EXAM 1

Inherent Powers*

Powers flowing from the very nature of nationhood such as the authority to conduct foreign policy. (pp. 144; 168-171)

Clinton v. Jones (1997)

Procedural Posture: Paula Corbin Jones filed suit in federal district court in Arkansas against William Jefferson Clinton and Arkansas state trooper Danny Ferguson over an incident that was alleged to have occurred on May 8, 1991. Clinton filed motions asking the district court to dismiss the case on grounds of presidential immunity and prohibit Jones from refiling the suit until after the end of his presidency. The district court rejected the presidential immunity argument but allowed that no trial would take place until Clinton was no longer president. Both Clinton and Jones appealed to the U.S. Supreme Court, which granted certiorari. Disposition: In a 9-0 decision, the court held in favor of Jones, affirming the district court's right to decide this case. Facts: Bill Clinton was elected to the presidency in 1992 and reelected in 1996. Prior to the presidency, Clinton held the office of governor of Arkansas. In 1994, Paula Corbin Jones filed suit in federal district court in Arkansas against Clinton and Arkansas state trooper Danny Ferguson over an incident that was alleged to have occurred at the Excelsior Hotel on May 8, 1991, in Little Rock. Jones, then an employee of the state, was working at the registration desk of a conference in which Governor Clinton delivered a speech. Jones alleges Trooper Ferguson told her that Governor Clinton wanted to see her in his room, and Ferguson escorted her to the room. Once in the room, Clinton begins to make unwanted sexual advances towards Jones. Clinton denies the allegations and claims that the lawsuit is politically motivated. Relevant Provision of Constitution: Article II, specifically separation of power principles. Question: Whether the constitution protects a sitting president from a lawsuit that seeks damages from an unofficial act that occurred before becoming president? Holding: The Federal Constitution did not require that federal courts, in all but the most exceptional cases, defer civil damages litigation against the President until the President's term ended when such litigation was based on actions allegedly taken before the President's term began, in part because (a) a temporary immunity from suit for unofficial acts, grounded purely in the identity of the President's office, was unsupported by precedent of the Supreme Court, and (b) the doctrine of separation of powers did not require federal courts to stay all private actions against the President until the President left office; and (2) it was an abuse of discretion for the District Court, which had jurisdiction to decide the case at hand, to defer the trial until the President left office, in part because (a) such a lengthy and categorical stay took no account of the individual's interest in bringing the case to trial, (b) the decision to postpone the trial was premature, and (c) no impingement upon the President's conduct of his office had been shown. Reasoning: (Stevens) There is no support for immunity for unofficial conduct. The doctrine of separation of powers does not require federal courts to stay all private actions against the president until he leaves office. The doctrine of separation of powers is concerned with the allocation of official power among the three co-equal branches of government. Concurrence: (Breyer) The constitution does not automatically grant the president immunity from civil lawsuits based upon his private conduct. The president cannot simply rest upon the claim that a private civil lawsuit for damages will interfere with the constitutionally assigned duties of the executive branch... without detailing any specific responsibilities or explaining how or degrees.

Necessary and Proper Clause

Provides that Congress shall have the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution of Governmentof the United States, or in any Department or Officer there of."

Nixon v. United States (1993)

Relevant Facts: Nixon, Chief Justice, U.S. District Ct. Mississippi, was convicted by a jury of two counts of making false statement before a federal grand jury and sentenced to prison. The Senate initiated a committee in line with Rule XI, and the Senate heard testimony, queried each of the parties, and voted by over two-thirds to convict, thereby removing Nixon of his judicial seat. Petitioner argues the word "try" imposes that the Senate trial must be as a judicial trial. Respondent argues there is no identifiable limit on the word, and therefore is not a political question. Issue: Under constitutional law, is Senate Rule XI, which allows a committee to hear evidence in a judicial impeachment trial to the full Senate, which then reports its findings to the whole Senate for a two-thirds vote constitutional? Holding: Yes. It is not a claim the Court can address; it is a PQ. Court's Rationale/Reasoning: The Court examined Art. I, section 3, clause 6 to determine the scope of authority conferred upon the Senate in impeachment proceedings. It focused on 2 terms, "sole" and "try." Sole in the context of the Constitution, means the Senate has the only authority on this matter. Try in the context of the document is given much broader deference by the Court. Try means, of some things presented, "to examine," "to investigate." In the context of the first sentence of the clause, "try" is very broad as to the standard of review in such a case. All there is, is the 2/3 vote requirement, and Chief Justice presides when the President is on trial. "Sole" is interesting as well. The word is used only one other time in the document, that in mentioning the House's sole power of impeachment. Since nothing else in the text lends itself to another meaning, the Court takes from the document that sole means all power in impeachment hearings go to the Senate. Additionally, neither party offers a scintilla of argument as to judicial review precedent in relation to the word "sole" in clause 6. In an originalist take, the Court reasons that the Framers likely wanted Senate power over impeachments for the following reasons: (1) the Senate was the most fit depositary of this trust, (2) the Framers didn't know if the members of the Court had the "onions" to take care of business should they have to, (3) if they had to do the original trial, they might also have to hear the criminal portion in addition to the impeachment proceeding. The second focus the Court took is that judicial review on a judicial official by the Court might not be consistent with the checks and balances held so essential to the government. There are 2 checks on Congress: (1) House accuses, Senate tries impeachments; (2) two-thirds super majority vote. Additionally, this policy of judiciary judicial review could affect other branches' officers. Last, this is comparable to Powell, b/c of the qualifications argument. The House in Powell was in charge of the qualifications of its own members, which is why the Court bowed out of the debate. The same situation exists here, which is why the Court will bow of the argument when Art. 1, section 3, clause 6 lays out the game plan. Rule: Excerpt from Art. I, section 3, cl. 6: "The Senate shall have sole Power to try all Impeachments." Important Dicta: N/A. Concurring: (Justices White & Blackmun): Questions the Court's bowing out the argument on the basis of the meaning of the word "sole." If the Court gets involved in situations where the legislature is involved in other situations, this is inconsistent. Article I confers "all legislative powers" to Congress. Does this mean there is no review of any of its legislation? Framers didn't want to lay all the power in one branch, which is why they separated it up between the three branches.

Baker v. Carr (1962)

Summary of Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Facts Charles Baker (P) was a resident of Shelby County, Tennessee. Baker filed suit against Joe Carr, the Secretary of State of Tennessee. Baker's complaint alleged that the Tennessee legislature had not redrawn its legislative districts since 1901, in violation of the Tennessee State Constitution which required redistricting according to the federal census every 10 years. Baker, who lived in an urban part of the state, asserted that the demographics of the state had changed shifting a greater proportion of the population to the cities, thereby diluting his vote in violation of the Equal Protection Clause of the Fourteenth Amendment. Baker sought an injunction prohibiting further elections, and sought the remedy of reapportionment or at-large elections. The district court denied relief on the grounds that the issue of redistricting posed a political question and would therefore not be heard by the court. Issues Do federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment? What is the test for resolving whether a case presents a political question? Holding and Rule (Brennan) Yes. Federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment. The factors to be considered by the court in determining whether a case presents a political question are: Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)? Is there a lack of judicially discoverable and manageable standards for resolving the issue? The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion. The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government. Is there an unusual need for unquestioning adherence to a political decision already made? Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question? The political question doctrine is based in the separation of powers and whether a case is justiciable is determined on a case by cases basis. In regards to foreign relations, if there has been no conclusive governmental action regarding an issue then a court can construe a treaty and decide a case. Regarding the dates of the duration of hostilities, when there needs to be definable clarification for a decision, the court may be able to decide the case. The court held that this case was justiciable and did not present a political question. The case did not present an issue to be decided by another branch of the government. The court noted that judicial standards under the Equal Protection Clause were well developed and familiar, and it had been open to courts since the enactment of the Fourteenth Amendment to determine if an act is arbitrary and capricious and reflects no policy. When a question is enmeshed with any of the other two branches of the government, it presents a political question and the Court will not answer it without further clarification from the other branches.

Justiciability

The quality of a dispute that makes it appropriate for a judicial resolution. (pp. 92-97)

Executive Privilege*

A doctrine that the president cannot be required by the other branches of government to provide information (documents, records, testimony, etc.) about his activities. (pp. 223-228)

Hylton v. United States (1796)

Vote: 3 (Chase, Iredell, Paterson) 0 Seriatim opinions: Chase, Iredell, Paterson Explanations of nonparticipation: Cushing, Wilson Not participating: Cushing, Ellsworth, Wilson FACTS In 1794 Congress passed legislation imposing a tax on carriages owned for personal use. It was enacted in the form of an excise with the rate per carriage being the same throughout the United States. The tax was partisan in nature, having been enacted by the Federalist majorities in Congress whose support came largely from the northern states. Because the residents of the southern states, a Democratic-Republican stronghold, owned a disproportionately large number of carriages, they would pay the brunt of the tax. Supporters of the Democratic-Republicans therefore argued that a tax on carriages should not be classified as an excise, but as a direct tax. The Constitution requires direct taxes to be apportioned on the basis of population, which would shift the tax burden to the more populated northern states. In order to answer this specific question, as well as the more general one of what the term "direct tax" means, a court test was arranged. Daniel Hylton, a resident of Virginia, was charged by the federal government with not paying a tax on his carriages. He responded by claiming that the tax was unconstitutional because it was not apportioned on the basis of population. Hylton and the government were clearly cooperating in the lawsuit; both wanted the tax upheld, and both concluded that the best way to reach that goal was to have the case heard in federal court where members of the Federalist Party dominated the judgeships. Toward that end, they stipulated that Hylton owned 125 carriages for personal use when he actually owned only one. The tax on 125 carriages would be $2,000, meeting the threshold for federal court jurisdiction at the time. The parties agreed to waive any right to a jury trial so that a judge would determine the outcome. The government also conceded that if the tax was upheld, it would only charge Hylton $16 in taxes. The strategy worked perfectly. The tax was declared a valid excise tax by the lower court, and the Supreme Court, also in the control of the Federalists, affirmed, providing a limited definition to the term "direct tax." Hylton v. United States was the first case that asked the Supreme Court to consider the constitutionality of a federal statute. It would be seven years later, in Marbury v. Madison, that the Court would not only consider a statute's constitutionality but would actually strike down a law found repugnant to the Constitution. CHASE, JUSTICE. By the case stated, only one question is submitted to the opinion of this court; whether the law of Congress, of the 5th of June, 1794, entitled, 'An act to lay duties upon carriages, for the conveyance of persons,' is unconstitutional and void? The principles laid down, to prove the above law void, are these: That a tax on carriages, is a direct tax, and, therefore, by the constitution, must be laid according to the census, directed by the constitution to be taken, to ascertain the number of Representatives from each State: And that the tax in question, on carriages, is not laid by that rule of apportionment, but by the rule of uniformity, prescribed by the constitution, in the case of duties, imposts, and excises; and a tax on carriages, is not within either of those descriptions.... The great object of the Constitution was, to give Congress a power to lay taxes, adequate to the exigencies of government; but they were to observe two rules in imposing them, namely, the rule of uniformity, when they laid duties, imposts, or excises; and the rule of apportionment, according to the census, when they laid any direct tax. If there are any other species of taxes that are not direct, and not included within the words duties, imposts, or excises, they may be laid by the rule of uniformity, or not; as Congress shall think proper and reasonable.... The Constitution evidently contemplated no taxes as direct taxes, but only such as Congress could lay in proportion to the census. The rule of apportionment is only to be adopted in such cases where it can reasonably apply; and the subject taxed, must ever determine the application of the rule. If it is proposed to tax any specific article by the rule of apportionment, and it would evidently create great inequality and injustice, it is unreasonable to say, that the Constitution intended such tax should be laid by that rule. It appears to me, that a tax on carriages cannot be laid by the rule of apportionment, without very great inequality and injustice. For example: Suppose two States, equal in census, to pay 80,000 dollars each, by a tax on carriages, of 8 dollars on every carriage; and in one State there are 100 carriages, and in the other 1000. The owners of carriages in one State, would pay ten times the tax of owners in the other. A. in one State, would pay for his carriage 8 dollars, but B. in the other state, would pay for his carriage, 80 dollars. It was argued, that a tax on carriages was a direct tax, and might be laid according to the rule of apportionment, and (as I understood) in this manner: Congress, after determining on the gross sum to be raised was to apportion it, according to the census, and then lay it in one State on carriages, in another on horses, in a third on tobacco, in a fourth on rice; and so on. I admit that this mode might be adopted, to raise a certain sum in each State, according to the census, but it would not be a tax on carriages, but on a number of specific articles; and it seems to me, that it would be liable to the same objection of abuse and oppression, as a selection of any one article in all the States. I think, an annual tax on carriages for the conveyance of persons, may be considered as within the power granted to Congress to lay duties. The term duty, is the most comprehensive next to the generical term tax; and practically in Great Britain, (whence we take our general ideas of taxes, duties, imposts, excises, customs, etc.) embraces taxes on stamps, tolls for passage, etc. etc. and is not confined to taxes on importation only. It seems to me, that a tax on expence is an indirect tax; and I think, an annual tax on a carriage for the conveyance of persons, is of that kind; because a carriage is a consumeable commodity; and such annual tax on it, is on the expence of the owner. I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the Constitution, are only two, to wit, a capitation, or poll tax, simply, without regard to property, profession, or any other circumstance; and a tax on LAND. I doubt whether a tax, by a general assessment of personal property, within the United States, is included within the term direct tax. As I do not think the tax on carriages is a direct tax, it is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to, and in violation of, the Constitution; but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear case. I am for affirming the judgment of the Circuit Court. PATTERSON, JUSTICE. The question is, whether a tax upon carriages be a direct tax? If it be a direct tax, it is unconstitutional, because it has been laid pursuant to the rule of uniformity, and not to the rule of apportionment. In behalf of the Plaintiff in error, it has been urged, that a tax on carriages does not come within the description of a duty, impost, or excise, and therefore is a direct tax. It has, on the other hand, been contended, that as a tax on carriages is not a direct tax; it must fall within one of the classifications just enumerated, and particularly must be a duty or excise. The argument on both sides turns in a circle; it is not a duty, impost, or excise, and therefore must be a direct tax; it is not tax, and therefore must be a duty or excise. What is the natural and common, or technical and appropriate, meaning of the words, duty and excise, it is not easy to ascertain. They present no clear and precise idea to the mind. Different persons will annex different significations to the terms. It was, however, obviously the intention of the framers of the Constitution, that Congress should possess full power over every species of taxable property, except exports. The term taxes, is generical, and was made use of to vest in Congress plenary authority in all cases of taxation. The general division of taxes is into direct and indirect. Although the latter term is not to be found in the Constitution, yet the former necessarily implies it. Indirect stands opposed to direct. There may, perhaps, be an indirect tax on a particular article, that cannot be comprehended within the description of duties, or imposts, or excises; in such case it will be comprised under the general denomination of taxes.... The question occurs, how is such tax to be laid, uniformly or apportionately? The rule of uniformity will apply, because it is an indirect tax, and direct taxes only are to be apportioned. What are direct taxes within the meaning of the Constitution? The Constitution declares, that a capitation tax is a direct tax; and, both in theory and practice, a tax on land is deemed to be a direct tax. In this way, the terms direct taxes, and capitation and other direct tax, are satisfied.... Whether direct taxes, in the sense of the Constitution, comprehend any other tax than a capitation tax, and tax on land, is a questionable point. If Congress, for instance, should tax, in the aggregate or mass, things that generally pervade all the states in the Union, then, perhaps, the rule of apportionment would be the most proper, especially if an assessment was to intervene. This appears by the practice of some of the states, to have been considered as a direct tax. Whether it be so under the Constitution of the United States, is a matter of some difficulty; but as it is not before the court, it would be improper to give any decisive opinion upon it. I never entertained a doubt, that the principal, I will not say, the only, objects, that the framers of the Constitution contemplated as falling within the rule of apportionment, were a capitation tax and a tax on land. Local considerations, and the particular circumstances, and relative situation of the states, naturally lead to this view of the subject. The provision was made in favor of the southern States. They possessed a large number of slaves; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the states had but few slaves, and several of them a limited territory, well settled, and in a high state of cultivation. The southern states, if no provision had been introduced in the Constitution, would have been wholly at the mercy of the other states. Congress in such case, might tax slaves, at discretion or arbitrarily, and land in every part of the Union after the same rate or measure: so much a head in the first instance, and so much an acre in the second. To guard them against imposition in these particulars, was the reason of introducing the clause in the Constitution, which directs that representatives and direct taxes shall be apportioned among the states, according to their respective numbers.... ... I am, therefore, of opinion, that the judgment rendered in the Circuit Court of Virginia ought to be affirmed. IREDELL, JUSTICE. I agree in opinion with my brothers, who have already expressed theirs, that the tax in question, is agreeable to the Constitution; and the reasons which have satisfied me, can be delivered in a very few words, since I think the Constitution itself affords a clear guide to decide the controversy. The Congress possess the power of taxing all taxable objects, without limitation, with the particular exception of a duty on exports. There are two restrictions only on the exercise of this authority: 1. All direct taxes must be apportioned. 2. All duties, imposts, and excises must be uniform. If the carriage tax be a direct tax, within the meaning of the Constitution, it must be apportioned. If it be a duty, impost, or excise, within the meaning of the Constitution, it must be uniform. If it can be considered as a tax, neither direct within the meaning of the Constitution, nor comprehended within the term duty, impost or excise; there is no provision in the Constitution, one way or another, and then it must be left to such an operation of the power, as if the authority to lay taxes had been given generally in all instances, without saying whether they should be apportioned or uniform; and in that case, I should presume, the tax ought to be uniform; because the present Constitution was particularly intended to affect individuals, and not states, except in particular cases specified: And this is the leading distinction between the articles of Confederation and the present Constitution. As all direct taxes must be apportioned, it is evident that the Constitution contemplated none as direct but such as could be apportioned. If this cannot be apportioned, it is, therefore, not a direct tax in the sense of the Constitution. That this tax cannot be apportioned is evident. Suppose 10 dollars contemplated as a tax on each chariot, or post chaise, in the United States, and the number of both in all the United States be computed at 105, the number of Representatives in Congress. This would produce in the whole---1050. The share of Virginia being 19-105 parts, would be---Dollars 190. The share of Connecticut being 7-105 parts, would be---70. Then suppose Virginia had 50 carriages, Connecticut--2. The share of Virginia being 190 dollars, this must of course be collected from the owners of carriages, and there would therefore be collected from each carriage---3 80. The share of Connecticut being 70 dollars, each carriage would pay---35. If any state had no carriages, there could be no apportionment at all. This mode is too manifestly absurd to be supported, and has not even been attempted in debate.... There is no necessity, or propriety, in determining what is or is not, a direct, or indirect, tax in all cases.... It is sufficient, on the present occasion, for the court to be satisfied, that this is not a direct tax contemplated by the Constitution, in order to affirm the present judgment; since, if it cannot be apportioned, it must necessarily be uniform. I am clearly of opinion, this is not a direct tax in the sense of the Constitution, and, therefore, that the judgment ought to be affirmed. WILSON, JUSTICE. As there were only four Judges, including myself, who attended the argument of this cause, I should have thought it proper to join in the decision, though I had before expressed a judicial opinion on the subject, in the Circuit Court of Virginia, did not the unanimity of the other three Judges, relieve me from the necessity. I shall now, however, only add, that my sentiments, in favor of the constitutionality of the tax in question, have not been changed. CUSHING, JUSTICE. As I have been prevented, by indisposition, from attending to the argument, it would be improper to give an opinion on the merits of the cause. By the Court. Let the judgment of the Circuit Court be affirmed. The Chief Justice, ELLSWORTH, was sworn into office in the morning; but not having heard the whole of the argument, he declined taking any part in the decision of this cause.

