Constitutional
Law Class Notes
More
about summer research assistants…he wants to wrap up the process by Spring
Break.
If
we are still at loose ends on Padilla, we’ll come back to it at the end
of the semester.
An outline of Padilla
Remember
that there are two basic questions in Constitutional Law: the “power question”
and the “rights question”. When we did
the Commerce Clause, we were dealing exclusively with power questions with
respect to congressional power. Now we’re
dealing more with presidential power.
What is the source of authority for this part of the federal government
to act? The power question is always a first stage question. The
However,
Padilla
includes a second stage “rights question” as well. In cases like Printz, you had to ask both
the “power question” and then the “rights question”. Or on the other hand, regulations on guns
might be allowed as a congressional power under the Commerce Clause, but it
might be prohibited as an abridgement of rights under the Second Amendment.
Padilla deals with both questions. For the first part of the week, we were
analyzing the power issue using the
Congress
can only get authority from the Constitution, while the president can get power
from Congress or from the Constitution itself (Article II).
But
then you have to ask if there are rights in the Bill of Rights that limit these
powers. Quirin and Milligan are
mostly focused on this “stage two” question.
Always
bear in mind: power questions first
and rights questions second.
There
are three separate ways to say that the president might have the ability to
detain Padilla indefinitely. These
follow the
Note
that if we say the president doesn’t have constitutional authority, we never
have to deal with the Fifth Amendment.
There
are some rights-bearing clauses within the original Constitution, like the Privileges
and Immunities Clause of Article 4, Section 2.
Also, Article I §§ 9 and 10 say that neither Congress nor the state can
pass ex post facto legislation or
bills of attainder.
You
never have to address the question of violation of a constitutional right if the government lacks the power in the
first place.
Even
if the president has the authority to detain Padilla, that authority might
still be limited in some respects. For
example, he might have to provide evidence supporting the detention.
Under
international law, administering a “truth serum” like sodium pentothal is
considered torture. But aren’t there
costs and benefits?
Padilla is a big deal.
Be
sure to understand the difference between power
and rights. But once you’re comfortable with that, you
should let yourself get a little bit fuzzier with it. When the Supreme Court thinks about the power
question, they’ll have the rights question in the back of their minds.
One
argument that may prove persuasive to some members of the Court as a reason for
saying that with respect to this twilight
zone case the president lacks that
kind of inherent power is to say: We’re worried about the Fifth Amendment
implications if we grant this power.
That not to say that they’ll get to stage two, but they’ll say “no” at
stage one because they are worried
about stage two.
Ex parte
Milligan
How
do the facts of this case and the holding of this case bear on Padilla? Can you distinguish the two cases? In Milligan,
we had a clear congressional statute that said that someone in Milligan’s
position should not be subjected to a
military trial. They said that any
Americans detained by the Union army had to be subjected to the ordinary
criminal process if certain conditions are met.
The specification provided by Congress of how to deal with these people
did not include military tribunals. Therefore, we’re in category three. This is a key point in the separate
concurrence in this case. The
concurrence would use that as the sole
ground for releasing Milligan from military detention. They would have settled the case solely on
the stage one power inquiry. “When Congress
has said no, then the president doesn’t have a power that overcomes that.”
On
the other hand, the majority opinion went on to say that Congress couldn’t have
authorized such military tribunals even if they wanted to. The Court kind of overkills the subject. You can’t ever
put an American on trial in a military tribunal as long as courts are open and
functioning.