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Friday, April 29, 2005

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.

20 Comments:

Blogger David Schraub said...

Commented upon

8:01 PM  
Blogger Publius said...

David, I like your comments. One concern:

Hence, if the president, in the course of his war-fighting acts, violates a constitutional right, then the court's can legitimately restrain the action.

You're assuming that the Court's interpretation of constitutional rights is "The Law." But I disagree. This was my point with the Marbury discussion. Each branch interprets the Constitution, and the Court decides whose interpretation wins the day. And in the war-fighting context, it is often the case that what the President thinks the Constitution (Equal Protection, Due Process clauses) means is the interpretation that is deferred to. See, e.g. Korematsu/Padilla/Hamdi/Rasul.

Now, I don't think Korematsu is good law on its facts. That is to say, the President's interpretation of the EPC as not banning interment of large groups of people based on their nationality is not within the scope of how he or she can legitimately construe the EPC. But it is good law to the extent that it mandates some level of deference to the President in foreign affairs and war.

And consider the Gitmo cases. They all intrude more than Korematsu, but they do not exact independent judgment. The Executive's interpretation of what DP or EP is required at least partially wins the day.

So, when you say that the President cannot violate constitutional rights in his or her fighting of the war, you need to be saying that he or she cannot exceed the scope of the interpretation vested in him or her. And this is different from violating the Court's interpretation of the Constitution.

9:10 PM  
Anonymous JDMcKay said...

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.

"full of POW's and terrorists"... hmmm. And your use of "regulating", IMO, is incorrect.

Be that as it may, it seems like you're attached to a notion("should not be in business of"), but not so thoughful of the circumstance to which it applies(eg. "full of POW's and terrorists").

Given the context of your post (eg: Power of the Presidency, Marbury, and Torture), I would point out that the vast majority of folks who both disagree w/your "guess" and have followed this closely from the beginning, most strenously object to the seemingly indiscriminate presidential classification of "prisoners" (illegal combatents) while there is significant evidence many of these people do not meet the definition. Indeed, it seems there has not only been little effort to validate people so classified (as CIA/Pentagon reports on GITMO have said), GWB has argued before SCOTUS they were not responsable for doing so: it is the president's perogative to so classify... period.

This, I would hope, would give thoughtful people pause.

Anyway, I don't like that. And SCOTUS doesn't either it seems, given they've thumped GWB's argument every single time. Not to mention, many...many have proven to be innocents, soley as a product of their petitioning despite GWB's claim they should not be allowed to do so.

Youngstown constrains these powers in their use against citizens, but I think POWs, and especially non-state terrorists should fall outside Youngstown's holding.

why? Can you cite/explain a principle?

9:20 PM  
Blogger Publius said...

[T]he vast majority of folks who both disagree w/your "guess" and have followed this closely from the beginning, most strenously object to the seemingly indiscriminate presidential classification of "prisoners" (illegal combatents) [sic] while there is significant evidence many of these people do not meet the definition. Indeed, it seems there has not only been little effort to validate people so classified (as CIA/Pentagon reports on GITMO have said), GWB has argued before SCOTUS they were not responsable [sic] for doing so: it is the president's perogative to so classify... period.

Two points: 1) I didn't mean to suggest my "guess" was a complete answer, something I thought implicit in the word "guess." 2) My post was meant to frame the issue, not in any way to support anything GWB has done. I'm a federalist, not a Bushist.

I certainly agree that there's a strong argument that the classification of someone as an enemy combatant is something the Court should do. If there's a structural difference between the President's regulating of citizens and non-citizens (as Youngstown suggests) then I think this is precisely what the Court should decide. The Court classifies the individual, and then awards the President the appropriate deference.

As to Youngstown, the principle is that in the case, the President was regulating the domestic market, not the fighting of the war. So whereas he or she has great powers in foreign affairs and war, when dealing domestically, the Court does not award such significant deference. So, the argument with the detainees would go, the President gets deference in dealing with the foreigners (POWs, terrorists), but less deference when dealing with citizens.

Your characterization of GWB getting thumped is correct, but entirely incomplete. For purposes of this discussion, what is important from those holdings is not who won or lost, but that the Court did not exact independent judgment, awarded some deference. The principles of deference are exactly what we're concerned with

9:38 PM  
Blogger David Schraub said...