Immigration and Naturalization Service v. Chadha (1983)

Relevant Facts: Chadha and 5 other immigrants were to be granted permanent resident status upon the expiration of their visas to stay in the US by an action of the US Attorney General (executive branch via President's approval of such an action), but the House of Representatives (legislative branch), after a resolution was brought forth to "put a legislative stamp on the action" in the House of Representatives, the House, without any further discussion in the Judiciary Committee or any copies of the resolution to be made available to other House members, submitted the resolution for a vote. After the House veto, it was not submitted to either the Senate or the President, but INS Judge reopened proceedings and Chadha was ordered deported. The resolution was denied, and an immigration judge ordered Chadha and the others deported. INS agreed with Chadha that the House action was unconstitutional. The Court of Appeals, Ninth Circuit received vast support in the form of amici curiae briefs from both the Senate and the House, and the Court agreed that the House action was unconstitutional. This Court affirms. [the resolution was not treated as a legislative act as per §244(c)(2)] Issue: Under constitutional law, does the House of Representatives actions in voting to deport 6 aliens contravene the actions of the US Attorney General's previous order to allow them to stay in the country when they met the grounds for suspending of deportation? Holding: Yes. The move itself was unconstitutional, as the House, by its one house action, took a power of the executive branch (Attorney General Katzenbach) and replaced it with a legislative act, which completely changed the act itself. Court's Rationale/Reasoning: After going through a lot of originalist context as to the Framers' intent to create three branches of government, and that the three branches were there in part to check on one another to preserve the sanctity of the powers, and the people. This was a legislative act in nature. This act also, in a sense, overruled the Attorney General and mandated Chadha's deportation. Congress actually delegated the authority it subsequently took away to the executive branch, specifically the Attorney General, of the authority to allow deportable aliens to remain the US should their case fit the hardship guidelines. Since Congress delegated such authority, the delegation of powers doctrine mandates that the action must be passed through both houses of Congress and then presented to the President as per Article 1, §7 of the Constitution. Congress must abide by that delegation unless it is legislatively altered or revoked. The are only four provisions set forth in the Constitution in which only one house of Congress would have to act: initiating impeachments, Senate power to conduct impeachment trials, Senate power to confirm presidential appointments, and Senate's power to ratify treaties. This further supports the notion that what the legislature's action was indeed was not an implied power. Congress cannot get around the slowness and tediousness of government, as this is what the Framers intended. Rule: Non-delegation doctrine: mandates that the action must be passed through both houses of Congress and then presented to the President as per Article 1, §7 of the Constitution. Congress must abide by that delegation unless it is legislatively altered or revoked. Important Dicta: The intent of the Framers in writing the Constitution was to provide a government which would satisfy both the large and small states, which is why there are two houses (Great Compromise). These two houses check on one another, and the executive checks on them, and the judiciary checks on both, with Congress checking on the judiciary. Anything else is unconstitutional. Dissenting: (Justice White) The Act was merely a delegation of rulemaking and legislation of law. The legislative veto is a check upon rulemaking by administrative agencies and upon broad based policy decisions of the Executive Branch.

Enumerated Powers

Powers explicitly delegated to Congress in Article I. (p. 144-145)

Jackson's Concurrence, Youngstown Sheet & Tube Co. v. Sawyer (1952)

Summary of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). The Steel Seizure Case Facts The Korean war effort increased the demand for steel. Disputes arose between steel industry management and labor that culminated in an announcement of a strike by the union. President Truman authorized Secretary of Commerce Sawyer to take possession of the steel industry and keep the mills operating. Issue Does the President of the United States have executive power under the war powers clause of the U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to seize the nation's steel mills? Holding and Rule (Black) No. The President does not have implicit or explicit executive power under the war powers clause of the U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to seize the nation's steel mills. The court held that there was no explicit statute or act of Congress which authorized the President to act in such a manner. The only two statutes which authorized the acquisition of personal and real property were not met here. Not only were such acts unauthorized, Congress specifically refused to grant such authorization. The court held that in order for the President to have this authority, it must be found somewhere explicitly in the Constitution, or implicitly in some historical context or foundation. The President cannot order policy; he can only suggest it. Congress can approve any proposal for regulation, policy, settlement of disputes, wages, and working conditions. None of this is delegated to the President. Under a textual approach to interpreting the Constitution the President's powers are curbed in this extension. Dissent (Vinson, Reed, and Minton) Many presidents have taken such action before, most notably Lincoln (Civil War, naval blockade, Emancipation Proclamation), Hayes and Cleveland (authorization of the use of the military to settle strikes) without state or legislative authority. Concurrence (Frankfurter) FDR's actions during the Great Depression resulted in extensions of executive authority, but his authority was not violative of the Constitution. Three laws had already been enacted by Congress when FDR enacted his policy, and six others were only enacted after Congress declared war, thereby falling under the "war powers." Concurrence (Jackson) In determining whether the executive has authority, there are three general circumstances: When the President acts pursuant to an express or implied authorization of Congress, the President's authority is at its greatest. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority. When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law. When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest. Justice Jackson stated that this case falls into category three. If the President's argument were accepted the executive branch could exert its authority over any business or industry. Notes The most important part of this case is the three part test set forth in Justice Jackson's concurrence. This case is also cited as Youngstown v. Sawyer and as Youngstown Sheet Tube v. Sawyer.

Hamdi v. Rumsfeld (2004)

Vote: On the question of the validity of Hamdi's detention: 5 (Breyer, Kennedy, O'Connor, Rehnquist, Thomas) 4 (Ginsburg, Scalia, Souter, Stevens) Vote: On the question of the Hamdis' access to courts and lawyers: 8 (Breyer, Ginsburg, Kennedy, O'Connor, Rehnquist, Scalia, Souter, Stevens) 1 (Thomas) Opinion announcing the judgment of the Court: O'Connor Opinion concurring in part, dissenting in part, and concurring in judgment: Souter Dissenting opinions: Scalia, Thomas FACTS One week after the September 11, 2001, al Qaeda terrorist attacks on the United States, Congress passed the Authorization for Use of Military Force (AUMF). This resolution gave President George W. Bush authority to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States." On the basis of this congressional grant of authority, Bush ordered American armed forces to Afghanistan to attack al Qaeda and the Taliban regime that supported it. During this military effort, Afghan elements supporting the United States captured twenty-year-old Yaser Esam Hamdi and delivered him to U.S. forces. Hamdi was an American citizen by virtue of his birth in Louisiana, but his family had moved to Saudi Arabia when he was a child. After being interrogated in Afghanistan, Hamdi was transferred first to the U.S. naval base at Guantánamo Bay, Cuba, then to military prisons in Norfolk, Virginia, and Charleston, South Carolina. The government claimed that Hamdi was an "enemy combatant," and as such could be held indefinitely without formal charges, court proceedings, access to counsel, or the freedom to communicate with anyone beyond the prison walls. In June 2002 Hamdi's father, Esam Fouad Hamdi, filed a petition for habeas corpus on behalf of his son against Defense Secretary Donald Rumsfeld, claiming the continued detention without formal charges or access to lawyers or the courts violated the younger Hamdi's constitutional right to due process of law. Hamdi's father argued that his son was not engaged in military activity but had gone to Afghanistan as a relief worker. The United States countered that Hamdi had received military training in Afghanistan and had joined a Taliban unit prior to his capture in a theater of war. The government's allegations as to Hamdi's participation in Taliban activities were submitted in the form of a statement by Michael Mobbs, a Defense Department official. This document, referred to as the Mobbs Declaration, contained little in the way of direct factual evidence. After a series of hearings at the district and circuit court levels, the Court of Appeals for the Fourth Circuit ruled in favor of the government's position, holding that Hamdi could be detained and was only entitled to the limited judicial determination of whether the government had acted properly under its war powers. JUSTICE O'CONNOR ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH THE CHIEF JUSTICE, JUSTICE KENNEDY, AND JUSTICE BREYER JOIN. At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an "enemy combatant" and to address the process that is constitutionally owed to one who seeks to challenge his classification as such.... We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.... The threshold question before us is whether the Executive has the authority to detain citizens who qualify as "enemy combatants." There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was "'part of or supporting forces hostile to the United States or coalition partners'" in Afghanistan and who "'engaged in an armed conflict against the United States'" there. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized. The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF [the Authorization for Use of Military Force resolution].... The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use. The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin [1942]. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.... There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States"; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict. In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject.... As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life. It is a clearly established principle of the law of war that detention may last no longer than active hostilities. Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF. Ex parte Milligan (1866), does not undermine our holding about the Government's authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.... Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status.... Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. Only in the rarest of circumstances has Congress seen fit to suspend the writ. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. All agree suspension of the writ has not occurred here.... ... [A]s critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan.... We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails. On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.... [T]he law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of war-making belong in the hands of those who are best positioned and most politically accountable for making them. The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis. Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.... We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision maker. These essential constitutional promises may not be eroded. At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant.... We think it unlikely that this basic process will have the dire impact on the central functions of war-making that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized.... While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here.... In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.... Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions.... ... Plainly, the "process" Hamdi has received is not that to which he is entitled under the Due Process Clause. There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal.... Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case. The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings. It is so ordered. JUSTICE SOUTER, WITH WHOM JUSTICE GINSBURG JOINS, CONCURRING IN PART, DISSENTING IN PART, AND CONCURRING IN THE JUDGMENT. ... The plurality [accepts] the Government's position that if Hamdi's designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by ... the Authorization for Use of Military Force. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act [prohibiting the detention of citizens except pursuant to an Act of Congress] entitles Hamdi to be released.... ... Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power. It is fairly read to authorize the use of armies and weapons, whether against other armies or individual terrorists. But ... it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit.... Because I find Hamdi's detention ... unauthorized by the Force Resolution, I would not reach any questions of what process he may be due in litigating disputed issues in a proceeding under the habeas statute or prior to the habeas enquiry itself. For me, it suffices that the Government has failed to justify holding him in the absence of a further Act of Congress, criminal charges, [or] a showing that the detention conforms to the laws of war.... Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose. Although I think litigation of Hamdi's status as an enemy combatant is unnecessary, the terms of the plurality's remand will allow Hamdi to offer evidence that he is not an enemy combatant, and he should at the least have the benefit of that opportunity. It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality's determinations (given the plurality's view of the Force Resolution) that someone in Hamdi's position is entitled at a minimum to notice of the Government's claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker; nor, of course, could I disagree with the plurality's affirmation of Hamdi's right to counsel. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas. Subject to these qualifications, I join with the plurality in a judgment of the Court vacating the Fourth Circuit's judgment and remanding the case. JUSTICE SCALIA, WITH WHOM JUSTICE STEVENS JOINS, DISSENTING. ... This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty. Although I share the Court's evident unease as it seeks to reconcile the two, I do not agree with its resolution. Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.... JUSTICE O'CONNOR, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.... There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods.... Where the Executive has not pursued the usual course of charge, committal, and conviction, it has historically secured the Legislature's explicit approval of a suspension. In England, Parliament on numerous occasions passed temporary suspensions in times of threatened invasion or rebellion.... Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I.... Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ.... ... [T]he reasoning and conclusion of [ Ex parte] Milligan logically cover the present case. The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority. But if the law of war cannot be applied to citizens where courts are open, then Hamdi's imprisonment without criminal trial is no less unlawful than Milligan's trial by military tribunal.... The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal.... ... Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today's opinion prescribes under the Due Process Clause. But there is a world of difference between the people's representatives' determining the need for that suspension (and prescribing the conditions for it), and this Court's doing so. The plurality finds justification for Hamdi's imprisonment in the Authorization for Use of Military Force.... This is not remotely a congressional suspension of the writ, and no one claims that it is.... The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.... There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures--an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people. Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group.... Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation.... I frankly do not know whether these tools are sufficient to meet the Government's security needs, including the need to obtain intelligence through interrogation. It is far beyond my competence, or the Court's competence, to determine that. But it is not beyond Congress's. If the situation demands it, the Executive can ask Congress to authorize suspension of the writ--which can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today. To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court. If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.... Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis--that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent. JUSTICE THOMAS, DISSENTING. The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners' habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs.... I do not think that the Federal Government's war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government's compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent.

Jurisdiction*

The authority of a court to hear and decide a legal dispute. (pp. 89-92)

Appellate Jurisdiction

The authority of a court to hear and decide a case that has been previously decided by a lower court. The U.S. Supreme Court primarily exercises appellate jurisdiction. (p. 14)

Original Jurisdiction

The authority of a court to hear and decide a case that has not been previously heard by any other court. The U.S. Supreme Court has a limited degree of original jurisdiction as granted by Article III of the Constitution. (p. 14)

Mootness*

A condition under which a dispute is no longer appropriate for court resolution because the issue has resolved itself or conditions have so changed that the court is unable to grant the requested relief. For example, a lawsuit for divorce becomes moot if the marriage ends due to the death of one of the parties. (p. 95)

"Mere Designation" of Executive Power

A constitutional interpretation holding that the president may exercise only those powers explicitly granted in Article II. (p. 194)

Political Questions*

An issue in a dispute that cannot be adequately resolved by a judicial determination of legal rights, but is more appropriately addressed by the legislative branch, the executive branch, or the electorate. (pp. 96-107)

Korematsu v. United States (1944)

Brief Fact Summary. During World War II, a military commander ordered all persons of Japanese descent to evacuate the West Coast. The Petitioner, Korematsu (Petitioner), a United States citizen of Japanese descent, was convicted for failing to comply with the order. Synopsis of Rule of Law. Legal restrictions that curtail the civil rights of a single racial group are subject to the most rigid scrutiny. But, pressing public necessity may sometimes justify such restrictions. Facts. President of the United States Franklin Roosevelt (President Roosevelt) issued an executive order authorizing military commanders to prescribe military areas from which any or all persons may be excluded. Thereupon, a military commander ordered all persons of Japanese descent, whether or not they were United States citizens, to leave their homes on the West Coast and to report to "Assembly Centers." The Petitioner, a United States citizen of unchallenged loyalty, but of Japanese descent, was convicted under a federal law making it an offense to fail to comply with such military orders. Issue. Was it within the power of Congress and the Executive to exclude persons of Japanese ancestry from the West Coast at the time that they were excluded? Held. Yes. At the time the exclusion was ordered, it was justified. Justice Hugo Black stated that although the exclusion order imposed hardships upon a large number of American citizens, hardships are part of war. When, under conditions of warfare, our shores are threatened by hostile forces, the power to protect them must be commensurate with the threatened danger. Dissent. Justice Frank Murphy (J. Murphy) argued that the exclusion at issue here goes over the brink of constitutional power and falls into the abyss of racism. Although we must extend great deference to the judgments of the military, it is essential that there be definite limits to military discretion. Moreover, the military order is not reasonably related to the dangers it seeks to prevent. Justice Robert Jackson (J. Jackson) stated he would not distort the United States Constitution (Constitution) to approve everything the military may deem expedient. Discussion. Ironically, this case establishes the "strict scrutiny" standard of review, thereby leading to the invalidation of much race-based discrimination in the future.

