Constitutuional Law Notes: 07/24/10

JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer

I. Executive Power Cases
a. In re Negal (1890) – there is nothing in the federal statutes that allows for an US Marshall to be assigned to a sitting justice to act as a bodyguard. Furthermore the appointment was made by the Attorney General. However, since the Attorney General, an inferior executive officer did it, the President must be able to do it, so therefore it is legal. It is ultimately that the President should preserve national peace, so the ruling was that the Marshall was protecting the Justice, therefore protecting justice, therefore protecting peace.
i. This established the domestic peace of the United States.
b. In re Debbs (1895) – Socialist Eugene v. Debbs was arrested for publicly speaking against World War I and therefore used his ability as the head of the unions to stop the train system and so on despite warnings by the mayor and governor. The Supreme Court hears the case yet on the grounds of regulating commerce. Turns out, it was U.S. Mail that was trucking along those railroad lines, so therefore the executive must protect the trains, therefore Debbs’ arrest was constitutional.
i. The President has to maintain the welfare of the country, and therefore can use the full force of the nation to enforce it.
ii. Add the Prize Cases, which deals with war, automatically shows how the President’s power has grown.
iii. Ways to set Precedent:
1. Supreme Court Case
2. President does something illegal, yet no one stopped him.
c. Youngstown Sheet v. U.S. – the Steel workers left their jobs and Truman replaced them and socialized the steel industry. The Supreme Court ruled against this despite the precedents that during war times, the President can seize private property. May the president relying on inherent powers and relies on Commander in Cheif, can it usurp the authority of Congress? No.
i. Justice Jackson – delineates presidential power and determines when the power can be used. He bases the whole thing based on separation of powers has been violated. The president lacked the power to seize them based on Congressional consent. (Foot in mouth:) If the principle of separation of power prevents the president from doing anything the Congress may do, then by the very same token, it bares the Supreme Court from doing anything that Congress may do! That means that this entire case is kindof invalid.
ii. There are too many incoherent opinions, so it’s not a good precedent.

Note: The Courts can say what the Constitution is in any case during domestic tranquility. In an emergency, they have absolutely no say about what Article II, the powers of the President. The President determines over time and precedent what the Article II stipulates.

d. Humphrey’s Executor v. US – quasi-executive agencies, otherwise known as the bureaucracy or the 4th branch, have elements of both executive authority, and legislative authority. Humphrey on the Federal Trade Commission. According to Roosevelt, Humphrey should resign so that Roosevelt can appoint someone more aligned. So Roosevelt removes the poor basterd. Supreme Court ruled that you can fire them, but only with cause, not to have alignment. Because they are not purely executive, you can’t have purely removal. Myers was overturned and was changed to non-absolute.
i. Myers v. US (1926) – precedent that appointment and removal are absolute powers of the Chief executive.
e. US v. Belmont – Russia had invested some money in Belmont’s bank. So had the expropriation been recognized by treaty, he would have no case. There was no treaty, so therefore the laws of the State of New York prevailed. This was an executive agreement. This next time that this problem happened, there was a treaty. This treaty acts as though it is an amendment to the constitution. You can do the same thing with an executive agreement that you can do with a treaty. Does that also mean that an executive treaty could be an amendment to the Constitution? Does this increase the presidential power?
f. Ex parte Merryman – the decision in this that the suspension of habeas corpus is legal is not a good precedent because Lincoln completely disregarded it.
g. Korematsu v. United States (1944) – Presidential order 9066 was made, making the containment camps. Basically says that in time of war, the government can make any means to emerge victorious in a military conflict. (Legal racism?) This all happened due to haste, but if haste was the justification for the government, then look at the time chart.
i. Justice Jackson Opinion – A military commander may overturn the bounds of constitutionality and it is an incident, but if we review and approve of that passing incident, it will become the doctrine of the constitution. All that it creates will be of its own image, cease to exist as law, and only as war power.
h. Duncan v. Hawaiian Person – was the President's institution of Marshal Law after 1941 constitutional? Yes. Hawaii was just attacked at 1941. The war was over for a year when this case was heard, so they rendered the decision as FDR was dead.
i. New York Times v. U.S. – The government seeks an injunction from preventing the Pentagon Papers from being printed in 3 newspapers. Two highly placed people, Nixon as VP and Senate Majority leader LBJ didn’t agree with Eisenhower’s refusal to send ground troops to Vietnam.
j. Hamdi v. (2004) – Hamdi is an American citizen, is labled an enemy combatant. The question, does due process require that a held citizen as an enemy combatant be given a chance to explain himself?
i. Anyone detained as an enemy combatant is treated as if they were citizens.

True meaning of the Constitution (according to Merryman decision): “The constitution of the United States is a law for rulers and people equally in war and peace and covers with its shield of protection under all times and under all circumstances… [none] of its great provisions can be suspended during the great energies of war.