Now, I get the distinct feeling that you and I disagree on what Marbury stands for. That's a battle we can wage another day, I think. But let's take a look at this "partial deference," because I think that is what's key here.

I think the way "partial deference" comes about is when you have an abstract grant of power to one body that, as applied, ventures into territory held by another body. For example, the President can order the 101st Airborne around. That is entirely within his realm, and courts cannot touch it. If the President orders the 101 to burn down Detriot and torch all its inhabitants however, then the courts I think might legitimately have something to say. What we get, then, is that the president has total power to act once you get past constitutional restrictions. In the context of Hamdi and Al-Odah, it means that the President can do whatever he wants to these POWs/Detainees/Enemy Combatants (etc etc) as long as it doesn't violate their legal rights. The President can't starve them (IE, the courts can restrain him from starving them), but they can't question (give deference to) his decision to feed them bananas versus beefaroni.

The President cannot just assert the constitution means something it doesn't. You conceded that if these actions were taken against citizens, they'd clearly violate the bill of rights. Insofar as the applicable portions of the bill of rights applies to "persons", the president, if I may say so, is talking out of his ass. The court's are under no obligation to defer to the executive making random stuff up.

1:54 AM  
Blogger Publius said...

When you say "The President cannot just assert the constitution means something it doesn't," what you're really saying is that when a Court is faced with having to decide on the validity of a government action under the Constitution, what the President says the Constitution means does not matter; we must adopt the independent judgment of the Court.

This, however, is wrong. See, e.g. Korematsu; Political Question doctrine.

To be sure, there is no "objective" meaning of the Constitution. It only gains meaning when it is interpreted. Who is, and in what circumstances they are, to interpret the Constitution is found in the structure and relationships of the Constitution. This is Marbury.

An excellent article that explains this is Henry Monaghan's Marbury and the Administrative State.

Now, this does not mean that the Court can't grant deference to the President for rational interpretation of his or her war powers, but deny deference when he or she is dealing with U.S. citizens. But this is not "independent judgment," does not mean that the President has no power to interpret the Constitution. It only means that the Court is policing the boundaries of the authority delegated to him or her by the Constitution and deciding that detention of citizens is not within what the structure of the Constitution delegates to the President. This policing is emphatically the duty of the courts.

7:42 AM  
Anonymous JDMcKay said...

As to Youngstown, the principle is that in the case, the President was regulating the domestic market, not the fighting of the war. So whereas he or she has great powers in foreign affairs and war, when dealing domestically, the Court does not award such significant deference. So, the argument with the detainees would go, the President gets deference in dealing with the foreigners (POWs, terrorists), but less deference when dealing with citizens.

and interestingly (or not), GWB chose GITMO (eg. offshore) as site to house "enemy combatants". In SCOTUS pleadings, they have argued both sides you present, as it suits them. They have also witheld inmates from both IRC & congressional oversight. And I would add, they've charged their own Islamic GI's twice with spying, in both cases turning out to be by non-existent evidence. Still, they proceeded with what appeared to be retaliatory charges which looked a lot like saving face.

Hmmm...
Your characterization of GWB getting thumped is correct, but entirely incomplete. For purposes of this discussion, what is important from those holdings is not who won or lost, but that the Court did not exact independent judgment, awarded some deference. The principles of deference are exactly what we're concerned with.

only if one wants to make "principles of deference" absolute. AFAIC, this should never, ever be the case.

I'd also point out that SCOTUS instructed GWB that GITMO "illegal combatents" were constitutionally guaranteed due process. GWB then proceeded an attempt to fullfill this requirement by military court proceedings at GITMO. The detainees were not allowed to see the evidence against them, speak to their lawyers in advance of hearings, nor summon witnesses. SCOTUS has called them on this.

Point being, if Presidential (or anyone else's) actions are unconstitutional, then they are unconstitutional. Period. When person/agency/??? executing these actions displays repeated disregard for the principles involved, then we have problems.

In other words, we have problems.

4:17 PM  
Blogger Publius said...