Ex parte Quirin (1942)

Brief Fact Summary. Four enemies of war filed a habeas corpus to contest the right to a civil trial instead of a trial in front of a military tribunal. Synopsis of Rule of Law. The Court will not set aside acts ordered by the President concerning acts of war, as that power is invested to the President under the Constitution Facts. Four men were captured on American soil and accused of acts in violation of the Articles of War. Under this act, their crimes are to be tried in front of a military tribunal and they were not afforded a trial in a civil court. A military tribunal trial does not afford a person all of the rights afforded under the United States Constitution. These four men were born in Germany and have all lived in the United States. They all received training at a school in Germany which taught explosive methods and secret writings. Each of the petitioners left Germany on boats in civilian clothing, and came to different coast in the United States. With explosives, they planned on retrieving secret information and were instructed to destroy the war industries and war facilities in the United States. The petitioners were caught on shore, and detained. Issue. Whether a presidential order, which creates a military tribunal to try war crimes committed by war criminals/enemy belligerent's instead of trying these cases in a civil court is constitutional. Held. Yes. Absent clear conviction that a presidential order violates the constitution, the court will not set those orders aside. During times of War, the constitution explicitly states the President may wage war and carry into effect all laws concerning; the conduct of the war, regulation of Armed forces, and all laws defining and punishing offences against the laws of nations. Laws of nations or the law of war determine the rights and status of enemies of the country, or enemy belligerents. Here Congress passed the Articles of War act which created the military tribunal. The President ordered all enemies be tried in front of this tribunal and would not be allowed access to civil courts, thus reliving them of the right to habeas corpus. This court states that as long as those crimes are indeed crimes of war, they can be tried in front of this tribunal, and this order is constitutional. If the crime is not a crime of war, then it should be tried in front of a jury. While the citizens of the United States are owed their 5th and 6th amendment rights, it is not clear that these rights should extend to non-citizens and enemies of war. This court will not afford those rights to enemies of war that violate laws of war. Discussion. The court makes distinctions between prisoners of war and enemy belligerent. It is one thing to be at war and captured another to sneak into the country to steal information and plan to destroy property there. Depending on the distinction of the criminal can affect his/her rights; however, here it is clear the prisoners are enemy belligerents who clearly violated laws of war.

In re Neagle (1890)

Facts of the Case Suspecting a plot against Justice Stephen J. Field's life, the U.S. Attorney General appointed Neagle, a U.S. Marshall, to protect him. Acting as Field's bodyguard, Neagle shot and killed a man who appeared about to attack the justice. After California officials arrested and jailed Neagle, the U.S. sought his release by a writ of habeas corpus. Question Was the state obligated to obey the writ even though no national statute empowered the Attorney General to provide judges with bodyguards? Conclusion Yes. The Court held that the Attorney General acted appropriately since assigning Neagle as Field's bodyguard assured that the nation's laws would be faithfully executed. Furthermore, Neagle's actions were consistent with a congressional statute which provided U.S. Marshalls with "the same powers, in executing the laws" as state sheriffs and deputies (who would have been allowed to deter an attack on Field's life).

Nixon v. Fitzgerald (1982)

Facts: In 1968, Fitzgerald, a civilian Air Force analyst at the time, testified before Congress about inefficiencies and overspending concerning the production of C-5A transport planes. Almost a year after providing testimony, Fitzgerald was fired from the Air Force. President Nixon claimed responsibility for this action. Consequently, Fitzgerald sued President Nixon for damages once the Civil Service Commission concluded that his dismissal was unjust. Issue: The legal question at hand was whether Presidents, in this case, President Nixon, was immune from civil suits while serving in office. Holding: The Court held that President Nixon was in fact immune from civil suits while in office. Majority Opinion Reasoning: The Court reasoned that the President "is entitled to absolute immunity from damages liability predicated on his official acts." Justice Powell further argued that this level of immunity was necessary for the President to effectively serve in the office, which is inherently a position predicated on making profoundly difficult decisions. Powell asserted that the "President's unique office" is "rooted in the constitutional tradition of separation of powers and supported by our history." Conclusion: This was an important case because it reaffirmed the President's power and protection from civil suits. More interestingly, only a few years later, the Supreme Court would find that the President was not immune from cooperating in criminal investigations due to the Watergate Scandal.

Delegation Powers*

From the First Congress on, the legislature has delegated its power to other branches or even nongovernmental entities. One reason why Congress would do this is they are often busy with other matters and must delegate some authority if it is to fulfill all of its responsibilities. Another is that Congress might be able to formulate general policies but lacks the expertise to fill in the details. Provides for the need for flexibility. Finally, Congress might want to delegate for political reasons (to avoid dealing with certain "hot potato" issues).

Rasul v. Bush (2004)

Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of jurisdiction, holding that, under Johnson v. Eisentrager, 339 U.S. 763, aliens detained outside United States sovereign territory may not invoke habeas relief. The Court of Appeals affirmed. Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. Pp. 4—17. (a) The District Court has jurisdiction to hear petitioners' habeas challenges under 28 U.S. C. §2241, which authorizes district courts, "within their respective jurisdictions," to entertain habeas applications by persons claiming to be held "in custody in violation of the ... laws ... of the United States," §§2241(a), (c)(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty." Pp. 4—16. (1) The Court rejects respondents' primary submission that these cases are controlled by Eisentrager's holding that a District Court lacked authority to grant habeas relief to German citizens captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in occupied Germany. Reversing a Court of Appeals judgment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, (c) were captured outside U.S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U.S., at 777. Petitioners here differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted critical facts were relevant only to the question of the prisoners' constitutional entitlement to habeas review. Ibid. The Court's only statement on their statutory entitlement was a passing reference to its absence. Id., at 768. This cursory treatment is explained by the Court's then-recent decision in Ahrens v. Clark, 335 U.S. 188, in which it held that the District Court for the District of Columbia lacked jurisdiction to entertain the habeas claims of aliens detained at Ellis Island because the habeas statute's phrase "within their respective jurisdictions" required the petitioners' presence within the court's territorial jurisdiction, id., at 192. However, the Court later held, in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494—495, that such presence is not "an invariable prerequisite" to the exercise of §2241 jurisdiction because habeas acts upon the person holding the prisoner, not the prisoner himself, so that the court acts "within [its] respective jurisdiction" if the custodian can be reached by service of process. Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager does not preclude the exercise of §2241 jurisdiction over petitioners' claims. Pp. 6—11. (2) Also rejected is respondents' contention that §2241 is limited by the principle that legislation is presumed not to have extraterritorial application unless Congress clearly manifests such an intent, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248. That presumption has no application to the operation of the habeas statute with respect to persons detained within "the [United States'] territorial jurisdiction." Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285. By the express terms of its agreements with Cuba, the United States exercises complete jurisdiction and control over the Guantanamo Base, and may continue to do so permanently if it chooses. Respondents concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Considering that §2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute's geographical coverage to vary depending on the detainee's citizenship. Aliens held at the base, like American citizens, are entitled to invoke the federal courts' §2241 authority. Pp. 12—15. (3) Petiti oners contend that they are being held in federal custody in violation of United States laws, and the District Court's jurisdiction over petitioners' custodians is unquestioned, cf. Braden, 410 U.S., at 495. Section 2241 requires nothing more and therefore confers jurisdiction on the District Court. Pp. 15—16. (b) The District Court also has jurisdiction to hear the Al Odah petitioners' complaint invoking 28 U.S. C. §1331, the federal question statute, and §1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed these claims for want of jurisdiction because the petitioners lacked the privilege of litigation in U.S. courts. Nothing in Eisentrager or any other of the Court's cases categorically excludes aliens detained in military custody outside the United States from that privilege. United States courts have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578. And indeed, §1350 explicitly confers the privilege of suing for an actionable "tort ... committed in violation of the law of nations or a treaty of the United States" on aliens alone. The fact that petitioners are being held in military custody is immaterial. Pp. 16—17. (c) Whether and what further proceedings may become necessary after respondents respond to the merits of petitioners' claims are not here addressed. P. 17. 321 F.3d 1134, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.

Mistretta v. United States (1989)

Relevant Facts: Since the earliest federal criminal statutes were adopted, federal judges were afforded broad latitude to select an appropriate sentence for those convicted thereunder. However, after many years of wide disparities in punishment for the same offenses, Congress saw fit to institute reforms aimed at, inter alia, providing uniform sentencing guidelines. To that end, Congress adopted the Sentencing Reform Act of 1984. Under the terms of the Act, Congress delegated authority for determining appropriate sentences to the United States Sentencing Commission (The Commission). The Commission, consisting of judges and non-judges, would be part of the judicial branch and its determinations would be binding on federal judges as they sought to impose sentences on criminal defendants. John Mistretta was arrested and charged with cocaine related offenses, including attempted distribution. At trial, Mistretta moved to have the guidelines declared unconstitutional, arguing that Congress exceeded its authority to delegate power and violated separation of powers principles. The Court denied his motion, Mistretta plead guilty, and the Court sentenced him to eighteen months under the sentencing guidelines. Thereafter, Mistretta appealed his sentenced to the Eighth Circuit. However, both Mistretta and the United States petitioned under Supreme Court Rule 18 for certiorari before judgment. The Court granted certiorari, and noted the "imperative public importance" of the question presented as well as the confusion amongst district courts regarding the viability of the sentencing guidelines. Issue: Did Congress exceed its delegation authority by creating the Sentencing Commission, housed within the judicial branch, whose determinations are outside the control of Congress and binding on federal judges? Does the Act at issue here offend separation of powers principles? Holding: No, Congress properly exercised delegation authority by creating a Commission with a sufficiently clear mandate to effectuate Congressional intent. No, the creation of the Commission within the judicial branch and the service of federal judges alongside members appointed by the President are consistent with separation of powers. Reasoning: Justice Blackmun delivered the opinion of the Court, joined by all but Justice Scalia (dissent below) and joined by Justice Brennan as to all but Note 11. First, the majority noted the background of sentencing disparities that lead to the Congressional Act at issue here. Turning to the Constitutional questions, the majority considered delegation principles. Under the precedents of the Court, Congress may delegate responsibility so long as the delegation includes an "intelligible principle" to guide exercise of the authority delegated and so long as Congress has not delegated its legislative function. The Court concluded that Congress provided sufficient guidance here, giving the Commission a lengthy list of factors that should influence sentences and detailing a list of considerations specific to each defendant that should guide sentencing decisions. The majority rejected the argument that Congress, having granted broad authority, had thus violated delegation authority principles. Congress may delegate broad powers so long as the delegation is accompanied by sufficiently definite guiding principles. Next, the majority considered separation of powers arguments. Citing the long history of separation of powers jurisprudence, emanating from and consistent with Madison's plan for separate but coequal branches of government, Justice Blackmun explained that the Court would view with suspicion any attempt to shift functions historically and properly undertaken by one branch of government to another. In this case, responding to claims that the Commission unconstitutionally interfered with the independence of the Judiciary by having judges serve and by forcing them to work with non-judges, the Court placed great emphasis on the proper understanding of the role of the Commission and its placement within government structures. While federal judicial operations are limited to cases and controversies, that general understanding is not without exceptions. When, as here, a congressionally created body serves in a judicial rule-making capacity that does not interfere with the prerogatives of other branches, and indeed has Congressional blessing, there is no violation of separation of powers. Furthermore, the Court analogized judicial service on the commission to service in rule-making committees under the various Rules Enabling Acts. Finally, as to the composition of the Commission, the Court concluded that a per se rule prohibiting judicial service in a Commission of this nature is inappropriate, and that judicial participation here neither threatened judicial independence nor entangled judges with political operations. While the Court was cautious in evaluating the unique nature of the Commission at issue, the majority concluded that Congress may constitutionally rely on the expertise of federal judges, working with non-judges, to create proper rules that balance the important interests at stake while maintaining properly separated branches of government. Concurrence: Justice Brennan joined the majority as to all but Footnote 11, wherein the Court concluded that the Commission could include the death penalty within its guidelines only if authorized by Congress in the first instance and consistent with the guidelines generally provided to the Commission. Dissent: Justice Scalia dissented. First, Justice Scalia agreed that Congress had not exceeded its authority to delegate here, citing the specific guidance provided. However, as to separation of powers and the nature of authority delegated, Justice Scalia objected to a Commission that, by the terms of the Act, would be contained within the judicial branch but whose determinations would have the force of law. As Justice Scalia explained, the commission was not in the business of enforcing the laws of Congress as adopted, and thus not within the Executive Branch. Similarly, the Commission had no role in adjudicating the rights of individual parties or in determining guilt, innocence, or sentencing of individual defendants. Rather, the Commission essentially passed laws. Discussing the majority's contention regarding the proper placement of the Commission, Justice Scalia noted that it made little sense to describe a body within one branch of government when it was not responsible to that branch nor did it owe its authority to that branch. Rather, the Commission was a legislative creation subject to alteration by the legislature, and exercising traditionally legislative functions. Concluding, Justice Scalia opined that the majority erred not in assigning any particularly degree of comingling of functions between the branches, but in assuming this case was about the balance between the branches. In Justice Scalia's view, Congress had effectively created a new branch (he termed it a "Junior Varsity Congress") given guidance by Congress but independently exercising legislative authority. Conclusion: Congress may delegate authority to create sentencing guidelines to a Commission composed of federal judges and other experts and empower that body to create binding guidelines. Service of federal judges in a non-judicial, rule-making capacity does not offend separation of powers under the unique circumstances of the Commission at issue here.

Clinton v. City of New York (1998)

Relevant Facts: The Line Item Veto Act gave the President the right to veto any one part of a bill which landed on his desk, as long as the President provided that his veto was for the good of the country. Cancellation meant to rescind, or in the case of a direct spending item, a veto rendered the provision as prevented from being implemented. There was also an expedited procedure if Congress were to vote down the veto. New York challenged the Act (LIVA), b/c President Clinton (1) canceled a provision in the Balanced Budget Act of 1997 that gave NY preferential treatment under the Medicaid law; as no other state would have received such treatment; and (2) President cancelled a tax provision in the Taxpayer Relief Act of 1997 that allowed owners of certain food refiners and processors to defer paying tax on the gain from the sale of their stock if they sold to eligible farmers' cooperatives. (Since very few taxpayers could take advantage of this expenditure, it was a limited tax benefit eligible for cancellation, and some ID farmers challenged this provision as well.) The federal gov't said NY inappropriately characterized taxes it had collected from Medicaid providers, and unless granted, NY stood to owe as much as $2.6B. Issue: Under constitutional law, is a President's use of a line-item veto, codified through Congressional legislation, viable as a proper law, when the President has authority to cancel items which gave a state preferential treatment, and also canceled a limited tax benefit? Holding: No. If the President wants to try and receive more power in the legislative process, he or she should seek relief through the making of a Constitutional Amendment, as per Article 5. Court's Rationale/Reasoning: The principal terms of LIVA, in regard to cancellation, are express in the defined terms of one of the sections. In essence, the President, through his actions in veto particular items on a bill, renders an enumerated power of Congress ineffective, and subsequently cancelled. Clinton has also amended a bill in his act. These powers are not defined as per Article 1, Section 7 of the Constitution (unilateral amending and repealing of statutes). In an originalist take, the Court goes into why the Constitution is silent as to these issues. What the Court decided was that the Framers meant that a bill must go through what they called "a single, finely wrought and exhaustively considered, proocedure," (quoting Chadha). Despite the government's argument that LIVA was just a creative way of reinforcing Presidential creative spending measures, the notion of having a President have the authority to eliminate and amend certain portions of bills after they went through the legislative process no longer becomes a single exhaustive process. Instead it becomes a process with multiple possibilities, two of which (eliminating and amending) are contrary to any express power in Article I or II. If the President were to be able to get more power through a LIVA-like statute, it cannot be done so through the legislature, but instead must be done through the constitutional amendment process, as expressed in Art. 5. Rule: The power to enact statutes must come from "a single, finely wrought and exhaustively considered, procedure." Important Dicta: No. Concurring/Dissenting: (Justices Scalia, O'Connor and Breyer): These justices mention that the prohibition on executive reduction of congressional dispositions is much more limited than the prohibition on executive augmentation of congressional dispositions, but they do not come from Art. I, section 7. They come from the doctrine of unconstitutional delegation of legislative authority. This doctrine states: when authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers. As far as political lawmaking is concerned, there is no difference between what Congressional authorization of a President to cancel line items, or the Congressional authority to augment to them. The latter has been done since the Founding of the Nation. Nixon said so (impounding appropriated funds was a constitutional right) back in 1973, even though he was proven wrong 2 years later. It is the terminology of the bill which this minority has a problem with: if the bill allowed the President to "decline to spend" any item of spending, it would be constitutional. But simply "cancelling" any item is technically different, but not really. Dissenting: (Justices Scalia, O'Connor and Breyer): The same three justices find a minority premise that the majority thinks the President is in effect canceling laws and amending them is unconstitutional is incorrect. Instead, the minority feels the President is merely executing a power conferred on him by Congress, by which he is allowed to render ineffective certain items on a bill. Hey, this Court even has that power, as they can decide on the Federal Rules of Civil Procedure as far as which ones are appropriate to be codified. President also has the authority through the Graham-Rudman-Hollings Act to issue a final order, which has the effect of canceling certain requests for spending. The Court goes to the Jackson test from the Steel Seizure case and determines the President in this situation, in which it determines the President is acting within his executive power. President has previously been allowed to repeal acts which were inequitable or unfair, unreasonable or anything else in the public interest. Thus, LIVA is a novel act, which neither repeals nor amends laws, and thus do not violate any separation of powers found in the Constitution.

Ex parte McCardle (1869)

Summary of Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868). Facts After the Civil War, Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. McCardle (D) was a Mississippi newspaper editor held in military custody on charges of publishing libelous and inflammatory articles. McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. The Act authorized federal courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. The circuit court denied McCardle's habeas corpus writ but the Supreme Court sustained jurisdiction to hear an appeal on the merits. After arguments were heard however, Congress passed an act on March 27, 1868, repealing the portion of the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the Supreme Court of jurisdiction on any such appeals, past or present. Issues Does Congress have the power to make exceptions to the Supreme Court's appellate jurisdiction in cases in which it has already granted jurisdiction? Must the Court always first determine if it is has jurisdiction to review a case? Holding and Rule (Chase) Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to make exceptions to that appellate jurisdiction. Yes. The Court must always determine first if it is has jurisdiction to review a case. The court held that appellate jurisdiction of the Court is not derived from acts of Congress, but from the Constitution, and is conferred with such exceptions and under such regulations as Congress shall make. The court held that when Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final decisions in certain cases, it operates as a negation or exception of such jurisdiction in other cases. In this case, the repeal of the act necessarily removed jurisdiction. Without jurisdiction, the Court cannot proceed; the only thing it can do is announce that fact and dismiss the cause of action. When a legislative act is repealed, it is as if it had never existed except in transactions past and closed. Thus, no judgment can be rendered in a suit after repeal of the act under which it was brought. Disposition Dismissed for lack of jurisdiction. Notes In this case, Congress withdrew the right to hear habeas corpus cases only when the Court got a case under the Act of 1867 on appeal from a lower court. The Supreme Court would still have been able to hear an original petition for habeas corpus filed in the Supreme Court.

