Constitutional
Law Class Notes
Justice Jackson in
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
“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
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.