JDMcKay, What is it that you're saying with regard to S.Ct. review? Must the Court always pass independent judgment on Congress/Executive/Agencies' actions? I assume that is what you mean when you say "if Presidential (or anyone else's) actions are unconstitutional, then they are unconstitutional. Period." Because an action isn't just "unconstitutional." It has to be unconstitutional according to someone. You seem to be saying that it is always the Court that decides. Is this right?

6:10 PM  
Blogger David Schraub said...

It's amazing how Korematsu, probably the most vilified court decision of the 20th century, has gotten resurrected all of the sudden because we've discovered taking away rights is convienant during wartime.

I think you are exploding the political question doctrine way beyond any reasonable interpretation. The reason is because you offer this weird view of the constitution as only having "objective meaning...when it is interpreted." (and then implying that any interpretation, no matter how fanciful, is a-ok [would you be so sanguine about the ISC clause being expanded to include every which regulation under the sun?]). The constitution may not have a singular meaning, but it does have a bounded indeterminancy, there are "interpretations" that simply are stretch the text beyond any plausable reading.

But the real kicker is that when "the Court is policing the boundaries of the authority delegated to him or her by the Constitution and deciding that detention of citizens is not within what the structure of the Constitution delegates to the President," that is a-ok. Alright, cool, I'm saying that it seems abundantly clear that the president's actions toward non-citizens are in the same playing field (Cf., Plyer). The President has no power to contravene the text of the constitution. When the text says "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law," I take it seriously ("in" italicized to note this is not a general exception during times of war or public danger, but only an exception for those in the armed forces or militia).

3:05 AM  
Blogger Publius said...

I've only been in on the whole con law debate for about a year now, but I have never heard that Korematsu was entirely bad law. Now I specified in my post that it may be bad law on its facts--this may be too much deference. But the principle of deference is absolutely not bad law. Both my con law professor and my foreign affairs professor, both quite liberal, agree. Those who only make constitutional law arguments to further their policy goals (admittedly on the Left and on the Right) may pick and choose which cases they think the law should be to support their policy positions, so if you're making sort of an ad hominem attack against the Right's intentions for bring up Korematsu, then you may be right. I certainly think the Left is disingenuous when it makes federalism arguments only when it suits their policy ends. But it doesn't make the deference principle any less valid, only those who are inconsistent less honest. These people shouldn't be making constitutional law arguments anyway.

And I may not have been clear, but I am not saying that the political question doctrine applies to the detainees. I am only using the political question doctrine as an example of deference.

I agree wholeheartedly with your bounded indeterminacy point. This is precisely what I'm saying--determining the points is emphatically, but exclusively, the role of the courts. So the Court says: "Executive, this is an area where the Constitution specifically commits the interpretation of the constitutionality of the actions to you. As long as you stay in that area, we will defer. If you step outside that area, we will exact our own interpretation." So your point is exactly right.

Your use of Plyler, however, is misplaced because it has nothing to do with the use of the war powers. Are you trying to tell me that Plyler should stand for the proposition that in war we should extend all the protections that U.S. citizens enjoy to those against whom we're fighting? Surely you don't think this is correct. The Court need not require Miranda warnings to those we capture, and the family of someone killed on the battle field does not have a due process or 8th Amendment claim.

If you think these two examples are silly, then you must explain them by saying that the Court is not going to exact its independent judgment on all the activities during wartime. The President does have power to interpret the Constitution, and decide which rights will extend to POWs, which will extend to terrorists within the bounds of a reasonable interpretation. But Plyler does not stand for the proposition that the Executive gets zero deference in any of its spheres of action regarding aliens.

Maybe you agree, just think that some of the President's interpretations are unreasonable interpretations of the Constitution. I agree, so did the Court in Rasul. My point with this whole post is not to defend the President, only the constitutional principle of executive deference. You folks on the Left go overboard when you try and get rid of the whole doctrine because you don't like how it's being used.

12:33 PM  
Blogger Anderson said...

The President's commander-in-chief powers were granted, I've heard, in response to the SNAFU of the Continental Congress's essays in micromanagement of the Cont'l Army, which drove Washington nearly to despair at times.

