The U.S. Supreme Court and the Liberal Constitution in the National-Security State

Contents

1. Introduction

2 The Power of Foreign Affairs
2.1 The Original Intent ofForeign Affairs
2.2 Problems

3.. The Shifting of the Foreign Affairs Powers
3.1 United States v. Curtiss-Wright Export Corp. (1936)
3.2 Youngstown Sheet & Tube Co. v. Sawyer (1952)

4. Foreign Affairs Powers Today
4.1 Rasul v. Bush (2004)
4.2 Hamdan v. Rumsfeld (2006)

5.Discussion

6.Sources

“Terrorism has replaced Communism as the rationale for the militarization of the country, for military adventures abroad, and for the suppression of civil liberties at home. It serves the same purpose, serving to create hysteria.”

Howard Zinn, Terrorism and War (2002) “Der war on terror besitzt die ideale Eigenschaft, nicht gewonnen werden zu können - und daher nie beendet werden zu müssen.”

Peter Sloterdijk, Zorn und Zeit (2006) “Ijust want you to know that, when we talk about war, we're really talking about peace.”

George W. Bush, Washington, D.C., June 18, 2002 “In a time of war, the president must have the power he needs to make the tough decisions, including, if need be, the decision to grant himself even more power. [...] I promise the American people that I will not abuse this new power, unless it becomes necessary to grant myself the power to do so at a later time.“

George W. Bush, during a televised address from the East Room of the White House shortly after signing the Presidential Empowerment Act (2006) “The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature [...] the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

James Madison. 1793, writing in response to Hamilton as Helvidius

1. Introduction

The president of the United States is often mentioned in the media as the most powerful man in the world (Forbes 2012). But how far does his power reach in foreign affairs? Has he, as the commander in chief, the inherent power „to do anything, anywhere, that can be done with an army or navy“ (Youngstown Sheet & Tube Co. v. Sawyer, 1952: p. 642)? Can the Supreme Court control the president when he is acting with this executive powers and his authority as commander in chief? Did the president had the power to order the Korean War, the Vietnam War, the Congo rescue operation, the bay of pigs invasion, the intervention in the Dominican Republic or the engagement in the Cuban missile crisis without approval by Congress? Can the U.S. government detain foreign citizens indefinite at Guantanamo Bay and declare them as enemy combatants, without due process and suspend the writ of habeas corpus? Is the National Security Agency authorized to intercept international communication reputedly linked to al Qaeda or other terrorist organizations? The

Justice Department defended the monitoring:

“The NSA activities are supported by the President's well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs [...].“ (U.S. Department of Justice 2006: p. 1)

This paper argues that there is no well-recognized inherent power giving the president the possibility to act in foreign affairs without judicial control and congressional authorization, even though there is a long debate about this issue.

The content is divided into three parts. First, there will be a description about the famous „original intend“, i.e. how the founding fathers designed the distribution of foreign affairs power and how they formulated the realm of foreign affairs in the text of the constitution. The second part will examine two famous Supreme Court cases that deal with the question about inherent power of the President: the notorious case United States v. Curtiss-Wright Export Corp. from 1936 and Youngstown Sheet & Tube v. Sawyer from 1952. Both cases are examples for the shifting back and forth of the Supreme Court when dealing with the external powers of the president. The third part gives attention to the current status of presidential foreign affairs powers, specially when the President is acting in the “war on terror”. Two cases will be analyzed, dealing with questions about judiciary control of presidential detention of foreign citizens in Guantanamo Bay (Rasul v. Bush, 2004) and the legality of military commissions according to the American Constitution and international law of war (Hamdan v. Rumsfeld, 2006).

Finally, there will be a discussion about the presidential powers in foreign affairs and the advantages and disadvantages of a powerful president in external policies.

2. The Power of Foreign Affairs

Foreign affairs in a classical sense means the activities or omissions from one government against another and is expressed in state visits, treaty or agreement assignments with other governments and the diplomatic circulation. Foreign policy includes parts of defense, economic, development or culture policy that are transboundary, f.e. war making (Seidelmann 2007: p. 26). This chapter is about how the grounding fathers thought about foreign policies and the distribution of powers in that realm. Their ideas and aims will be described and afterward there will be a short critic which evoked on their construction for current developments.

