protection
-up to POTUS discretion how to protect citizens abroad, the decision is file inconclusive
-justified for the Commander to giver orders via Secretary for the Navy via POTUS
-executive discretion (Marbury v Madison)
Ex parte Merryman (1861)
-Lincoln suspends Habaeus Corpus, but Congress had not passed it yet
-debate compares Lincoln to british Kings
-POTUS under COTUS cannot suspend this, it's in Art I not Art II
-military officer cannot arrest a person who is not subject to rules and articles of war except in aid of civil authority when person committed offense against US
Ex parte Milligan (1866)
-opinion is 9-0, 5-4 split on the argument
-overall, they opinion that he was not indicted by a grand jury and must be freed. Congress had the authority and passed legislation (Habeas Corpus Act of 1863 gives them authority.)
-5: civilian courts open so no military trials for civilians.
-5: Congress could grant no such power to a military tribunal.
-4: the military courts courts could try civilians if civilians are unequal/incompetent to the task. Why? proof beyond a reasonable doubt & unanimity on a jury required for civil cases.
-4:Military courts make and execute decisions within 1-2 days.
-4: Congress has the power to maintain army and navy and declare war. To bring a nation to War, so it has the powers to succeed in going to war. It would necessarily follow it has the authority to provide military tribunals because they are necessary to succeed.
-5: Unlike the 4, the majority ground the military tribunals in necessity. The 4 ground it in COTUS and Congressional authority.
U.S. v Curtiss-Wright Corp (1936)
-Congress delegates authority to POTUS to impose an embargo, which he does through an embargo
-Does the POTUS have broad executive authority to conduct foreign affairs?
-foreign affairs power (federative power) doesn't come from COTUS, it comes from nature of sovereignty
-POTUS domestic power comes from Art. I, Sec. 8
-national government is sole representative of country in international relations with POTUS acting as sole organ, why?
1. he receives ambassadors
2. treaty making power
3. Commander in chief
-For Pacificus, it's the vesting clause that POTUS gets the vesting clause
Hirabayashi v U.S. (1943)
-curfew case
-9-0 Congress can delegate legislative power to the military
Korematsu v U.S. (1944)
-there's really a military need, it's not racism. Even though Justice Black says they must use the most strict scrutiny, Black is mostly differential to the other branches.
-Frankfurter is strongly deferential and thinks the exclusion is necessary for conducting war: "that is their business, not ours".
-Frankfurter's concurrence in Korematsu is similar to the argument for the ability of Congress to do what is necessary to be successful in war. Was powers are just as legitimate as peace powers.
-Murphy: this is legalization of racism. There should be individual hearings, the alternative is individual guilt/disloyalty.
-Jackson: mirrors Frankfurter's dissent. SCOTUS can't judge military. What majority is doing is distorting COTUS--it's not the Court's business to decide.
-Out of the three dissenters, Murphy and Jackson applied their own test and found what was done was unreasonable. Jackson (3rd) argues Court should not intervene in military matters and that intervening gives too much power to military for next POTUS to use, SCOTUS just made it legal! Bad COTUS law is dangerous. (Similar to the majority in Milligan)
Endo v U.S. (1944)
-government cannot detain citizen when government admits she is loyal
-comes out on same day as Korematsu
Steel Seizure Case (1952)
-6-3 on holding, 5-1 on opinion
-no law for the authority Truman claims to have
-intrinsically a legislative power to seize steel mills and POTUS didn't go to Congress (is it really legislative?)
-Truman doesn't think he needs authority of Congress, but he admits he will defer to Congress
Jackson's concurrence on the Steel Seizure Case
-first, critique of comprehensive and undefined presidential power
-he doesn't start with COTUS, he start with historical materials that lead to executive power
-you can't take out single clauses or even single Articles, you must look at COTUS entirely, otherwise, it's too narrow. The President's powers are not fixed, but fluctuate depending on relationship with Congress (this is presumably why he doesn't start with Art. II).
-Three distinctions of how the POTUS & Congress interact:
1. When POTUS acts pursuant to Congressional act, POTUS power is at its greatest. (ex. U.S. v. Curtiss-Wright)
2. TWILIGHT ZONE: Powers may overlap. Hard to tell.
3. When POTUS acts contradictory to Congressional Act, POTUS power is at its lowest.
-When there is an overlap, there is not going to be a lot of theory or law regarding what to do.
-Twilight zone might contain 4th category of independent presidential powers.
-When there is a dispute, Congress wins over POTUS. Always. Hints at legislative supremacy in section 1. But why? framers didn't intend that.
Ex parte Quirin (1942)
-9-0 opinion
-Is Milligan opinion applicable? No. The facts differed enough by way of spies and sabateurs. Milligan was a civilian and couldn't be tried in military courts. These people aren't civilians and they are unlawful belligerents.
-Lawful vs. Unlawful belligerence. It came down to wearing the uniform or not (uniform = enemy combatant, no uniform = spy).
-Statutory basis = Articles of War, so military tribunal is okay.
-Quirin overturns broad principle that you can never have military courts for U.S. citizens when civil courts are open as established by Milligan.
-POTUS might have been able to authorize military commissions because he is commander in Chief, but SCOTUS doesn't need to answer that broad question yet.
-All 8 agree that given what Articles of War say, there's no ground to grant writ of HC, but there's a split: First Group - Articles of War don't apply to enemy belligerents, military commissions are under POTUS authority. Second Group - POTUS acts are consistent within acts of Congress, including Articles of War.
Hamdi v Rumsfeld (2004)
-When rights does an American citizen detained as enemy combatant have?
-Majority: doesn't want to undermine POTUS authority to wage war well, but people still have rights
-Court decided those rights should be fair notice and opportunity to rebut before a neutral decisionmaker
-Some concessions are made to the executive still: hearsay evidence is allowed & presumption is now in favor of the government (proof of burden is now on defendant)
Hamdan v Rumsfeld (2006)
-majority fiercely comes out against administration
-SCOTUS isn't afraid to interfere
Prize Cases (1863)
-cases were brought to recover damages suffered by ships carrying cargo to Confederacy, which had been damaged by raids from the U.S.
-Did a state of war exist at the time the blockade was instituted that would justify it?
-5-4 yes, but very close
-although civil war was not proclaimed in name, its actual existence was known
-vesting clause, take care clause, commander in chief all to POTUS
-POTUS has the authority to prosecute the war, not declare it
Supporting users have an ad free experience!