Martin v. Hunter's Lessee (1816)

Summary of Martin v. Hunter's Lessee, 14 U.S. 304, 4 L. Ed. 97, 1 Wheat. 304, 1816 U.S. LEXIS 333 (1816). Facts The state of Virginia enacted legislation during the Revolutionary War that gave the State the power to confiscate the property of British Loyalists. Hunter was given a grant of land by the State. Denny Martin held the land under devise from Lord Thomas Fairfax. In an action in ejectment, the trial court found in favor of Martin and the court of appeals (the highest Virginia state court) reversed. The Supreme Court of the United States reversed in favor of Martin, holding that the treaty with England superseded the state statute, and remanded the case to the Virginia court of appeals to enter judgment for Martin. The Virginia court refused, asserting that the appellate power of the U.S. Supreme Court did not extend to judgments from the Virginia court of appeals. Issue Does the U.S. Supreme Court have appellate jurisdiction over state court decisions involving federal law? Holding and Rule Yes. The U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law. The federal power was given directly by the people and not by the States. Article III, Section 2, Clause 2 of the U.S. Constitution states that "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction". This demonstrates a textual commitment to allow Supreme Court review of state decisions. If the Supreme Court could not review decisions from the highest State courts, the state courts necessarily would be excluded from hearing cases involving questions of federal law. It had already been established that state courts have the power to rule on issues of federal law, and therefore the Supreme Court must be able to review those decisions. The Court also held that the Supremacy Clause states that the federal interpretation trumps the states' interpretation. The Court rejected concerns regarding state judicial sovereignty. The Supreme Court could already review state executive and legislative decisions and this case was no different. Story then confronted the arguments that state judges were bound to uphold the Constitution just as federal judges were, and so denying state interpretations presumed that the state judges would less than faithfully interpret the Constitution. The Court stated that the issue did not concern bias; rather, it concerned the need for uniformity in federal law. The Supreme Court concluded that the decision by the Virginia court of appeals was in error. Disposition Judgment reversed. Fifty years after the Supreme Court handed down this opinion, it held in Ex parte McCardle that while the Court's appellate jurisdiction is subject to exceptions and regulations imposed by Congress, it is derived from the Constitution itself and not from acts of Congress.

McCulloch v. Maryland (1819)

Summary of McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579 (1819). Facts Maryland (P) enacted a statute imposing a tax on all banks operating in Maryland not chartered by the state. The statute provided that all such banks were prohibited from issuing bank notes except upon stamped paper issued by the state. The statute set forth the fees to be paid for the paper and established penalties for violations. The Second Bank of the United States was established pursuant to an 1816 act of Congress. McCulloch (D), the cashier of the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Maryland law. Maryland sued McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested the constitutionality of that act. The state court found for Maryland and McCulloch appealed. Issues Does Congress have the power under the Constitution to incorporate a bank, even though that power is not specifically enumerated within the Constitution? Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution? Holding and Rule (Marshall) Yes. Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause (Article I, section 8). No. The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution. The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution which excludes incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate and plainly adapted to that end, and which are not prohibited, may be employed to carry it into effect pursuant to the Necessary and Proper clause. The power of establishing a corporation is not a distinct sovereign power or end of Government, but only the means of carrying into effect other powers which are sovereign. It may be exercised whenever it becomes an appropriate means of exercising any of the powers granted to the federal government under the U.S. Constitution. If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. The Bank of the United States has a right to establish its branches within any state. The States have no power, by taxation or otherwise, to impede or in any manner control any of the constitutional means employed by the U.S. government to execute its powers under the Constitution. This principle does not extend to property taxes on the property of the Bank of the United States, nor to taxes on the proprietary interest which the citizens of that State may hold in this institution, in common with other property of the same description throughout the State. Disposition Reversed; judgment for McCulloch.

Powell v. McCormack (1969)

Summary of Powell v. McCormack S. Ct. 1969 Facts: Powell was elected by the citizen of NY to be their Representative in the House for the 90th Congress. When the oath was being administered he was asked to step aside. A Select Committee determined that although Powell met the Constitutional requirements, they felt because he asserted an unwarranted privilege of immunity from NY courts, and wrongfully diverted funds, and made false reports on expenditures of foreign currency, he should be excluded from taking his seat. House speaker McCormack determined that a majority vote would render Powell's seat vacant, and a vote thereby was rendered. Issue: Whether the House alone, under Article I, Sec. 5, has the power to determine who is qualified to be a member, under the "textual commitment," to "be the judge of the qualifications of is own members? Holding: No, the House can only judge the three qualifications as set forth in the Constitution. Procedure: District Ct. dismissed for lack of jurisdictional subject matter. Ct of App affirmed Dismissal. Reversed. Rule: Requirements for a seat within the Congress, AI; S2, age, citizenship, and residence. Ct. Rationale: Article I, Sec 5 does not confer judicially unreviewable powers upon the Congress as it relates to the setting of qualifications of its members. If it did that would be a political question that this court would be barred from entering into. Historically the Constitution leaves the House without authority to exclude persons, who met the Constitutional requirements, and who have been duly elected by their constituents. Congress has the power to punish its members' behavior, and expel but it does not have the Constitutional power to exclude or deny entrance. PL A: The Constitution provides definite criteria for entrance into the House of Representative, and does not confer the power to exclude afterward to members of the House. Def A: Under the Constitution's AI, S5 the House has power to determine the qualifications necessary for membership within. Political Questions: Lack of respect due a coordinate branch of government, or involvement in the initial policy determination of a kind clearly for non-judicial discretion.

U.S. Term Limits, Inc. v. Thornton (1995)

Summary of US Term Limits, Inc. v. Thornton Facts: The Arkansas Constitution was amended to prohibit the name of an otherwise eligible candidate for Congress from appearing on the ballot if the candidate has already served three terms in the House of Representatives or two terms in Senate. Issue: Can the states add qualifications for members of Congress? Holding: No. The sole purpose of the amendment is to impose an additional qualification for office, which violates the Qualifications Clauses. The provisions of Art. I, § 2, cl. 2 and Art. I, § 3, cl. 3 - enumerating the age, citizenship, and residence requirements for members of congress—are exclusive. Neither Congress nor the states may later or add to these qualifications, because this would be contrary to the Framers' intent of a uniform national legislature elected by the people voting for whom they wish. Judgment: Amendment is unconstitutional.

Rule 10

The Court has established to govern the certiorari decision-making process: Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

Adequate and Independent Test*

The Court will refrain from reviewing state court interpretations of state constitutions and law unless those decisions involve issues of federal law.

Judicial Review*

The power of the courts to examine laws and other government actions for their compatibility with the Constitution and to declare void those actions found in conflict with the Constitution. (pp. 58, 64-89)

Standing to Sue*

The right of a person to bring a lawsuit because he or she is directly involved in the dispute or directly affected by the issues at stake. (pp. 107-109)

Separation of Powers

The term "trias politica" or "separation of powers" refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances. The traditional characterizations of the powers of the branches of American government are: -The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government. -The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. -The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it. While separation of powers is key to the workings of American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

Boumediene v. Bush (2008)

Vote: 5 (Breyer, Ginsburg, Kennedy, Souter, Stevens) 4 (Alito, Roberts, Scalia, Thomas) OPINION OF THE COURT: Kennedy Concurring opinion: Souter Dissenting opinions: Roberts, Scalia [Please consult case excerpts and the discussion of Hamdi v. Rumsfeld (2004) and Hamdi v. Rumsfeld (2006) for more information on "enemy combatants," the Military Commissions Act, and the Detainee Treatment Act.] FACTS The United States captured Lakhdar Boumediene (and other petitioners whose cases were joined with this one) in Afghanistan and detained him at Guantanamo Bay in Cuba after a Combatant Status Review Tribunal (CSRT) designated him an enemy combatant. Maintaining that he had not been a member of al Qaeda or the Taliban, Boumediene requested a writ of habeas corpus to challenge his detention. The district court dismissed the case for lack of jurisdiction (because Guantanamo is outside of sovereign U.S. territory) and the U.S. Court of Appeals for the District of Columbia affirmed. The D.C. Circuit read the Military Commissions Act of 2006 (MCA) to strip the jurisdiction of all federal courts from hearing habeas applications from detainees who had been deemed enemy combatants, and so the court refused to hear the case. Appealing to the Supreme Court, Boumediene argued that the system to review detainees' status established by the Detainee Treatment Act of 2005 (DTA) was not an adequate substitute for habeas corpus. Because the suspension clause of Article 1, Section 9 states that the "Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it," Boumediene urged the justices to rule that the MCA was unconstitutional. JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT. In deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status . . . as enemy combatants, or their physical location . . . at Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation's borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause. . . . The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system. . . . . . . [T]he Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention. Guantanamo Bay is not formally part of the United States. And under the terms of the lease between the United States and Cuba, Cuba retains "ultimate sovereignty" over the territory while the United States exercises "complete jurisdiction and control." Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base. . . . We . . . do not question the Government's position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. As commentators have noted, "'[s]overeignty' is a term used in many senses and is much abused." . . . Indeed, it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another. . . . [W]e take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. . . . . . . [Former] decisions undermine the Government's argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends. . . . In a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State. The Court held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. . . . The Government's formal sovereignty-based test raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. The United States has maintained complete and uninterrupted control of the bay for over 100 years. . . . Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. . . . . . . It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. This Court may not impose a de facto suspension by abstaining from these controversies. The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention. In light of this holding the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeal, provides an adequate substitute. . . . To the extent any doubt remains about Congress' intent, the legislative history confirms what the plain text strongly suggests: In passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only. It intended to create a more limited procedure. It is against this background that we must interpret the DTA and assess its adequacy as a substitute for habeas corpus. . . . We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law. And the habeas court must have the power to order the conditional release of an individual unlawfully detained--though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. These are the easily identified attributes of any constitutionally adequate habeas corpus proceeding. But, depending on the circumstances, more may be required. . . . To determine the necessary scope of habeas corpus review, therefore, we must assess the CSRT process, the mechanism through which petitioners' designation as enemy combatants became final. . . . Petitioners identify what they see as myriad deficiencies in the CSRTs. The most relevant for our purposes are the constraints upon the detainee's ability to rebut the factual basis for the Government's assertion that he is an enemy combatant. As already noted, at the CSRT stage the detainee has limited means to find or present evidence to challenge the Government's case against him. He does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention. The detainee can confront witnesses that testify during the CSRT proceedings. But given that there are in effect no limits on the admission of hearsay evidence--the only requirement is that the tribunal deem the evidence "relevant and helpful,"--the detainee's opportunity to question witnesses is likely to be more theoretical than real. The Government defends the CSRT process, arguing that it was designed to conform to the procedures suggested by the plurality in Hamdi [v. Rumsfeld, 2004]. Setting aside the fact that the relevant language in Hamdi did not garner a majority of the Court, it does not control the matter at hand. None of the parties in Hamdi argued there had been a suspension of the writ. . . . Accordingly, the plurality concentrated on whether the Executive had the authority to detain and, if so, what rights the detainee had under the Due Process Clause. . . . [T]he Court had no occasion to define the necessary scope of habeas review, for Suspension Clause purposes, in the context of enemy combatant detentions. . . . . . . [W]e agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact. . . . And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. . . . We now consider whether the DTA allows the Court of Appeals to conduct a proceeding meeting these standards. . . . The absence of a release remedy and specific language allowing AUMF [Authorization for Use of Military Force] challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. The DTA enables petitioners to request "review" of their CSRT determination in the Court of Appeals, but the "Scope of Review" provision confines the Court of Appeals' role to reviewing whether the CSRT followed the "standards and procedures" issued by the Department of Defense and assessing whether those "standards and procedures" are lawful. Among these standards is "the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence . . . allowing a rebuttable presumption in favor of the Government's evidence." Assuming the DTA can be construed to allow the Court of Appeals to review or correct the CSRT's factual determinations, as opposed to merely certifying that the tribunal applied the correct standard of proof, we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings. On its face the statute allows the Court of Appeals to consider no evidence outside the CSRT record. In the parallel litigation, however, the Court of Appeals determined that the DTA allows it to order the production of all "'reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,'" regardless of whether this evidence was put before the CSRT. The Government, with support from five members of the Court of Appeals, disagrees with this interpretation. For present purposes, however, we can assume that the Court of Appeals was correct that the DTA allows introduction and consideration of relevant exculpatory evidence that was "reasonably available" to the Government at the time of the CSRT but not made part of the record. Even so, the DTA review proceeding falls short of being a constitutionally adequate substitute, for the detainee still would have no opportunity to present evidence discovered after the CSRT proceedings concluded. Under the DTA the Court of Appeals has the power to review CSRT determinations by assessing the legality of standards and procedures. This implies the power to inquire into what happened at the CSRT hearing and, perhaps, to remedy certain deficiencies in that proceeding. But should the Court of Appeals determine that the CSRT followed appropriate and lawful standards and procedures, it will have reached the limits of its jurisdiction. There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee's argument that he is not an enemy combatant and there is no cause to detain him. This is not a remote hypothetical. One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla's contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner's counsel, however, now represents the witness is available to be heard. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals' generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner. By foreclosing consideration of evidence not presented or reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the scope of collateral review to a record that may not be accurate or complete. In other contexts . . . similar limitations on the scope of habeas review may be appropriate. In this context, however, where the underlying detention proceedings lack the necessary adversarial character, the detainee cannot be held responsible for all deficiencies in the record. . . . . . . The Government has not established that the detainees' access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ. In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement. The real risks, the real threats, of terrorist attacks are constant and not likely soon to abate. The ways to disrupt our life and laws are so many and unforeseen that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law's writs, including habeas corpus. . . . The cases before us . . . do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete DTA review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing. Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7. Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains that detainee's habeas corpus petition. . . . Although we hold that the DTA is not an adequate and effective substitute for habeas corpus, it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent. . . . [T]he Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ. . . . In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. . . . Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. . . . Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. . . . We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion. It is so ordered. JUSTICE SOUTER, WITH WHOM JUSTICE GINSBURG AND JUSTICE BREYER JOIN... CONCURRING. I join the Court's opinion in its entirety and add this afterword only to emphasize . . . things one might overlook after reading the dissents. . . . It is . . . the very lapse of four years from the time Rasul [v. Bush, 2004] put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court's exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. CHIEF JUSTICE ROBERTS, WITH WHOM JUSTICE SCALIA, JUSTICE THOMAS, AND JUSTICE ALITO JOIN, DISSENTING. Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants. The majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus--its opinion begins by deciding that question. I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay. . . . The important point for me, however, is that the Court should have resolved these cases on other grounds. Habeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention. The critical threshold question in these cases, prior to any inquiry about the writ's scope, is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called “habeas†or something else. Congress entrusted that threshold question in the first instance to the Court of Appeals for the District of Columbia Circuit, as the Constitution surely allows Congress to do. But before the D.C. Circuit has addressed the issue, the Court cashiers the statute, and without answering this critical threshold question itself. . . . The majority instead compares the undefined DTA process to an equally undefined habeas right--one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided. It is also fruitless. How the detainees' claims will be decided now that the DTA is gone is anybody's guess. . . . All that today's opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary. I believe the system the political branches constructed adequately protects any constitutional rights aliens captured abroad and detained as enemy combatants may enjoy. I therefore would dismiss these cases on that ground. With all respect for the contrary views of the majority, I must dissent. . . . The political branches created a two-part, collateral review procedure for testing the legality of the prisoners' detention: It begins with a hearing before a Combatant Status Review Tribunal (CSRT) followed by review in the D.C. Circuit. As part of that review, Congress authorized the D.C. Circuit to decide whether the CSRT proceedings are consistent with "the Constitution and laws of the United States." No petitioner, however, has invoked the D.C. Circuit review the statute specifies. As a consequence, that court has had no occasion to decide whether the CSRT hearings, followed by review in the Court of Appeals, vindicate whatever constitutional and statutory rights petitioners may possess. Remarkably, this Court does not require petitioners to exhaust their remedies under the statute; it does not wait to see whether those remedies will prove sufficient to protect petitioners' rights. Instead, it not only denies the D.C. Circuit the opportunity to assess the statute's remedies, it refuses to do so itself: the majority expressly declines to decide whether the CSRT procedures, coupled with Article III review, satisfy due process. It is grossly premature to pronounce on the detainees' right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. The plurality in Hamdi explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to "notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision maker." The plurality specifically stated that constitutionally adequate collateral process could be provided "by an appropriately authorized and properly constituted military tribunal," given the "uncommon potential to burden the Executive at a time of ongoing military conflict." This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due. If the CSRT procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, there is no need to reach the Suspension Clause question. Detainees will have received all the process the Constitution could possibly require, whether that process is called "habeas" or something else. . . . In the absence of any assessment of the DTA's remedies, the question whether detainees are entitled to habeas is an entirely speculative one. Our precedents have long counseled us to avoid deciding such hypothetical questions of constitutional law. This is a "fundamental rule of judicial restraint." . . . [T]he system the Court has launched (and directs lower courts to elaborate) promises to take longer. The Court assures us that before bringing their habeas petitions, detainees must usually complete the CSRT process. Then they may seek review in federal district court. Either success or failure there will surely result in an appeal to the D.C. Circuit--exactly where judicial review starts under Congress's system. The effect of the Court's decision is to add additional layers of quite possibly redundant review. And because nobody knows how these new layers of "habeas" review will operate, or what new procedures they will require, their contours will undoubtedly be subject to fresh bouts of litigation. If the majority were truly concerned about delay, it would have required petitioners to use the DTA process that has been available to them for 2 1/2 years, with its Article III review in the D.C. Circuit. That system might well have provided petitioners all the relief to which they are entitled long before the Court's newly installed habeas review could hope to do so. . . . The majority's overreaching is particularly egregious given the weakness of its objections to the DTA. Simply put, the Court's opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate substitute†for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system. . . . . . . [T]he Court makes no effort to elaborate how exactly the remedy it prescribes will differ from the procedural protections detainees enjoy under the DTA. The Court objects to the detainees' limited access to witnesses and classified material, but proposes no alternatives of its own. Indeed, it simply ignores the many difficult questions its holding presents. . . . The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants: The right to hear the bases of the charges against them, including a summary of any classified evidence. The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. Some 38 detainees have been released as a result of this process. The right, before the CSRT, to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate. The right to the aid of a personal representative in arranging and presenting their cases before a CSRT. Before the D.C. Circuit, the right to employ counsel, challenge the factual record, contest the lower tribunal's legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief. In sum, the DTA satisfies the majority's own criteria for assessing adequacy. This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees--whether citizens or aliens--in our national history. So who has won? Not the detainees. The Court's analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D.C. Circuit--where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine--through democratic means--how best†to balance the security of the American people with the detainees' liberty interests has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges. I respectfully dissent. JUSTICE SCALIA, WITH WHOM THE CHIEF JUSTICE ROBERTS, JUSTICE THOMAS, AND JUSTICE ALITO JOIN, DISSENTING. Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. . . . My problem with today's opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires. . . . America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D.C., and 40 in Pennsylvania. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. . . . The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent . . . when he established the prison at Guantanamo Bay for enemy aliens. . . . Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves. . . . . . . A mere two Terms ago in Hamdan v. Rumsfeld (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners' claims, four Members of today's five-Justice majority joined an opinion saying the following: “Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary. "Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine--through democratic means--how best to do so. The Constitution places its faith in those democratic means." Turns out they were just kidding. For in response, Congress, at the President's request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive-- both political branches--have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, "the Military Commissions Act and the Detainee Treatment Act . . . represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States." But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is "apparent." "The Government," it declares, "presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims." What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today's opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails. . . . The category of prisoner comparable to these detainees are . . . the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court--and that despite the fact that they were present on U.S. soil. . . . There is simply no support for the Court's assertion that constitutional rights extend to aliens held outside U.S. sovereign territory. . . . What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, "it would be possible for the political branches to govern without legal constraint" in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis. "The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them." Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners' claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme. But so long as there are some places to which habeas does not run--so long as the Court's new "functional" test will not be satisfied in every case--then there will be circumstances in which "it would be possible for the political branches to govern without legal constraint." Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court's ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The "functional" test . . . is so inherently subjective that it clears a wide path for the Court to traverse in the years to come. . . . [I]t is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad. . . . . . . . [A]ll available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction. The Court finds it significant that there is no recorded case denying jurisdiction to such prisoners either. But a case standing for the remarkable proposition that the writ could issue to a foreign land would surely have been reported, whereas a case denying such a writ for lack of jurisdiction would likely not. At a minimum, the absence of a reported case either way leaves unrefuted the voluminous commentary stating that habeas was confined to the dominions of the Crown. . . . Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents. . . . It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent.

