Constitutional Law October 8th, 2009 ? Notes Executive Power and Detention (Part 1) -Due Monday: Briefs (2), Short paper topic (handout) -Questions for the day: 1) What is the extent of Executive power to detain during war or national emergencies crises? 2) Can the Executive deny federal courts jurisdiction in these cases? How deferential are the courts to the executive branch? 3) What are the different theories of executive power today? -Youngstown Sheet and Tube Co. -Jackson: concurring Three ways presidents can act -1) Congressional approval -2) Limited areas without congressional approval -3) Enumerated powers -New York Times v. U.S. -Opinion: per curiam -Black and Douglass: President has no power to restrict 1st Amendment absent some Congressional directive -Brennan: 1st Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances such as these -Stewart and White: Functioning democracy must avoid secrecy for its own sake; standard for ?prior restraint? is very, very high -Marshall: Executive cannot make laws, separation of powers -Dissent: (Burger, Harlan, Blackmun): -First Amendment should be weighed against important powers of Executive -Where do these cases leave exec power vis-à-vis actions in the name of national security? -On the one hand: Supreme Court consistently affirms executive power of Executive in foreign affairs Constraints are almost entirely Congress? hands -On the other hand: Supreme Court objects to Executive claim of powers that Congress has not agreed to and to the idea of unfettered secrecy/decision-making -Ex parte Milligan (1866) -Where does Exec derive authority to institute military tribunals in non-rebel state with civilian courts still operating? -Government needs capacity to respond to crisis threats BUT martial law destroys guarantees of a Constitution, threats must be real Lincoln set up military courts to try Confederate sympathizers -Milligan says this is unconstitutional -Court agrees with Milligan, but affirms that President has emergency powers -Habeas Corpus - (?You have the body?): legal action through which a person who is being detained by government can seek relief from unlawful detention Government must produce you, so you can challenge the conviction Limits government from taking people without any kind of justification Originates from the Magna Carta -1215; 1305, first recorded use in England Noblemen placed limits on the King?s power -Habeas Corpus Act of 1679 (England) -?Los desaparecidos? (the disappeared) ? people taken away by the government never to be heard from again (repressive Latin American military dictatorships) -Two Sources of habeas corpus: statutes and Constitution -Statutory habeas stems back to Judiciary Act of 1789, granting federal courts right to issue writs -Constitutional habeas: Article I, Section 9 -The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it -Korematsu (1944) 6-3 -Facts: Korematsu, U.S. citizen of Japanese descent, refused to abide by a government order mandating he be excluded to a detention camp -Legal Question: Is it constitutional for President to make an exclusion order based on race? -Opinion: (Black) -Pressing public necessity sometimes justifies curtailment of rights -Wartime requires sacrifice -Congress gave Executive broad discretion to fight the war -Military/Executive branch believed some Japanese may be disloyal, feared invasion -?We are dealing with nothing but an exclusion order? -Frankfurter (concur): War powers sufficient to justify -Murphy (dissent): The very logic that because you are part of a group in which one person may be disloyal, makes other individuals of that group suspect, is at the heart of the tyranny?s the U.S. is pledged to fight -Individual disloyalty does not prove group disloyalty -Under the Constitution, only justification for deprivation of rights is individual action
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