2.1 The Original Intent ofForeign Affairs

In the generation of the framer existed a widespread fear of executive power, because of their experiences with the British monarchy. They saw the executive as the natural enemy and the legislative as the natural friend of liberty. They always wanted the final decision, the authority to initiate war, to be in congress and not in the hand of one man (Adler 1996a: p. 198). Nevertheless, the issue of foreign affairs was much discussed at the constitutional convention and nearly all of the first thirty federalist papers pay attention to this issue (Schlesinger Jr. 1996: p. ix). Finally, they came to the compromise that the conduct of foreign affairs should be a partnership between Congress and the president, with Congress as the senior partner (Adler 1996b: 19).

Treaty making

Hamilton concluded that the power of making treaties is whether an legislative nor an executive authority, but still:

“The particular nature of the power of making treaties [...] will be found to partake more of the legislative than of the executive character.” (Hamilton, Federalist No. 75)

The framers envisioned the treaty making process with regularly consultations from the president and Congress. The president should not present the Senate “with a fait accompli” (Spitzer 1996: 86). That is why they formulated the treaty making clause as a power of the president “by and with the Advice and Consent of the Senate” (Article 2, Section 2).

Appointment of Ambassadors

With regard to ambassadors, the president „shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors“ (Article 2, Section 2). The framers tried to find a balance between the British King, who was allowed to appoints all offices, create new ones, confer titles of nobility at pleasure and who had a large number of church preferments and the Governor of New York, who was just a member of the council that had the power of appointment, but he himself did not have the right of nomination and he was entitled to a casting vote in the appointment (Hamilton,

Federalist No. 69). The president's function for the appointment of ambassadors was though a compromise between both.

In Article 2, section 3 of the Constitution, it is said that he „shall receive Ambassadors and other public Ministers“. The framers' intention was that the president should be the instrument to speak with foreign nations. It is therefor more a function than a power:

„This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government [...]“ (Hamilton, FederalistNo. 69)

War making

In contrast to the power of treaty making and the appointment of ambassadors, the power of making wars is quite more severe. The senior status for Congress was here especially important for the grounding fathers. In Article 1, Section 8, Clause 11 it is written:

„The Congress shall have Power [...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water“

They obviously gave Congress the power to decide about the declaration of war, it is nowhere mentioned in the constitution that the president is granted any influence on that decision. James Wilson underlined their conviction, when saying:

„This system will not hurry us into war, it is calculated to guard against it. It will not be in the power of a single man [.] to involve us in such distress; for the important power of declaring war is vested in the legislature at large [...] nothing but our interest can draw us into war.“ (James Wilson, Pennsylvania Ratifying Convention, 1787)

Still there aroused a heavy debate a few years later, famous as the Pacificus-Helvidius debates, between Federalists and Jeffersonians about the conduct of foreign relations. The reason for that debate was the Proclamation of Neutrality announced by President George Washington including the declaration of America's neutrality in the conflict between France and Great Britain. The controversial issue was whether the president had the authority to declare the United States neutral in general, and especially though this declaration would violate an earlier treaty with France (Frisch 2007: pp. viiff.). While Hamilton (writing with the pseudonym Pacificus) stated that the Proclamation of Neutrality was constitutional, because if “the Legislature have a right to make war on the one hand - it is on the other the duty of the Executive to preserve Peace till war is declared” (Pacificus I, 1793, in Frisch 2007: p. 13), Madison (writing with the pseudonym Helvidius) was convinced that a proclamation of neutrality would infringe the legislative power, because that proclamation is in answer the question whether there is a war or not, and that question can just be answered by Congress:

“In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.“ (Helvidius IV, 1793, in Frisch 2007: p. 87)

Besides the struggling about declaration of war or neutrality, both sides agreed in the distribution of foreign affairs powers when once Congress has declared war. They entitled the President as the “Commander in Chief of the Army and Navy [...], when called into the actual Service of the United States” (Article 2, Section 1):

„Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.“ (Hamilton, Federalist No. 74)

But still the designation of the president as the Commander in Chief does not give him any war making power, he has only the authority to repel sudden attacks or direct war when authorized by Congress. The aim of the framers was to keep the president on a short leash. That view is underlined by the fact that the framers adopted the title „commander in chief“ from the historical usage in England. King Charles had introduced the term in 1639 to „the highest-ranking officer in a particular chain of command or theater of action“, but this officer had still been subordinated under political superior (Encyclopedia of the American Foreign Relations 2012).