Murdock v. City of Memphis (1875)

Vote: 5 (Miller, Davis, Field, Strong, Hunt) 3 (Bradley, Clifford, Swayne) OPINION OF THE COURT: Miller Dissenting opinions: Bradley, Clifford Not participating: Waite FACTS In Cohens v. Virginia (1821) the Court considered the plight of brothers P. J. and M. J. Cohen, who were tried and convicted in Virginia for selling tickets for the District of Columbia lottery--one that was authorized by an act of Congress but not by Virginia law. When the Cohens alleged that the federal law superseded the Virginia statute, the Supreme Court was compelled to review a Virginia court's interpretation of a congressional act. The state's attorneys argued that the Court could not review state court decisions because the states were sovereign entities. In particular, they turned to the Eleventh Amendment. That amendment overturned a 1793 Supreme Court decision, Chisholm v. Georgia, which had upheld the right of citizens of one state to bring suit, in the Supreme Court, against another state. The amendment says: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The attorneys argued that these words prohibited the Supreme Court from hearing appeals by citizens against their own states, regardless of what Section 25 of the Judiciary Act said and even if the appeal involved a congressional act--also the case in Murdock. But, writing for a unanimous Court, Chief Justice Marshall disagreed. In his opinion, Marshall reinforced the constitutionality of Section 25, held that the Eleventh Amendment did not preclude the Supreme Court from exercising jurisdiction over a federal question raised on appeal by citizens against their own states (in accord with Section 25), and ended the immediate dispute with Virginia. But the decision did not fully resolve questions concerning the role of federal courts vis-à-vis their state counterparts; nor did they end state challenges to the Court's authority. One centers directly on the Supreme Court and specifically its jurisdiction to hear appeals from state courts. Even after Congress in 1916 and 1925 gave the Court discretion over whether or not to hear many sorts of disputes, it maintained provisions obligating the justices to review state court decisions invalidating a federal law or validating a state law challenged as inconsistent with federal law. Finally, in 1988, under pressure from the justices themselves, Congress eliminated these mandatory appeals, giving the Court nearly complete discretion over all state court decisions involving federal law. And, it is worth noting, the Court is quite selective about the kinds of state court decisions it will hear. Beginning with the case below, Murdock v. City of Memphis (1875), the Court has said that it will not review decisions interpreting state statutes and constitutional provisions unless the state court's interpretation implicates issues of federal law; in other words, the justices believe that state courts should be the final arbiters of the meaning of their own laws and constitutions. This traditional view is called the "adequate and independent state grounds" test: the Court will refrain from reviewing state court interpretations of state constitutions and law unless those decisions involve issues of federal law. The specific question in Murdock pertained to a section of an 1867 law that was a "reproduction, with some changes," of Section 25 of the Judiciary Act of 1789. Whereas the 1789 act gave the Court appellate jurisdiction over federal questions coming from state courts excluding questions of state law, the 1867 act omitted that exclusion. Hence, Murdock confronted the Court with the question of whether the 1867 act gave it jurisdiction over matters of state and not just federal law. MR. JUSTICE MILLER ... (NOW, JANUARY 11TH, 1875) DELIVERED THE OPINION OF THE COURT. In the year 1867 Congress passed an act, approved February 5th, entitled an act to amend "An act to establish the judicial courts of the United States, approved September the 24th, 1789." This act consisted of two sections, the first of which conferred upon the Federal courts and upon the judges of those courts additional power in regard to writs of habeas corpus, and regulated appeals and other proceedings in that class of cases. The second section was a reproduction, with some changes, of the twenty-fifth section of the act of 1789, to which, by its title, the act of 1867 was an amendment, and it related to the appellate jurisdiction of this court over judgments and decrees of State courts. The difference between the twenty-fifth section of the act of 1789 and the second section of the act of 1867 did not attract much attention, if any, for some time after the passage of the latter. Occasional allusions to its effect upon the principles long established by this court under the former began at length to make their appearance in the briefs and oral arguments of counsel, but were not found to be so important as to require any decision of this court on the subject. But in several cases argued within the last two or three years the proposition has been urged upon the court that the latter act worked a total repeal of the twenty-fifth section of the former, and introduced a rule for the action of this court in the class of cases to which they both referred, of such extended operation and so variant from that which had governed it heretofore that the subject received the serious consideration of the court. It will at once be perceived that the question raised was entitled to the most careful examination and to all the wisdom and learning, and the exercise of the best judgment which the court could bring to bear upon its solution, when it is fairly stated. The proposition is that by a fair construction of the act of 1867 this court must, when it obtains jurisdiction of a case decided in a State court, by reason of one of the questions stated in the act, proceed to decide every other question which the case presents which may be found necessary to a final judgment on the whole merits. To this has been added the further suggestion that in determining whether the question on which the jurisdiction of this court depends, has been raised in any given case, we are not limited to the record which comes to us from the State court--the record proper of the case as understood at common law--but we may resort to any such method of ascertaining what was really done in the State court as this court may think proper, even to ex parte affidavits. When the case standing at the head of this opinion came on to be argued, it was insisted by counsel for defendants in error that none of the questions were involved in the case necessary to give jurisdiction to this court, either under the act of 1789 or of 1867, and that if they were, there were other questions exclusively of State court cognizance which were sufficient to dispose of the case, and that, therefore, the writ of error should be dismissed. Counsel for plaintiffs in error, on the other hand, argued that not only was there a question in the case decided against them which authorized the writ of error from this court under either act, but that this court having for this reason obtained jurisdiction of the case, should re-examine all the questions found in the record, though some of them might be questions of general common law or equity, or raised by State statutes, unaffected by any principle of Federal law, constitutional or otherwise. When, after argument, the court came to consider the case in consultation, it was found that it could not be disposed of without ignoring or deciding some of these propositions, and it became apparent that the time had arrived when the court must decide upon the effect of the act of 1867 on the jurisdiction of this court as it had been supposed to be established by the twenty-fifth section of the act of 1789.... With all the aid we have had from counsel, and with the fullest consideration we have been able to give the subject, we are free to confess that its difficulties are many and embarrassing, and in the results we are about to announce we have not been able to arrive at entire harmony of opinion. The questions propounded by the court for discussion by counsel were these: 1. Does the second section of the act of February 5th, 1867, repeal all or any part of the twenty-fifth section of the act of 1789, commonly called the Judiciary Act? 2. Is it the true intent and meaning of the act of 1867, above referred to, that when this court has jurisdiction of a case, by reason of any of the questions therein mentioned, it shall proceed to decide all the questions presented by the record which are necessary to a final judgment or decree? 3. If this question be answered affirmatively, does not Constitution of the United States authorize Congress to confer such a jurisdiction on this court? 1. The act of 1867 has no repealing clause nor any express words of repeal. If there is any repeal, therefore, it is one of implication. The differences between the two sections are of two classes, namely, the change or substitution of a few words or phrases in the latter for those used in the former, with very slight, if any, change of meaning, and the omission in the latter of two important provisions found in the former. It will be perceived by this statement that there is no repeal by positive new enactments inconsistent in terms with the old law. It is the words that are wholly omitted in the new statute which constitute the important feature in the questions thus propounded for discussion. A careful comparison of these two sections can leave no doubt that it was the intention of Congress, by the latter statute, to revise the entire matter to which they both had reference, to make such changes in the law as it stood as they thought best, and to substitute their will in that regard entirely for the old law upon the subject. We are of opinion that it was their intention to make a new law so far as the present law differed from the former, and that the new law embracing all that was intended to be preserved of the old, omitting what was not so intended, became complete in itself and repealed all other law on the subject embraced within it. The authorities on this subject are clear and uniform. The result of this reasoning is that the twenty-fifth section of the act of 1789 is technically repealed, and that the second section of the act of 1867 has taken its place. What of the statute of 1789 is embraced in that of 1867 is of course the law now and has been ever since it was first made so. What is changed or modified is the law as thus changed or modified. That which is omitted ceased to have any effect from the day that the substituted statute was approved.... ... 2. The affirmative of the second question propounded above is founded upon the effect of the omission or repeal of the last sentence of the twenty-fifth section of the act of 1789. That clause in express terms limited the power of the Supreme Court in reversing the judgment of a State court, to errors apparent on the face of the record and which respected questions, that for the sake of brevity, though not with strict verbal accuracy, we shall call Federal questions, namely, those in regard to the validity or construction of the Constitution, treaties, statutes, commissions, or authority of the Federal government. The argument may be thus stated: 1. That the Constitution declares that the judicial power of the United States shall extend to cases of a character which includes the questions described in the section, and that by the word case, is to be understood all of the case in which such a question arises. 2. That by the fair construction of the act of 1789 in regard to removing those cases to this court, the power and the duty of re-examining the whole case would have been devolved on the court, but for the restriction of the clause omitted in the act of 1867; and that the same language is used in the latter act regulating the removal, but omitting the restrictive clause. And, 3. That by re-enacting the statute in the same terms as to the removal of cases from the State courts, without the restrictive clause, Congress is to be understood as conferring the power which the clause prohibited. We will consider the last proposition first. What were the precise motives which induced the omission of this clause it is impossible to ascertain with any degree of satisfaction. In a legislative body like Congress, it is reasonable to suppose that among those who considered this matter at all, there were varying reasons for consenting to the change. No doubt there were those who, believing that the Constitution gave no right to the Federal judiciary to go beyond the line marked by the omitted clause, thought its presence or absence immaterial; and in a revision of the statute it was wise to leave it out, because its presence implied that such a power was within the competency of Congress to bestow. There were also, no doubt, those who believed that the section standing without that clause did not confer the power which it prohibited, and that it was, therefore, better omitted. It may also have been within the thought of a few that all that is now claimed would follow the repeal of the clause. But if Congress, or the framers of the bill, had a clear purpose to enact affirmatively that the court should consider the class of errors which that clause forbid, nothing hindered that they should say so in positive terms; and in reversing the policy of the government from its foundation in one of the most important subjects on which that body could act, it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention. There is, therefore, no sufficient reason for holding that Congress, by repealing or omitting this restrictive clause, intended to enact affirmatively the thing which that clause had prohibited.... ... [W]e have not yet considered the most important part of the statute, namely, that which declares that it is only upon the existence of certain questions in the case that this court can entertain jurisdiction at all. Nor is the mere existence of such a question in the case sufficient to give jurisdiction--the question must have been decided in the State court. Nor is it sufficient that such a question was raised and was decided. It must have been decided in a certain way, that is, against the right set up under the Constitution, laws, treaties, or authority of the United States. The Federal question may have been erroneously decided. It may be quite apparent to this court that a wrong construction has been given to the Federal law, but if the right claimed under it by plaintiff in error has been conceded to him, this court cannot entertain jurisdiction of the case, so very careful is the statute, both of 1789 and of 1867, to narrow, to limit, and define the jurisdiction which this court exercises over the judgments of the State courts. It is consistent with this extreme caution to suppose that Congress intended, when those cases came here, that this court should not only examine those questions, but all others found in the record?--questions of common law, of State statutes, of controverted facts, and conflicting evidence. Or is it the more reasonable inference that Congress intended that the case should be brought here that those questions might be decided and finally decided by the court established by the Constitution of the Union, and the court which has always been supposed to be not only the most appropriate but the only proper tribunal for their final decision? No such reason nor any necessity exists for the decision by this court of other questions in those cases. The jurisdiction has been exercised for nearly a century without serious inconvenience to the due administration of justice. The State courts are the appropriate tribunals, as this court has repeatedly held, for the decision of questions arising under their local law, whether statutory or otherwise. And it is not lightly to be presumed that Congress acted upon a principle which implies a distrust of their integrity or of their ability to construe those laws correctly. Let us look for a moment into the effect of the proposition contended for upon the cases as they come up for consideration in the conference-room. If it is found that no such question is raised or decided in the court below, then all will concede that it must be dismissed for want of jurisdiction. But if it is found that the Federal question was raised and was decided against the plaintiff in error, then the first duty of the court obviously is to determine whether it was correctly decided by the State court. Let us suppose that we find that the court below was right in its decision on that question. What, then, are we to do? Was it the intention of Congress to say that while you can only bring the case here on account of this question, yet when it is here, though it may turn out that the plaintiff in error was wrong on that question, and the judgment of the court below was right, though he has wrongfully dragged the defendant into this court by the allegation of an error which did not exist, and without which the case could not rightfully be here, he can still insist on an inquiry into all the other matters which were litigated in the case? This is neither reasonable nor just. In such case both the nature of the jurisdiction conferred and the nature and fitness of things demand that, no error being found in the matter which authorized the re-examination, the judgment of the State court should be affirmed, and the case remitted to that court for its further enforcement. The whole argument we are combating, however, goes upon the assumption that when it is found that the record shows that one of the questions mentioned has been decided against the claim of the plaintiff in error, this court has jurisdiction, and that jurisdiction extends to the whole case. If it extends to the whole case then the court must re-examine the whole case, and if it re-examines it must decide the whole case. It is difficult to escape the logic of the argument if the first premise be conceded. But it is here the error lies. We are of opinion that upon a fair construction of the whole language of the section the jurisdiction conferred is limited to the decision of the questions mentioned in the statute, and, as a necessary consequence of this, to the exercise of such powers as may be necessary to cause the judgment in that decision to be respected. We will now advert to one or two considerations apart from the mere language of the statute, which seem to us to give additional force to this conclusion. It has been many times decided by this court, on motions to dismiss this class of cases for want of jurisdiction, that if it appears from the record that the plaintiff in error raised and presented to the court by pleadings, prayer for instruction, or other appropriate method, one of the questions specified in the statute, and the court ruled against him, the jurisdiction of this court attached, and we must hear the case on its merits. Heretofore these merits have been held to be to determine whether the propositions of law involved in the specific Federal question were rightly decided, and if not, did the case of plaintiff in error, on the pleadings and evidence, come within the principle ruled by this court. This has always been held to be the exercise of the jurisdiction and re-examination of the case provided by the statute. But if when we once get jurisdiction, everything in the case is open to re-examination, it follows that every case tried in any State court, from that of a justice of the peace to the highest court of the State, may be brought to this court for final decision on all the points involved in it.... It is impossible to believe that Congress intended this result, and equally impossible that they did not see that it would follow if they intended to open the cases that are brought here under this section to re-examination on all the points involved in them and necessary to a final judgment on the merits. The twenty-fifth section of the act of 1789 has been the subject of innumerable decisions, some of which are to be found in almost every volume of the reports from that year down to the present. These form a system of appellate jurisprudence relating to the exercise of the appellate power of this court over the courts of the States. That system has been based upon the fundamental principle that this jurisdiction was limited to the correction of errors relating solely to Federal law. And though it may be argued with some plausibility that the reason of this is to be found in the restrictive clause of the act of 1789, which is omitted in the act of 1867, yet an examination of the cases will show that it rested quite as much on the conviction of this court that without that clause and on general principles the jurisdiction extended no further. It requires a very bold reach of thought, and a readiness to impute to Congress a radical and hazardous change of a policy vital in its essential nature to the independence of the State courts, to believe that that body contemplated, or intended, what is claimed, by the mere omission of a clause in the substituted statute, which may well be held to have been superfluous, or nearly so, in the old one.... It is not difficult to discover what the purpose of Congress in the passage of this law was. In a vast number of cases the rights of the people of the Union, as they are administered in the courts of the States, must depend upon the construction which those courts gave to the Constitution, treaties, and laws of the United States. The highest courts of the States were sufficiently numerous, even in 1789, to cause it to be feared that, with the purest motives, this construction given in different courts would be various and conflicting. It was desirable, however, that whatever conflict of opinion might exist in those courts on other subjects, the rights which depended on the Federal laws should be the same everywhere, and that their construction should be uniform. This could only be done by conferring upon the Supreme Court of the United States--the appellate tribunal established by the Constitution--the right to decide these questions finally and in a manner which would be conclusive on all other courts, State or National. This was the first purpose of the statute, and it does not require that, in a case involving a variety of questions, any other should be decided than those described in the act. Secondly. It was no doubt the purpose of Congress to secure to every litigant whose rights depended on any question of Federal law that that question should be decided for him by the highest Federal tribunal if he desired it, when the decisions of the State courts were against him on that question. That rights of this character, guaranteed to him by the Constitution and laws of the Union, should not be left to the exclusive and final control of the State courts. There may be some plausibility in the argument that these rights cannot be protected in all cases unless the Supreme Court has final control of the whole case. But the experience of eighty-five years of the administration of the law under the opposite theory would seem to be a satisfactory answer to the argument. It is not to be presumed that the State courts, where the rule is clearly laid down to them on the Federal question, and its influence on the case fully seen, will disregard or overlook it, and this is all that the rights of the party claiming under it require. Besides, by the very terms of this statute, when the Supreme Court is of opinion that the question of Federal law is of such relative importance to the whole case that it should control the final judgment, that court is authorized to render such judgment and enforce it by its own process. It cannot, therefore, be maintained that it is in any case necessary for the security of the rights claimed under the Constitution, laws, or treaties of the United States that the Supreme Court should examine and decide other questions not of a Federal character. And we are of opinion that the act of 1867 does not confer such a jurisdiction. This renders unnecessary a decision of the question whether, if Congress had conferred such authority, the act would have been constitutional. It will be time enough for this court to inquire into the existence of such a power when that body has attempted to exercise it in language which makes such an intention so clear as to require it.... We have already laid down the rule that we are not authorized to examine these other questions for the purpose of deciding whether the State court ruled correctly on them or not. We are of opinion that on these subjects not embraced in the class of questions stated in the statute, we must receive the decision of the State courts as conclusive. But when we find that the State court has decided the Federal question erroneously, then to prevent a useless and profitless reversal, which can do the plaintiff in error no good, and can only embarrass and delay the defendant, we must so far look into the remainder of the record as to see whether the decision of the Federal question alone is sufficient to dispose of the case, or to require its reversal; or on the other hand, whether there exist other matters in the record actually decided by the State court which are sufficient to maintain the judgment of that court, notwithstanding the error in deciding the Federal question. In the latter case the court would not be justified in reversing the judgment of the State court. But this examination into the points in the record other than the Federal question is not for the purpose of determining whether they were correctly or erroneously decided, but to ascertain if any such have been decided, and their sufficiency to maintain the final judgment, as decided by the State court. Beyond this we are not at liberty to go, and we can only go this far to prevent the injustice of reversing a judgment which must in the end be reaffirmed, even in this court, if brought here again from the State court after it has corrected its error in the matter of Federal law. Finally, we hold the following propositions on this subject as flowing from the statute as it now stands: 1. That it is essential to the jurisdiction of this court over the judgment of a State court, that it shall appear that one of the questions mentioned in the act must have been raised, and presented to the State court. 2. That it must have been decided by the State court, or that its decision was necessary to the judgment or decree, rendered in the case. 3. That the decision must have been against the right claimed or asserted by plaintiff in error under the Constitution, treaties, laws, or authority of the United States. 4. These things appearing, this court has jurisdiction and must examine the judgment so far as to enable it to decide whether this claim of right was correctly adjudicated by the State court. 5. If it finds that it was rightly decided, the judgment must be affirmed. 6. If it was erroneously decided against plaintiff in error, then this court must further inquire, whether there is any other matter or issue adjudged by the State court, which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised by the Federal question. If this is found to be the case, the judgment must be affirmed without inquiring into the soundness of the decision on such other matter of issue. 7. But if it be found that the issue raised by the question of Federal law is of such controlling character that its correct decision is necessary to any final judgment in the case, or that there has been no decision by the State court of any other matter or issue which is sufficient to maintain the judgment of that court without regard to the Federal question, then this court will reverse the judgment of the State court, and will either render such judgment here as the State court should have rendered, or remand the case to that court, as the circumstances of the case may require. Applying the principles here laid down to the case now before the court, we are of opinion that this court has jurisdiction, and that the judgment of the Supreme Court of Tennessee must be affirmed. The suit was a bill in chancery brought by Murdock and others against the city of Memphis to have a decree establishing their right in certain real estate near that city. The United States having determined to build a navy yard at Memphis, about the year 1844, or previous thereto, the city of Memphis, on the 14th day of September of that year, conveyed to the United States the land in controversy by an ordinary deed of general warranty, expressing on its face the consideration of $20,000 paid, and designating no purpose for which the land was conveyed. After retaining possession of the land for about ten years without building a navy yard, the United States abandoned that purpose, and by an act approved August 5th, 1854, ceded the property to the city of Memphis by its corporate name for the use and benefit of said city. The plaintiffs in error, by their bill, allege that the title was originally conveyed to the city of Memphis, in trust, for certain purposes, including that of having a navy yard built on it by the United States; that when the title reverted to the city by reason of the abandonment of the place as a navy yard by the United States, and the act of Congress aforesaid, the city received the title in trust for the original grantors, who are the plaintiffs, or who are represented by plaintiffs. A demurrer to the bill was filed. Also an answer denying the trust and pleading the statute of limitations. On the hearing the bill was dismissed, and this decree was affirmed by the Supreme Court of the State. The complainants, in their bill, and throughout the case, insisted that the effect of the act of 1854 was to vest the title in the mayor or aldermen of the city in trust for them. It may be very true that it is not easy to see anything in the deed by which the United States received the title from the city, or the act by which they ceded it back, which raises such a trust, but the complainants claimed a right under this act of the United States, which was decided against them by the Supreme Court of Tennessee, and this claim gives jurisdiction of that question to this court. But we need not consume many words to prove that neither by the deed of the city to the United States, which is an ordinary deed of bargain and sale for a valuable consideration, nor from anything found in the act of 1854, is there any such trust to be inferred. The act, so far from recognizing or implying any such trust, cedes the property to the mayor and aldermen for the use of the city. We are, therefore, of opinion that this, the only Federal question in the case, was rightly decided by the Supreme Court of Tennessee. But conceding this to be true, the plaintiffs in error have argued that the court having jurisdiction of the case must now examine it upon all the questions which affect its merits; and they insist that the conveyance by which the city of Memphis received the title previous to the deed from the city to government, and the circumstances attending the making of the former deed are such, that when the title reverted to the city, a trust was raised for the benefit of plaintiffs. After what has been said in the previous part of this opinion, we need discuss this matter no further. The claim of right here set up is one to be determined by the general principles of equity jurisprudence, and is unaffected by anything found in the Constitution, laws, or treaties of the United States. Whether decided well or otherwise by the State court, we have no authority to inquire. According to the principles we have laid down as applicable to this class of cases, the judgment of the Supreme Court of Tennessee must be Affirmed. The case having been reargued, as well as argued originally, before the appointment of THE CHIEF JUSTICE, he took no part in the judgment. MR. JUSTICE CLIFFORD, WITH WHOM CONCURRED MR. JUSTICE SWAYNE, DISSENTING: I dissent from so much of the opinion of the court as denies the jurisdiction of this court to determine the whole case, where it appears that the record presents a Federal question and that the Federal question was erroneously decided to the prejudice of the plaintiff in error; as in that state of the record it is, in my judgment, the duty of this court, under the recent act of Congress, to decide the whole merits of the controversy, and to affirm or reverse the judgment of the State court. Tested by the new law it would seem that it must be so, as this court cannot in that state of the record dismiss the writ of error, nor can the court reverse the judgment without deciding every question which the record presents. Where the Federal question is rightly decided the judgment of the State court may be affirmed, upon the ground that the jurisdiction does not attach to the other questions involved in the merits of the controversy; but where the Federal question is erroneously decided the whole merits must be decided by this court, else the new law, which it is admitted repeals the twenty-fifth section of the Judiciary Act, is without meaning, operation, or effect, except to repeal the prior law. Sufficient proof of the fact that the new law was not intended to be without meaning and effective operation is found in the fact that the provision in the old law which restricts the right of the plaintiff in error or appellant to assign for error any matter except such as respects one of the Federal questions enumerated in the twenty-fifth section of the Judiciary Act, is wholly omitted in the new law. MR. JUSTICE BRADLEY, DISSENTING: ... I cannot concur in the conclusion that we can only decide the Federal question raised by the record. If we have jurisdiction at all, in my judgment we have jurisdiction of the case, and not merely of a question in it. The act of 1867, and the twenty-fifth section of the Judiciary Act both provide that a final judgment or decree in any suit in the highest court of a State, where is drawn in question certain things relating to the Constitution or laws of the United States, or to rights or immunities claimed under the United States, and the decision is adverse to such Constitution, laws, or rights, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error. Had the original act stopped here there could have been no difficulty. This act derives its authority and is intended to carry into effect, at least in part, that clause of the Constitution which declares that the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made under their authority--not to all questions, but to all cases. This word "cases," in the residue of the section, has frequently been held to mean suits, actions, embracing the whole cases, not mere questions in them; and that is undoubtedly the true construction. The Constitution, therefore, would have authorized a revision by the judiciary of the United States of all cases decided in State courts in which questions of United States law of Federal rights are necessarily involved. Congress in carrying out that clause could have so ordained. And the law referred to, had it stopped at the point to which I have quoted it above, would clearly have been understood as so ordaining. But the twenty-fifth section of the Judiciary Act went on to declare that in such cases no other error should be assigned or regarded as a ground of reversal than such as immediately respected the question referred to as the ground of jurisdiction. It having been early decided that Congress had power to regulate the exercise of the appellate jurisdiction of the Supreme Court, the court has always considered itself bound by this restriction, and as authorized to reverse judgments of State courts only for errors in deciding the Federal questions involved therein. Now, Congress, in the act of 1867, when revising the twenty-fifth section of the Judiciary Act, whilst following the general frame and modes of expression of that section, omitted the clause above referred to, which restricted the court to a consideration of the Federal questions. This omission cannot be regarded as having no meaning. The clause by its presence in the original act meant something, and effected something. It had the effect of restricting the consideration of the court to a certain class of questions as a ground of reversal, which restriction would not have existed without it. The omission of the clause, according to a well-settled rule of construction, must necessarily have the effect of removing the restriction which it effected in the old law. In my judgment, therefore, if the court had jurisdiction of the case, it was bound to consider not only the Federal question raised by the record, but the whole case. As the court, however, has decided otherwise, it is not proper that I should express any opinion on the merits....

