Constitutional Law Class Notes 4/26/04


This is our very last class of our first year of law school!!!


More on the Padilla briefs


What kinds of questions will the Court want to ask at oral argument of the respondents?  What constitutes express authorization by Congress?  That’s an issue from Youngstown Sheet.  The use of force statute doesn’t say anything about detention specifically.  Maybe we have two different statutes that point in opposite directions, and we could construe either one of them to be controlling if we wanted to.  Both statutes can be interpreted to apply, and they conflict.  Maybe we’re in the Youngstown Sheet twilight zone!  Neither side wants to argue that we’re in the “maybe” box.  One side wants “yes”, and one side wants “no”.


The Justice Department wanted extra powers to deal with terrorism in light of 9/11.  The PATRIOT Act is a big law.  The Act expires on its own terms.  It provides the President a lot more ability to investigate foreigners.  How will the PATRIOT Act come into play?  It might put us more in the “twilight zone”.  What if Padilla was a member of al Qaeda?  Would that be enough to give the President authority?  What about Quirin?  That person was a member of the German Army.  It’s different being the German Army versus membership in al Qaeda because Germany is a country with a real army and al Qaeda is not a country.  But if Congress has said that we’re at war with this paramilitary organization, then it would be argued that membership is enough.  There is a lot of back-and-forth that will go on.  This would be a harder case for Padilla if he were a member of al Qaeda.  The other tricky hypothetical would be if Padilla had been captured with the equipment necessary to build a dirty bomb.  There must be some inherent authority of the executive branch to protect the United States from radioactive bombs blowing up.  It would justify some kind of original, temporary detention.


There are two big issues: the detention is of a unilateral and indefinite nature based on whatever evidence he thinks is appropriate without any judicial review.  On the other hand, you must wonder to what extent the Court would be comfortable saying that there is no military jurisdiction at all.  If the military had no role to play, then someone who was working for a military power in an effort to blow up buildings and kill people and who was caught is not subject to military authority.  What the Court may do is rest on the fact that we have neither membership nor any overt sign of belligerence.  Either one by itself would be enough, perhaps even in the “twilight zone” if that’s where we are.  If the government catches someone who is a member of a military organization that we are at war with, or if they’re caught red-handed engaged in a military operation pursuant to the orders of that organization, then either one of those facts might give the President sufficient authority.  Padilla wasn’t caught red handed.  He also isn’t alleged to be a member.  In the absence of either of those facts, the Court may say that he has to be prosecuted in civilian courts.


The Court may be nervous about accepting the government’s position in Padilla in terms of the unilateral authority the President is said to assert.  There are implications for this in terms of the idea of liberty in the Constitution.  The Court is going to go back into history to reach some judgments about what is the appropriate position it should take.  If the Court says no to the President in Padilla, that would be a historically significant act for the Court to take.  Foley says that Padilla feels like a really big case.


By 1984, the Warren Court seemed like ancient history.  But the distance between the Warren Court and 1984 is the same twenty years between the Burger Court and today.  In 1984, we had no Lawrence, no Lopez or Morrison, and no Printz.  Constitutional Law ebbs and flows in ways that are difficult to notice at any one moment.  In terms of Separation of Powers, these cases about being in war weren’t important.  When you get a case like Padilla that links back to the earlier periods like 1944, you find that there are some big themes that stay constant in Constitutional Law even though it ebbs and flows.  Some cases strike at the core of what the country is all about.  There were two big developments during World War II.  Korematsu is thought to be a terrible mistake.  Barnette was a First Amendment case that was a great victory for liberty.  It was a decision that said that schoolchildren can’t be kicked out of school for failing to salute the flag.  Initially, they were ordered to salute the flag, but the Court said that the concept of liberty in Constitutional Law is strong enough to allow that dissent.  Robert Jackson wrote the majority opinion in Barnette and wrote the dissent in Korematsu.  He seems to write opinions with extra power and insight.


The point of Jackson’s dissent in Korematsu was that the courts sometimes can’t stop armies from doing what they need to do.  In Barnette, Jackson told us that the role of the courts and the Constitution are to protect those things that are beyond voting.


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