That said, I am trying to imagine the Constitutional Convention approving the sweeping notion of war powers that Yoo and, perhaps, some Ex Posters seem to credit. Unlike Yoo, these men were quite conscious of the dangers of tyranny, and I think it very unlikely that any respect for "original intent" is consistent with the hyperexpansive reading of "war powers" that we've seen in the Yoo memo & similar places.

Korematsu, I would have thought, is the sterling example of why excessive deference to the President's war powers is a bad idea, and I would bet a good sum that the justices and their clerks had that particular debacle in mind when they were deciding Hamdi et al.

11:18 AM  
Anonymous JDMcKay said...

JDMcKay, What is it that you're saying with regard to S.Ct. review? Must the Court always pass independent judgment on Congress/Executive/Agencies' actions?

huh?

I assume that is what you mean when you say "if Presidential (or anyone else's) actions are unconstitutional, then they are unconstitutional. Period."

nope. Can't imagine where you got that.

Because an action isn't just "unconstitutional."

sure it is. Principles exist... or maybe you don't think so?

It has to be unconstitutional according to someone.

I make a distinction between acknowledment and interpretation. Everything you said indicates to me you consider interpreting the constitution a stylized opinion, transient, and subject to the whims of the day.

F:ex, you describe presidential deference as a "principle", which it is not (eg. it's doctrine). GWB suffers from this same mis-perception.

You seem to be saying that it is always the Court that decides. Is this right?

That's what the framers said.

8:53 PM  
Blogger Publius said...

Well, it seems like we're going around in circles. So I think I'll stop commenting on the issue.

But if you think the Court always has to pass independent judgment on the meaning of law, then you are wrong. I've listed plenty of examples of cases where the Court defers or accepts reasonable interpretations. So go back and read those. Read Monaghan's article, Marbury and the Administrative State (link above).

Again, I'm not defending any of the President's actions. I'm not even disputing Hamdi/Padilla/Rasul. But you're kidding yourself if you think the Court never defers.

9:13 PM  
Anonymous JDMcKay said...

I'm not even disputing Hamdi/Padilla/Rasul. But you're kidding yourself if you think the Court never defers.

I don't, and nowhere did I say so.

10:40 AM  
Anonymous Jake said...

jdmckay:

would you mind explaining to the rest of us how the court manages to both pass independent judgment on the law and defer to another body's interpretation?

that is a mystery to at least me.

11:35 AM  
Anonymous JDMcKay said...

would you mind explaining to the rest of us how the court manages to both pass independent judgment on the law and defer to another body's interpretation?

the vast majority of issues never make it to the court. I'd cite Enron/Ca. Energy "crisis" as example in point:
* accusations of various fraudulent actions were made by Ca. officials.
* white house stayed (mostly) silent, ran "liberal ass hole californians" media campaign, & Bush installed his guys at FERC.
* FERC held congressionally mandated authority.
* FERC did nothing, ignoring Ca. officials pleas and not once meeting with them till well after the fact.
* Ca got ripped off +- $12b, w/ancilliary costs over $36b.
* All Ca officials accusations proved true. FERC actually made agreements w/several of perpetrators that they would confess, but confession would never go public.

Ca. had no recourse in courts... they all said it was FERC's deal. FERC/White house
just plain lied. That, my friend, is deference. It's also a damn good example of what happens when deferring to Bush & co AFAIC.

1:19 AM  
Blogger Publius said...

VC post on an Alabama S.Ct. opinion talking about Marbury and deference here.

And JDMcKay, your political rant speaks nothing to judicial deference since the case never reached the Court. Judicial deference occurs when the Court is bound by an interpretation of another branch, not when they never take the case.

But thank you for again telling us how horrible W is, however irrelevant to the topic it is.

1:26 PM  
Anonymous JDMcKay said...

And JDMcKay, your political rant speaks nothing to judicial deference since the case never reached the Court. Judicial deference occurs when the Court is bound by an interpretation of another branch,

Precisely.

not when they never take the case.

If settled and established precedent based on prior reasoning honoring deference, a case need not reach SCOTUS: that they decline review is in itself honoring the doctrine (eg. not a principle, which you seem to refuse to acknowledge).

Previous poster asked for an example: issue I cite is very good one.

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