Cohens v. Virginia (1821)

Vote: 6 (Duvall, Johnson, Livingston, Marshall, Story, Todd) 0 OPINION OF THE COURT: Marshall Not participating: Washington FACTS Brothers P. J. and M. J. Cohen were tried and convicted in Virginia for selling tickets for the District of Columbia lottery, which was authorized by an act of Congress but not by Virginia law. When the brothers alleged that the federal law superseded the Virginia statute, the Supreme Court was again compelled to review a Virginia court's interpretation of a congressional act. As in Marbury v. Madison (1803), the Court was faced with a difficult political situation. Virginia had refused to comply with the Court's earlier decision in Martin v. Hunter's Lessee (1816). The state's attorneys, including Philip P. Barbour, who later would serve on the U.S. Supreme Court, continued to argue that the Court could not review state court decisions because the states were sovereign entities. MR. CHIEF JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. The first question to be considered is, whether the jurisdiction of this Court is excluded by the character of the parties, one of them being a State, and the other a citizen of that State? ... The counsel for the defendant ... have laid down the general proposition, that a sovereign independent State is not suable, except by its own consent. This general proposition will not be controverted. But its consent is not requisite in each particular case. It may be given in a general law. And if a State has surrendered any portion of its sovereignty, the question whether a liability to suit be a part of this portion, depends on the instrument by which the surrender is made. If, upon a just construction of that instrument, it shall appear that the State has submitted to be sued, then it has parted with this sovereign right of judging in every case on the justice of its own pretensions, and has entrusted that power to a tribunal in whose impartiality it confides. The American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent States. Under the influence of this opinion, and thus instructed by experience, the American people, in the conventions of their respective States, adopted the present constitution. If it could be doubted, whether from its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration, that "this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; any thing in the constitution or laws of any State to the contrary notwithstanding." This is the authoritative language of the American people; and, if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the government of the Union, and those of the States. The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the constitution; and if there be any who deny its necessity, none can deny its authority. To this supreme government ample powers are confided; and if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared, that they are given "in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity." With the ample powers confided to this supreme government, for these interesting purposes, are connected many express and important limitations on the sovereignty of the States, which are made for the same purposes. The powers of the Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the sovereignty of the States; but in addition to these, the sovereignty of the States is surrendered in many instances where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed, is the judicial department. It is authorized to decide all cases of every description, arising under the constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a State may be a party. When we consider the situation of the government of the Union and of a State, in relation to each other; the nature of our constitution; the subordination of the State governments to that constitution; the great purpose for which jurisdiction over all cases arising under the constitution and laws of the United States, is confided to the judicial department; are we at liberty to insert in this general grant, an exception of those cases in which a State maybe a party? Will the spirit of the constitution justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case. Had any doubt existed with respect to the just construction of this part of the section, that doubt would have been removed by the enumeration of those cases to which the jurisdiction of the federal Courts is extended, in consequence of the character of the parties. In that enumeration, we find "controversies between two or more States, between a State and citizens of another State," "and between a State and foreign States; citizens; or subjects." One of the express objects, then, for which the judicial department was established, is the decision of controversies between States, and between a State and individuals. The mere circumstance, that a State is a party, gives jurisdiction to the Court. How, then, can it be contended, that the very same instrument, in the very same section, should be so construed, as that this same circumstance should withdraw a case from the jurisdiction of the Court, where the constitution or laws of the United States are supposed to have been violated? The constitution gave to every person having a claim upon a State, a right to submit his case to the Court of the nation. However unimportant his claim might be, however little the community might be interested in its decision, the framers of our constitution thought it necessary for the purposes of justice, to provide a tribunal as superior to influence as possible, in which that claim might be decided. Can it be imagined, that the same persons considered a case involving the constitution of our country and the majesty of the laws, questions in which every American citizen must be deeply interested, as withdrawn from this tribunal, because a State is a party?... ... The second objection to the jurisdiction of the Court is, that its appellate power cannot be exercised, in any case, over the judgment of a State Court. This objection is sustained chiefly by arguments drawn from the supposed total separation of the judiciary of a State from that of the Union, and their entire independence of each other. The argument considers the federal judiciary as completely foreign to that of a State; and as being no more connected with it in any respect whatever, than the Court of a foreign State. If this hypothesis be just, the argument founded on it is equally so; but if the hypothesis be not supported by the constitution, the argument fails with it. This hypothesis is not founded on any words in the constitution; which might seem to countenance it, but on the unreasonableness of giving a contrary construction to words which seem to require it; and on the incompatibility of the application of the appellate jurisdiction to the judgments of State Courts, with that constitutional relation which subsists between the government of the Union and the governments of those States which compose it. Let this unreasonableness, this total incompatibility, be examined. That the United States form, for many, and for most important, purposes, a single nation, has not yet been denied. In war, we are one people. In making peace; we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one, and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire for some purposes sovereign, for some purposes subordinate. In a government so constituted, is it unreasonable that the judicial power should be competent to give efficacy to the constitutional laws of the legislature? That department can decide on the validity of the constitution or law of a State, if it be repugnant to the constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a State tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justification for controlling the words of the constitution? We think it is not. We think that in a government acknowledgedly supreme, with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the State tribunals which may contravene the constitution or laws of the United States, is, we believe, essential to the attainment of those objects.... This opinion has been already drawn out to too great a length to admit of entering into a particular consideration of the various forms, in which the counsel who made this point has, with much ingenuity, presented his argument to the Court. The argument in all its forms is essentially the same. It is founded, not on the words of the constitution, but on its spirit, a spirit extracted; not from the words of the instrument; but from his view of the nature of our Union, and of the great fundamental principles on which the fabric stands. To this argument, in all its forms, the same answer may be given. Let the nature and objects of our Union be considered; let the great fundamental principles, on which the fabric stands, be examined; and we think the result must be, that there is nothing so extravagantly absurd in giving to the Court of the nation the power of revising the decisions of local tribunals on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction. The question then must depend on the words themselves: and on their construction we shall be the more readily excused for not adding to the observations already made, because the subject was fully discussed and exhausted in the case of Martin v. Hunter.... JUSTICE BRADLEY, DISSENTING. I cannot agree to the decision of the court in this case. It practically overrules Munn v. Illinois [1877] and the several railroad cases that were decided at the same time. The governing principle of those cases was that the regulation and settlement of the fares of railroads and other public accommodations is a legislative prerogative, and not a judicial one. This is a principle which I regard as of great importance.... It is always a delicate thing for the courts to make an issue with the legislative department of the government, and they should never do so if it is possible to avoid it. By the decision now made, we declare, in effect, that the judiciary, and not the legislature, is the final arbiter in the regulation of fares andfreights of railroads, and the charges of other public accommodations. It is an assumption of authority on the part of the judiciary which, it seems to me, with all due deference to the judgment of my brethren it has no right to make.... The companies complain that the charges as fixed by the commission are unreasonably low, and that they are deprived of their property without due process of law; that they are entitled to a trial by a court and jury, and are not barred by the decisions of a legislative commission. The state court held that the legislature had a right to establish such a commission, and that its determinations are binding and final, and that the courts cannot review them. This court now reverses that decision, and holds the contrary. In my judgment the state court was right; and the establishment of the commission, and its proceedings, were no violation of the constitutional prohibition against depriving persons of their property without due process of law. I think it is perfectly clear, and well settled by the decisions of this court, that the legislature might have fixed the rates in question. If it had done so, it would have done it throughthe aid of committees appointed to investigate the subject, to acquire information, to cite parties, to get all the facts before them, and finally to decide and report. No one could have said that this was not due process of law. And if the legislature itself could do this, acting by its committees, and proceeding according to the usual forms adopted by such bodies, I can see no good reason why it might not delegate the duty to a board of commissioners, charged, as the board in this case was, to regulate and fix the charges so as to be equal and reasonable.... If not in terms, yet in effect, the present cases are treated as if the constitutional prohibition was that no state shall take private property for public use without just compensation, and as if it was our duty to judge of the compensation. But there is no such clause in the constitution of the United States. The fifth amendment is prohibitory upon the federal government only, and not upon the state governments. In this matter,--just compensation for property taken for public use,--the states make their own regulations, by constitution or otherwise.... I am authorized to say that MR. JUSTICE GRAY and MR. JUSTICE LAMAR agree with me in this dissenting opinion.

