Constitutional Law Class Notes 2/26/04


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 Jackson analysis has to do with the power question as well.  You could analogize the Jackson analysis to the Lopez test: it’s a methodological inquiry courts use to figure out the answer to the power question.

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 Jackson analysis from Youngstown Sheet.  Now we will analyze the rights issue.


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 Jackson analysis.


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.


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