One thing must be added to this chapter: Talking about the „original intend“ is always a hot issue in the United States. There are many discussions about what the “original intend of the original intend” is and there is no general agreement yet (Powell 1985: p. 885). That is why this paper tried to work with mostly original sources, especially with the Federalist Papers. The listed quotes try to show that the original intent included a limitation of the presidential powers, specially in foreign affairs, because the framers wanted to prevent the development of a despot after America's experience with the British monarchy. But it must be mentioned that there are people arguing different, saying that the President has a kind of “inherent power” in foreign policies, which is not mentioned in the constitution (f.e. Welch et al. 2010: p. 315; Sidlow & Henschen 2009: pp. 271f.).

It shows that since the early debates about the constitution, the federalist papers and the Pacificus- Helvidius debates, there is till today still no agreement achieved about the realm of foreign affairs.

2.2 Problems

The problem starts with the question about the right way to interpret a constitution. Particularly in the United States arose a conflict between the method of strict construction that pays attention just to the „letter of the law“ and broad construction that tries to determine the context, the historical background and purpose of the law (Bardes 2011: p. 292). Specially for thejudiciary, whichjob it is to interpret the constitution, it is very important what kind of method the judges use. If they are supporter for a strict statutory construction, theyjust take the words and the structure of the text for understanding. One famous hardliner for that kind of interpretation is currently Justice Scalia (Karkkainen 1994). Judges who prefer the strict construction are usuallyjudicial restrains, which is a doctrine holding that courts should defer to the decisions made by elected representatives of the people in the legislative and executive branches and just clearly unconstitutional acts should be prosecuted. In opposition to that, broad constructivists are judges who consider the context of the constitution. They modify the constitution and adapt it to the new circumstances of their time. Most of those judges are judicial activists, holding that the judiciary should take an active role by using its power to check the activities of the other two branches (Bardes 2011: p. 290f.). One famous example for ajudicial activist court is the Warren Court (1953-1969), because they decided many cases in the fields of civil liberty and racial segregation with long-term effect (Wright 1968). The difficulty of the broad construction method is the ongoing debate about what “the original intent of the original intent” means (compare f.e. Levy 2000 or Brest 1980).

Besides the problem of the right interpretation method, there evoked other problems with the constitutional construction of the framers in the realm of foreign affairs.

The constitution is quite clear about treaties, but there is no regulation in the constitution about agreements. In United States v. Belmont (1937), Justice Sutherland uphold the validity of an executive agreement of property claims between President Franklin D. Roosevelt and Maxim Litvinov that would had required no consultation of the Senate. Sutherland explained this decision with the “recognition power” and the sole-organ doctrine. But for the grounding fathers, the “recognition power” was mostly a ceremonial function. This was an “extreme extension” of presidential power in foreign policies (Adler 1996b: pp. 28f.). Furthermore, there is the problem what the difference is between a treaty and an agreement. When Theodore Roosevelt could not get the approval of Congress for a treaty with the Dominican Republic in 1905, hejust altered the treaty to an executive agreement (Spitzer 1996: p. 95). But even though the difference is not quite clear, in the opinion of Hamilton treaties as well as agreements belong “neither to the legislative nor to the executive”, that is why it “would afford a greater prospect of security” to give this power as joint possession to both (Hamilton, Federalist No. 75). In practical terms, an international understanding is likely to be treated as an executive agreement as long as Congress does not express specific objections to avoid it, as Congress did f.e. with the Panama Canal treaties and the SALT II agreement, President Carter then was forced to deal with the negotiations as treaties (Spitzer 1996: p. 96).

Another critical point is that today, with the development of the international terrorism, the borders between war and peace are not clear anymore.

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