Ex parte Endo (1944)

Vote: 9 (Black, Douglas, Frankfurter, Jackson, Murphy, Reed, Roberts, Rutledge, Stone) 0 Opinion of the Court: Douglas Concurring opinions: Murphy, Roberts FACTS In Korematsu v. United States (1944), the justices upheld orders removing Americans of Japanese origin to detention camps. That decision was softened--but only slightly--by Ex parte Endo (1944), handed down the same day. In this case Mitsuye Endo had been caught attempting to escape from a detention center. However, she had gone through the appropriate government procedures and had been classified as loyal to the United States. The justices ruled in her favor, holding that the government does not have the authority to detain persons whose loyalty to the country has been established. MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. This case comes here on a certificate of the Court of Appeals for the Ninth Circuit, certifying to us questions of law upon which it desires instructions for the decision of the case. Acting under that section we ordered the entire record to be certified to this Court so that we might proceed to a decision, as if the case had been brought here by appeal. Mitsuye Endo, hereinafter designated as the appellant, is an American citizen of Japanese ancestry. She was evacuated from Sacramento, California, in 1942, pursuant to certain military orders which we will presently discuss, and was removed to the Tule Lake War Relocation Center located at Newell, Modoc County, California. In July, 1942, she filed a petition for a writ of habeas corpus in the District Court of the United States for the Northern District of California, asking that she be discharged and restored to liberty. That petition was denied by the District Court in July, 1943, and an appeal was prefected to the Circuit Court of Appeals in August, 1943. Shortly thereafter appellant was transferred from the Tule Lake Relocation Center to the Central Utah Relocation Center located at Topaz, Utah, where she is presently detained. The certificate of questions of law was filed here on April 22, 1944, and on May 8, 1944, we ordered the entire record to be certified to this Court. It does not appear that any respondent was ever served with process or appeared in the proceedings. But the United States Attorney for the Northern District of California argued before the District Court that the petition should not be granted. And the Solicitor General argued the case here. The history of the evacuation of Japanese aliens and citizens of Japanese ancestry from the Pacific coastal regions, following the Japanese attack on our Naval Base at Pearl Harbor on December 7, 1941, and the declaration of war against Japan on December 8, 1941, has been reviewed in Kiyoshi Hirabayashi v. United States [also in the case archive].... Mitsuye Endo made application for leave clearance on February 19, 1943, after the petition was filed in the District Court. Leave clearance was granted her on August 16, 1943. But she made no application for indefinite leave. Her petition for a writ of habeas corpus alleges that she is a loyal and law-abiding citizen of the United States, that no charge has been made against her, that she is being unlawfully detained, and that she is confined in the Relocation Center under armed guard and held there against her will. It is conceded by the Department of Justice and by the War Relocation Authority that appellant is a loyal and law-abiding citizen. They make no claim that she is detained on any charge or that she is even suspected of disloyalty. Moreover, they do not contend that she may be held any longer in the Relocation Center. They concede that it is beyond the power of the War Relocation Authority to detain citizens against whom no charges of disloyalty or subversiveness have been made for a period longer than that necessary to separate the loyal from the disloyal and to provide the necessary guidance for relocation. But they maintain that detention for an additional period after leave clearance has been granted is an essential step in the evacuation program.... ... We are of the view that Mitsuye Endo should be given her liberty. In reaching that conclusion we do not come to the underlying constitutional issues which have been argued. For we conclude that, whatever power the War Relocation Authority may have to detain other classes of citizens, it has no authority to subject citizens who are concededly loyal to its leave procedure. It should be noted at the outset that we do not have here a question such as was presented in Ex parte Milligan or in Ex parte Quirin, where the jurisdiction of military tribunals to try persons according to the law of war was challenged in habeas corpus proceedings. Mitsuye Endo is detained by a civilian agency, the War Relocation Authority, not by the military. Moreover, the evacuation program was not left exclusively to the military; the Authority was given a large measure of responsibility for its execution and Congress made its enforcement subject to civil penalties by the Act of March 21, 1942. Accordingly, no questions of military law are involved. Such power of detention as the Authority has stems from Executive Order No. 9066. That order is the source of the authority delegated by General De Witt in his letter of August 11, 1942. And Executive Order No. 9102 which created the War Relocation Authority purported to do no more than to implement the program authorized by Executive Order No. 9066. We approach the construction of Executive Order No. 9066 as we would approach the construction of legislation in this field. That Executive Order must indeed be considered along with the Act of March 21, 1942, which ratified and confirmed it ( Kiyoshi Hirabayashi v. United States, supra,) as the Order and the statute together laid such basis as there is for participation by civil agencies of the federal government in the evacuation program. Broad powers frequently granted to the President or other executive officers by Congress so that they may deal with the exigencies of war time problems have been sustained. And the Constitution when it committed to the Executive and to Congress the exercise of the war power necessarily gave them wide scope for the exercise of judgment and discretion so that war might be waged effectively and successfully. At the same time, however, the Constitution is as specific in its enumeration of many of the civil rights of the individual as it is in its enumeration of the powers of his government. Thus it has prescribed procedural safeguards surrounding the arrest, detention and conviction of individuals. Some of these are contained in the Sixth Amendment, compliance with which is essential if convictions are to be sustained. And the Fifth Amendment provides that no person shall be deprived of liberty (as well as life or property) without due process of law. Moreover, as a further safeguard against invasion of the basic civil rights of the individual it is provided in Art. I, Sec. 9 of the Constitution that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." See Ex parte Milligan. We mention these constitutional provisions not to stir the constitutional issues which have been argued at the bar but to indicate the approach which we think should be made to an Act of Congress or an order of the Chief Executive that touches the sensitive area of rights specifically guaranteed by the Constitution. This Court has quite consistently given a narrower scope for the operation of the presumption of constitutionality when legislation appeared on its face to violate a specific prohibition of the Constitution. We have likewise favored that interpretation of legislation which gives it the greater chance of surviving the test of constitutionality. Those analogies are suggestive here. We must assume that the Chief Executive and members of Congress, as well as the courts, are sensitive to and respectful of the liberties of the citizen. In interpreting a war-time measure we must assume that their purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used. The Act of March 21, 1942, was a war measure. And Executive Order No. 9102 which established the War Relocation Authority did so "in order to provide for the removal from designated areas of persons whose removal is necessary in the interests of national security." The purpose and objective of the Act and of these orders are plain. Their single aim was the protection of the war effort against espionage and sabotage. It is in light of that one objective that the powers conferred by the orders must be construed. Neither the Act nor the orders use the language of detention. The Act says that no one shall "enter, remain in leave, or commit any act" in the prescribed military areas contrary to the applicable restrictions. Executive Order No. 9066 subjects the right of any person "to enter, remain in, or leave" those prescribed areas to such restrictions as the military may impose. And apart from those restrictions the Secretary of War is only given authority to afford the evacuees "transportation, food, shelter, and other accommodations." Executive Order No. 9102 authorizes and directs the War Relocation Authority "to formulate and effectuate a program for the removal" of the persons covered by Executive Order No. 9066 from the prescribed military areas and "for their relocation, maintenance, and supervision." And power is given the Authority to make regulations "necessary or desirable to promote effective execution of such program." Moreover, unlike the case of curfew regulations ( Kiyoshi Hirabayashi v. United States), the legislative history of the Act of March 21, 1942, is silent on detention. And that silence may have special significance in view of the fact that detention in Relocation Centers was no part of the original program of evacuation but developed later to meet what seemed to the officials in charge to be mounting hostility to the evacuees on the part of the communities where they sought to go. We do not mean to imply that detention in connection with no phase of the evacuation program would be lawful. The fact that the Act and the orders are silent on detention does not of course mean that any power to detain is lacking. Some such power might indeed be necessary to the successful operation of the evacuation program. At least we may so assume. Moreover, we may assume for the purposes of this case that initial detention in Relocation Centers was authorized. But we stress the silence of the legislative history and of the Act and the Executive Orders on the power to detain to emphasize that any such authority which exists must be implied. If there is to be the greatest possible accommodation of the liberties of the citizen with this war measure, any such implied power must be narrowly confined to the precise purpose of the evacuation program. A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind not of race, creed, or color. He who is loyal is by definition not a spy or a saboteur. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized. Nor may the power to detain an admittedly loyal citizen or to grant him a conditional release be implied as a useful or convenient step in the evacuation program, whatever authority might be implied in case of those whose loyalty was not conceded or established. If we assume (as we do) that the original evacuation was justified, its lawful character was derived from the fact that it was an espionage and sabotage measure, not that there was community hostility to this group of American citizens. The evacuation program rested explicitly on the former ground not on the latter as the underlying legislation shows. The authority to detain a citizen or to grant him a conditional release as protection against espionage or sabotage is exhausted at least when his loyalty is conceded. If we held that the authority to detain continued thereafter, we would transform an espionage or sabotage measure into something else. That was not done by Executive Order No. 9066 or by the Act of March 21, 1942, which ratified it. What they did not do we cannot do. Detention which furthered the campaign against espionage and sabotage would be one thing. But detention which has no relationship to that campaign is of a distinct character. Community hostility even to loyal evacuees may have been (and perhaps still is) a serious problem. But if authority for their custody and supervision is to be sought on that ground, the Act of March 21, 1942, Executive Order No. 9066, and Executive Order No. 9102, offer no support. And none other is advanced. To read them that broadly would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption. As the President has said of these loyal citizens: "Americans of Japanese ancestry, like those of many other ancestries, have shown that they can, and want to, accept our institutions and work loyally with the rest of us, making their own valuable contribution to the national wealth and well-being. In vindication of the very ideals for which we are fighting this war it is important to us to maintain a high standard of fair, considerate, and equal treatment for the people of this minority as of all other minorities." Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority.... The judgment is reversed and the cause is remanded to the District Court for proceedings in conformity with this opinion. Reversed. MR. JUSTICE MURPHY, CONCURRING I join in the opinion of the Court, but I am of the view that detention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive but is another example of the unconstitutional resort to racism inherent in the entire evacuation program. As stated more fully in my dissenting opinion in Fred Toyosaburo Korematsu v. United States, racial discrimination of this nature bears no reasonable relation to military necessity and is utterly foreign to the ideals and traditions of the American people. Moreover, the Court holds that Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority. It appears that Miss Endo desires to return to Sacramento, California, from which Public Proclamations Nos. 7 and 11, as well as Civilian Exclusion Order No. 52, still exclude her. And it would seem to me that the "unconditional" release to be given Miss Endo necessarily implies "the right to pass freely from state to state," including the right to move freely into California. If, as I believe, the military orders excluding her from California were invalid at the time they were issued, they are increasingly objectionable at this late date, when the threat of invasion of the Pacific Coast and the fears of sabotage and espionage have greatly diminished. For the Government to suggest under these circumstances that the presence of Japanese blood in a loyal American citizen might be enough to warrant her exclusion from a place where she would otherwise have a right to go is a position I cannot sanction. MR. JUSTICE ROBERTS.

Frothingham v. Mellon (1923)

Vote: 9 (Brandeis, Butler, Holmes, McKenna, McReynolds, Sanford, Sutherland, Van Devanter, Taft) 0 OPINION OF THE COURT: Sutherland FACTS For a party to bring suit against another, it must first prove that it has standing, meaning that if the party bringing the litigation is not the appropriate party, the courts will not resolve the dispute. As Justice Brennan noted in Baker v. Carr, Article III requires that litigants demonstrate "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions." In most private disputes, the litigants have no difficulty demonstrating a personal stake or injury. The more interesting constitutional questions have arisen in suits that involve parties wishing to challenge some government action on the grounds that they are taxpayers. Does the fact that these individuals pay taxes provide a sufficiently personal stake in litigation to meet the requirement for standing? The Court first addressed this question in Frothingham v. Mellon (1923). At issue was the Sheppard-Towner Maternity Act, in which Congress provided federal maternity aid to the states to fund programs designed to reduce infant mortality rates. Although many progressive groups had lobbied for the law, other organizations viewed it as an unconstitutional intrusion into the family and into the rights of states. They decided to challenge it and enlisted one among their ranks, Harriet Frothingham, to serve as a plaintiff. She was not a participant in the program, but rather a taxpayer who did not want her tax dollars spent on it. Her attorneys argued that her status as a taxpayer gave her sufficient grounds to bring suit. MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. ... [Frothingham] alleges that she is a taxpayer of the United States; and her contention, though not clear, seems to be that the effect of the appropriations complained of will be to increase the burden of future taxation and thereby take her property without due process of law. The right of a taxpayer to enjoin the execution of a federal appropriation act, on the ground that it is invalid and will result in taxation for illegal purposes, has never been passed upon by this Court.... The [federal taxpayer's] interest in the moneys of the Treasury--partly realized from taxation and partly from other sources--is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity. The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained. It is of much significance that no precedent sustaining the right to maintain suits like this has been called to our attention, although, since the formation of the government, as an examination of the acts of Congress will disclose, a large number of statutes appropriating or involving the expenditure of moneys for non-federal purposes have been enacted and carried into effect. The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct or restrain the action of the other. We are not now speaking of the merely ministerial duties of officials.... We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess. Affirmed.

The Prize Cases (1863)

War and National Defense: Relevant Facts: President Lincoln declared a blockade of southern ports in 1861. Pursuant to this blockade Union ships seized merchant vessels and their cargoes of foreign neutrals and residents of the southern states. The ships were condemned by federal ct. order. Legal Issue(s): Whether the President had authority to institute a blockade of southern ports? Court's Holding: Yes Procedure: The owners of the scuttled ships and seized cargo appealed the federal ct. order directly to the S. Ct. Affirmed except as to certain cargo which was bought before the outbreak of War. Law or Rule(s): A1S8C11 - Congress shall have the power to declare war. Court Rationale: By Acts of Congress the President is authorized to call out the militia and use the military and naval forces to suppress insurrection against the government of a state or the U.S. The proclamation of the blockade is official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure. The President was bound to meet the war in the shape it presented itself, w/o waiting for Congress. Congress passed an Act "approving, legalizing, and making valid all the acts, proclamations, and orders of the President as if they had been issued and done under the previous express authority and direction of the Congress. Plaintiff's Argument: (Ship Owners) The President has no Constitutional power to initiate or declare war. Defendant's Argument: (Govt) Acts of Congress conferred the authority to the President to act pursuant to wartime. President was already the Commander in Chief and mandated to faithfully carry out and execute the laws of the U.S. which said Acts were. Inter gentes - Among or between People Ex Majore cautela - by a greater person's care or caution Unilateral - mutual panoply - full effect, display or spectacle.

Federalism

A set out plan of operation for the exercise of state and federal power. Constitutional guidelines: -The Constitution gratns certain legislative, executive, and judicial powers to the national gov't. Those not granted to the national gov't are reserved to the states. -The Constitution makes the national gov't supreme. The Constitution, all laws passed pursuant to it, and treaties are the supreme law of the land. American citizens, most of whom are also state citizens, and state officials owe their primary allegiance to the national gov't. -The Constitution denies some powers to both national and state gov'ts, some only to the national gov't, and still others only to the state gov'ts.

Advisory Opinions

A statement issued by a court, not in connection with a lawsuit, that provides executive or legislative branch officials the judgment of the court regarding the legality of proposed laws or government actions. Federal courts do not have the power to issue advisory opinions, but some state courts do. (pp. 93-94)

Implied Powers*

Powers appropriately exercised by Congress because they are reasonably implied from the enumerated powers. This allocation of authority is based on the Necessary and Proper Clause. (pp. 144-145)

Formalism

An approach to the separation of powers that holds that the Constitution creates clear boundaries between and among the three branches bestowing on each a primary power. Unless the Constitution clearly permits it, deviation from this allocation of power should not be allowed. (p. 253)

Functionalism

An approach to the separation of powers that rejects strict divisions among the branches and instead emphasizes a fluid system of shared powers. The functional approach holds that the separation of powers doctrine should only prohibit excessive accumulations of power by one branch of government over the other two branches. (p. 253)

Certiorari

An order of an appellate court to an inferior court to send up the records of a case that the appellate court has elected to review. It is the primary method by which the U.S. Supreme Court exercises its discretionary jurisdiction to accept appeals for a full hearing. (pp. 14-15, 17-19)

United States v. Nixon (1974)

Facts: President Nixon filed a motion to quash a federal court subpoena directing him to produce tape recordings and documents of his conversations with aides and advisers. Nixon asserted absolute executive privilege against complying with the subpoena and claimed that the separation of powers doctrine precluded judicial review of the privilege claim. Issue: Does judicial review of, and asserted preeminence over, claims of Presidential privilege violate the separation of powers doctrine? Rule: (Burger, C.J.) The Supreme Court's authority to interpret claims of powers allegedly derived from enumerated constitutional powers includes the authority to assess the validity of a claim of privilege. Neither the separation of powers doctrine nor a generalized need for Presidential confidentiality can sustain an absolute Presidential privilege of immunity when that privilege conflicts with courts' ability to administer justice.

