Power of the Presidency, Marbury, and Torture

A question has arisen in comments about the question raised by Professor Yoo about whether these actions are such that Congress could regulate the President and his use of force.

We are concerned not really with what the President does, but in what circumstances the Court can tell the Executive that it has overstepped its bounds, and is taking unconstitutional actions. The question then, is not really the role of the Executive, but the role of the Court to constrain the Executive.

This, of course, is Marbury v. Madison. Marbury stands for the proposition that it is the role of the Court to decide which branch or body is to say what "The Law" is. Marbury means that the Court acts as a mediator among the actors of the government under the Constitution and, in the words of our dear Professor Monaghan, "allocat[es the] functions" of these bodies.

Note that this does not mean that the Court is to pass independent judgment on these bodies' actions. There is no "one form of review" that the Court exacts on legislative or executive action.

Consider, for example, Marbury (refusing to adopt a reasonable interpretation of Article III), Chevron (adopting a reasonable interpretation of a statute by an agency), Curtiss-Wright (refusing to scrutinize executive action in foreign affairs), Katzenbach (allowing Congress to adopt a reasonable interpretation of the equal protection clause (subsequently overruled)), and City of Boerne (refusing to defer to a reasonable interpretation of both Section 5 of the FOurteenth Amendment and the Free Exercise Clause). In each of these cases, the question for the Court is how closely to scrutinize the government--legislature or executive. Sometimes the Court defers to reasonable interpretations, sometimes exacts independent judgment.

This decision of the scope of review is dependent on the structure of the constitution and where it vests powers. Just a couple examples:

The Constitution vests regulation in Congress. The Court's role is not to decide how it would regulate, but to decide how Congress did regulate. Assuming that Congress isn't violating other parts of the Constitution, it should, then, pull all the meaning for "The Law" from the statute, not itself. Complete deference to Congress when acting within its powers. (Tribe, American Constitutional Law)

When Congress vests some of this power in an agency, the role of the Court is not to provide the meaning, but to make sure that the Agency is acting within the scope of its delegated authority, within its powers as vested. Complete deference within that scope. (Chevron; Monaghan, Marbury and Admin State)

The political question doctrine is merely a determination that the question asked is one that the Constitution directs the President to answer. The Court determines only that this is, in fact, a question for the President, and if it is, complete deference. (Henkin, Is there a Political Question)

So, the question for judicial review of Presidential actions in the war on terror--internment, torture, etc.--is the extent to which these actions are constitutionally-committed to the President such that they are not open for judicial review.

This is the discussion I would like to begin, both among fellow contributors and those who wish to comment.

I don't have the answer, only (I think) the question. My guess is that the regulation of prisons full of POW's and terrorists is something that is very tied to the Commander in Chief power, and something that the Courts, and the legislature for that matter, should not be in the business of regulating. Youngstown constrains these powers in their use against citizens, but I think POWs, and especially non-state terrorists should fall outside Youngstown's holding.

Anyway, comments welcome.