Constitutional Law Class Notes 2/24/04


Justice Jackson in Youngstown Sheet


What are the three categories that Justice Jackson identifies in his concurring opinion in Youngstown Sheet?


1.     When Congress has said that the president can exercise a certain power, either expressly or implicitly, then there is a strong presumption that the president has that power.  (“Yes!”)

2.     When Congress has been completely silent or they are ambiguous, there’s kind of a grey area.  (“Maybe!”)

3.     At the other end of the scale, when the president acts against the wishes of Congress (explicitly or implicitly), the president’s powers are at a minimum (“No!”) and are limited to the powers enumerated in the Constitution.  In other words, the president has the power only when the act passed by Congress is unconstitutional.


Dames & Moore v. Regan


One important thing of this case is that the Court chose to follow the guidance of these categories.  However, the Court notes that this is really a spectrum rather than three discrete categories.


It is very important to be able to go back and forth being categorization analysis and spectrum analysis.  Sometimes it’s useful to put things into analytic “boxes” that are clear and well-defined.  But at other times, it’s important for the legal system to soften those lines.  There may be examples of “Yes” and “No” that aren’t polar opposites and not perfectly clear.


In Padilla, which Jackson box does the case fall into?  The Second Circuit said that the president lacks the inherent constitutional authority to detain citizens on American soil outside the zone of combat.  Also, they think that the Non-Detention Act places the case in the “No” box and that the Joint Resolution doesn’t take it out of that box.


“Category 1”, the “Yes” category, is the one where Congress says: “Go, President, Go!”  The district court thought that the Joint Resolution put the case in this box.


So what does the government say?  On the one hand, they talk about the inherent constitutional powers of the executive branch.  If that argument is made, it would be conceding that we’re in the “No” category.  But then they argue that Article II trumps Congress in certain areas or in certain situations.  They also could argue that Bush was detaining Padilla pursuant to the Joint Resolution.  Or they can argue that the Non-Detention Act only applies to the Attorney General and not the president.


The best category for the president to be in is “Category 1”…the “Yes” category!  How do we get there?  The Joint Resolution is an Act of Congress!


How will the Supreme Court structure the argument?  Under the Jackson analysis, the first thing you’re supposed to do is look at what Congress has said: look at the statutes!  That’s not what this court does first.


But could the president have detained Padilla even if Congress hasn’t authorized it?


We find that the statute authorizes the president to use all “necessary and appropriate force” against all sorts of people.  But how can he use force against Padilla in particular?


(What if Congress just passed a new resolution that specifically included Padilla and others in his same position?)


According to the president, how does Padilla fit into the language of the Joint Resolution?  They claim that Padilla is part of al Qaeda!  Thus, since he’s allowed to use appropriate force against that organization, they reason that he can use force against a member of that organization.  The president argues that he is entitled to detain al Qaeda agents.


The key point is: what is the relationship between Padilla and al Qaeda?  The case says that the government doesn’t allege that Padilla is a member of al Qaeda.  If this was the case, the Second Circuit would see this case entirely differently.  But the Second Circuit says that Padilla is only associated with al Qaeda.


Run through the statutory analysis with Hamdi in mind.  The statutes don’t make a distinction between the Hamdi situation and the Padilla situation.


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