Law Class Notes
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”.
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
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.
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,