Ex parte Milligan (1866)

In Ex parte Milligan (1866), the Supreme Court ruled that a prisoner's ability to challenge his or her detention could only be suspended for a brief and finite period of time, and only if the situation compelled it. The Court also ruled that military tribunals generally lack jurisdiction over civilians who are not connected with or engaged in armed conflict. Assessing the rights of an Indiana citizen accused of plotting against Union forces during the Civil War, the basic rules defined in Milligan are quite relevant today. On October 5, 1864, Lamdin P. Milligan was taken into custody by the U.S. government on various charges of insubordination against the Union. The government accused Milligan of joining "a secret society known as the Order of American Knights ... for the purpose of overthrowing" the government, "holding communication with the enemy; conspiring to seize munitions of war stored in the arsenals; to liberate prisoners of war; [and] resisting the draft." Though he was an American citizen and resident and citizen of the state of Indiana, Milligan was tried before a "military tribunal" in Indiana and convicted on all charges. He was then sentenced to death by hanging and moved to a military prison. Days before his scheduled execution, Milligan petitioned for a writ of habeas corpus in a local federal court. The term "habeas corpus" is Latin for "you [should] have the body," and a "writ of habeas corpus" is a court order to release a prisoner being held unjustly by the government. In his petition, Milligan argued that the military tribunal had no jurisdiction (power) to try him because he was an American citizen living in a non-rebellious state (Indiana) and the laws thus gave him a right to a criminal trial in a civilian court. In 1866, shortly after the end of the Civil War, the Supreme Court agreed to review Milligan's petition. (In 1863, the Court had effectively ducked a similar case, ex parte Vallandigham, holding that since no act explicitly granted the Court jurisdiction over the military tribunals, it lacked jurisdiction to review the appeals of those convicted under their auspices.) The Supreme Court ruled that the military tribunal lacked jurisdiction over Milligan and that he should have been tried in a federal civilian court. The Court first noted that Milligan was an American citizen who was a resident of a non-rebellious state, Indiana, during the Civil War. The Court also noted that Milligan was not connected to the armed forces and had not been fighting Union forces when he was captured, and that the civil courts of Indiana were operational at the time. Accordingly, the Court also argued Milligan was denied basic constitutional rights in being subjected to a military tribunal. These included the right to trial by jury, the right to be sentenced separately from trial, and various evidentiary and procedural rights incident to civilian trials. Together, the Court concluded that the laws and Constitution demand that Milligan, as with any other civilian, not be tried by a military tribunal if, as in this case, there is a civilian court available instead. To find otherwise, the Court opined, would mean that "republican government is a failure, and there is an end of liberty regulated by law." The Court warned that "Martial law" in such a system "destroys every guarantee of the Constitution, and effectually renders the 'military independent of and superior to the civil power.'" Ex parte Milligan was a stalwart affirmation of basic rights and liberties most Americans take for granted today.

Ripeness

The degree to which a dispute has evolved so that the legal issues and the facts are sufficiently developed to permit a court to issue a clear decision. (p. 95-96)

Immunity*

The doctrine that the president cannot be subject to lawsuit while in office. (pp. 228-241)

Amendment Enforcing Powers*

The power granted by certain amendments to the Constitution (e.g., the Fourteenth Amendment) authorizing Congress to pass legislation for the enforcement of the amendment. (pp. 172-177)

Hampton & Co. v. United States (1928)

Vote: 9 (Brandeis, Butler, Holmes, McReynolds, Sanford, Stone, Sutherland, Taft, Van Devanter) 0 Opinion of the Court: Taft FACTS In this case the Court examined the Fordney-McCumber Act of 1922, in which Congress established a tariff commission within the executive branch and permitted the president to increase or decrease tariffs on imported goods by as much as 50 percent. Because Congress gave the president (and the commission) virtually unlimited discretion to adjust rates, an import company challenged the act as a violation of the separation of powers doctrine. The company argued that Congress had provided the president with what was essentially a lawmaking power. Writing for a unanimous Court, Chief Justice William Howard Taft--a former president of the United States--disagreed: "In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination." So long as Congress "shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform," said Taft, "such legislative action is not a forbidden delegation of legislative power." MR. CHIEF JUSTICE TAFT DELIVERED THE OPINION OF THE COURT. The issue here is as to the constitutionality of section 315 [of the Fordney-McCumber Act], upon which depends the authority for the proclamation of the President and for two of the six cents per pound duty collected from the petitioner. The contention of the taxpayers is that the section is invalid in that it is a delegation to the President of the legislative power, which by article 1, 1 of the Constitution, is vested in Congress, the power being that declared in section 8 of article 1, that the Congress shall have power to lay and collect taxes, duties, imposts and excises.... First. It seems clear what Congress intended by section 315. Its plan was to secure by law the imposition of customs duties on articles of imported merchandise which should equal the difference between the cost of producing in a foreign country the articles in question and laying them down for sale in the United States, and the cost of producing and selling like or similar articles in the United States, so that the duties not only secure revenue, but at the same time enable domestic producers to compete on terms of equality with foreign producers in the markets of the United States. It may be that it is difficult to fix with exactness this difference, but the difference which is sought in the statute is perfectly clear and perfectly intelligible. Because of the difficulty in practically determining what that difference is, Congress seems to have doubted that the information in its possession was such as to enable it to make the adjustment accurately, and also to have apprehended that with changing conditions the difference might vary in such a way that some readjustments would be necessary to give effect to the principle on which the statute proceeds. To avoid such difficulties, Congress adopted in section 315 the method of describing with clearness what its policy and plan was and then authorizing a member of the executive branch to carry out its policy and plan and to find the changing difference from time to time and to make the adjustments necessary to conform the duties to the standard underlying that policy and plan. As it was a matter of great importance, it concluded to give by statute to the President, the chief of the executive branch, the function of determining the difference as it might vary. He was provided with a body of investigators who were to assist him in obtaining needed data and ascertaining the facts justifying readjustments. There was no specific provision by which action by the President might be invoked under this act, but it was presumed that the President would through this body of advisers keep himself advised of the necessity for investigation or change, and then would proceed to pursue his duties under the act and reach such conclusion as he might find justified by the investigation and proclaim the same, if necessary. The Tariff Commission does not itself fix duties, but, before the President reaches a conclusion on the subject of investigation, the Tariff Commission must make an investigation, and in doing so must give notice to all parties interested and an opportunity to adduce evidence and to be heard. The well-known maxim 'Delegata potestas non potest delegari,' applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our federal and state Constitutions than it has in private law. Our Federal Constitution and state Constitutions of this country divide the governmental power into three branches. The first is the legislative, the second is the executive, and the third is the judicial, and the rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the state executive, the Governor, the executive power, and the courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination. The field of Congress involves all and many varieties of legislative action, and Congress has found it frequently necessary to use officers of the executive branch within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations. Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an executive, or, as often happens in matters of state legislation, it may be left to a popular vote of the residents of a district to be affected by the legislation. While in a sense one may say that such residents are exercising legislative power, it is not an exact statement, because the power has already been exercised legislatively by the body vested with that power under the Constitution, the condition of its legislation going into effect being made dependent by the Legislature on the expression of the voters of a certain district.... Again, one of the great functions conferred on Congress by the Federal Constitution is the regulation of interstate commerce and rates to be exacted by interstate carriers for the passenger and merchandise traffic. The rates to be fixed are myriad. If Congress were to be required to fix every rate, it would be impossible to exercise the power at all. Therefore, common sense requires that in the fixing of such rates Congress may provide a Commission, as it does, called the Interstate Commerce Commission, to fix those rates, after hearing evidence and argument concerning them from interested parties, all in accord with a general rule that Congress first lays down that rates shall be just and reasonable considering the service given and not discriminatory. As said by this Court in Interstate Commerce Commission v. Goodrich Transit Co.: 'The Congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations and the investigation of facts, with a view to making orders in a particular matter within the rules laid down by the Congress.'... It is conceded by counsel that Congress may use executive officers in the application and enforcement of a policy declared in law by Congress and authorize such officers in the application of the congressional declaration to enforce it by regulation equivalent to law. But it is said that this never has been permitted to be done where Congress has exercised the power to levy taxes and fix customs duties. The authorities make no such distinction. The same principle that permits Congress to exercise its rate-making power in interstate commerce by declaring the rule which shall prevail in the legislative fixing of rates, and enables it to remit to a rate-making body created in accordance with its provisions the fixing of such rates, justifies a similar provision for the fixing of customs duties on imported merchandise. If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under congressional authority.... The judgment of the Court of Customs Appeals is affirmed.

Hamdan v. Rumsfeld (2006)

Vote: 5 (Breyer, Ginsburg, Kennedy, Souter, Stevens) 3 (Alito, Scalia, Thomas) OPINION OF THE COURT:Stevens Concurring opinions: Breyer, Kennedy Dissenting opinions: Alito, Scalia, Thomas Not participating: Roberts FACTS In response to the September 11, 2001, attacks on the United States by the terrorist organization, al Qaeda, Congress adopted a Joint Resolution authorizing the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." This resolution is known as the Authorization for Use of Military Force (AUMF). President George W. Bush, acting pursuant to the AUMF, ordered the U.S. military to invade Afghanistan. During the hostilities there, hundreds of individuals, Salim Ahmed Hamdan among them, were captured and eventually detained at Guantanamo Bay, Cuba. While the United States was still engaged in active combat in Afghanistan, Bush issued a military order intended to govern the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" (which the Supreme Court, in the excerpt below, calls the November 13, 2001, Order, or Order). Those subject to the Order included any noncitizen for whom the president determines there is reason to believe (1) is or was a member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or harmful to the United States. Such persons, known as "enemy combatants," may be tried by a military commission. To administer the program, the secretary of defense named a retired U.S. Army general as "Appointing Authority for Military Commissions." In 2004 Hamdan was charged officially with conspiracy to commit offenses triable by a military commission. Specifically, the government alleged that between 1996 and 2001 Hamdan willfully and knowingly joined an enterprise of persons who shared a common criminal purpose of attacking civilians and civilian objects. There was no allegation that Hamdan had any command responsibilities, exercised any leadership, or participated in the planning of any activity. His role in the conspiracy, according to the government, included acting as Osama bin Laden's personal driver, arranging and providing transportation for al Qaeda members, and receiving weapons training at al Qaeda-sponsored camps. After the formal charge was filed, proceedings before the military commission began. Seeking to stop them, Hamdan's court-appointed military attorney filed for a writ of habeas corpus in a federal district court, where he argued that the commission lacked authority to try Hamdan because (1) conspiracy is not an offense that violates the law of war; and (2) the procedures adopted to try him were inconsistent with the basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him. The district court granted Hamdan's petition for habeas corpus and stayed the commission's proceedings, but the U.S. Court of Appeals for the District of Columbia reversed. The Supreme Court granted certiorari. This complex case confronted questions such as: (1) did the Supreme Court have jurisdiction to hear appeals from Guantanamo detainees? (2) did the president act legally in establishing the military commissions? (3) were the procedures followed by the military commissions in violation of either the Uniform Code of Military Justice (UCMJ) or the Geneva Conventions? and (4) is conspiracy an offense legally triable by a military commission. Note that because Chief Justice John Roberts participated in the case at the court of appeals level, he recused himself from the Supreme Court's review. JUSTICE STEVENS ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH RESPECT TO PARTS I THROUGH IV, PARTS VI THROUGH VI-D-III, PART VI-D-V, AND PART VII, AND AN OPINION WITH RESPECT TO PARTS V AND VI-D-IV, IN WHICH JUSTICE SOUTER, JUSTICE GINSBURG, AND JUSTICE BREYER JOIN. For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions. Four of us also conclude, see Part V, that the offense with which Hamdan has been charged is not an "offens[e] that by . . . the law of war may be tried by military commissions." 10 U. S. C. §821. II On February 13, 2006, the Government filed a motion to dismiss the writ of certiorari. The ground cited for dismissal was the recently enacted Detainee Treatment Act of 2005 (DTA). We postponed our ruling on that motion pending argument on the merits, and now deny it. The DTA, which was signed into law on December 30, 2005, addresses a broad swath of subjects related to detainees. . . . Subsection (e) of §1005, which is entitled "Judicial Review of Detention of Enemy Combatants," supplies the basis for the Government's jurisdictional argument. The subsection contains three numbered paragraphs. The first paragraph amends the judicial code as follows: " '. . . Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider-- " '(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or " '(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who " '(A) is currently in military custody; or " '(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit . . . to have been properly detained as an enemy combatant.' " Paragraph (2) of subsection (e) vests in the Court of Appeals for the District of Columbia Circuit the "exclusive jurisdiction to determine the validity of any final decision of a [Combatant Status Review Tribunal or CSRT] that an alien is properly designated as an enemy combatant.". . . Paragraph (3) . . . governs judicial review of final decisions of military commissions, not CSRTs. It vests in the Court of Appeals for the District of Columbia Circuit "exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).". . . . . . [The law states that the provisions of paragraphs 2 and 3 extend to any claims pending as of the date of the enactment of the statute.] The Act is silent about whether paragraph (1) . . . "shall apply" to claims pending on the date of enactment. The Government argues that [the DTA] had the immediate effect, upon enactment, of repealing federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court--including this Court. Accordingly, it argues, we lack jurisdiction to review the Court of Appeals' decision below. . . . . . . Ordinary principles of statutory construction suffice to rebut the Government's theory--at least insofar as this case, which was pending at the time the DTA was enacted, is concerned. . . . . . . A familiar principle of statutory construction . . . is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute. . . . . . . "If Congress was reasonably concerned to ensure that [paragraphs 2 and 3] be applied to pending cases, it should have been just as concerned about [paragraph 1], unless it had the different intent that the latter [section] not be applied to the general run of pending cases." . . . Here, Congress not only considered the respective temporal reaches of paragraphs [1, 2, and 3] together at every stage, but omitted paragraph (1) from its directive that paragraphs (2) and (3) apply to pending cases only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within the scope of that directive. Congress' rejection of the very language that would have achieved the result the Government urges here weighs heavily against the Government's interpretation. . . . . . . Congress here expressly provided that subsections (e)(2) and (e)(3) applied to pending cases. It chose not to so provide--after having been presented with the option--for subsection (e)(1). The omission is an integral part of the statutory scheme that muddies whatever "plain meaning" may be discerned from blinkered study of subsection (e)(1) alone. . . . For these reasons, we deny the Government's motion to dismiss. III Relying on our decision in [ Schlessinger v. ] Councilman (1975), the Government argues that, even if we have statutory jurisdiction, we should apply the "judge-made rule that civilian courts should await the final outcome of on-going military proceedings before entertaining an attack on those proceedings." Like the District Court and the Court of Appeals before us, we reject this argument. . . . Councilman identifies two considerations of comity that together favor abstention pending completion of ongoing court-martial proceedings against service personnel. First, military discipline and, therefore, the efficient operation of the Armed Forces are best served if the military justice system acts without regular interference from civilian courts. Second, federal courts should respect the balance that Congress struck between military preparedness and fairness to individual service members when it created "an integrated system of military courts and review procedures, a critical element of which is the Court of Military Appeals, consisting of civilian judges 'completely removed from all military influence or persuasion. . . .' ". . . . . . [N]either of the comity considerations identified in Councilman weighs in favor of abstention in this case. First, Hamdan is not a member of our Nation's Armed Forces, so concerns about military discipline do not apply. Second, the tribunal convened to try Hamdan is not part of the integrated system of military courts, complete with independent review panels, that Congress has established. . . . Finally, the Government has identified no other "important countervailing interest" that would permit federal courts to depart from their general "duty to exercise the jurisdiction that is conferred upon them by Congress." To the contrary, Hamdan and the Government both have a compelling interest in knowing in advance whether Hamdan may be tried by a military commission that arguably is without any basis in law and operates free from many of the procedural rules prescribed by Congress for courts-martial--rules intended to safeguard the accused and ensure the reliability of any conviction. . . . [A]bstention is not justified here. We therefore proceed to consider the merits of Hamdan's challenge. IV The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity. . . . Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article I, §8 and Article III, §1 of the Constitution unless some other part of that document authorizes a response to the felt need. See Ex parte Milligan (1866). And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war. The Constitution makes the President the "Commander in Chief" of the Armed Forces, but vests in Congress the powers to "declare War . . . and make Rules concerning Captures on Land and Water," to "raise and support Armies," to "define and punish . . . Offences against the Law of Nations," and "To make Rules for the Government and Regulation of the land and naval Forces." The interplay between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan : ". . . Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity. . . ." Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions "without the sanction of Congress" in cases of "controlling necessity" is a question this Court has not answered definitively, and need not answer today. For we held in [ Ex parte] Quirin [1942] that Congress had, through Article of War 15 [which is substantially identical to current Article 21 of the UCMJ], sanctioned the use of military commissions in such circumstances. . . . We have no occasion to revisit Quirin's controversial characterization of Article of War 15 as congressional authorization for military commissions. Contrary to the Government's assertion, however, even Quirin did not view the authorization as a sweeping mandate for the President to "invoke military commissions when he deems them necessary." Rather, the Quirin Court recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President had had before 1916 to convene military commissions--with the express condition that the President and those under his command comply with the law of war. . . . The Government would have us dispense with the inquiry that the Quirin Court undertook and find in either the AUMF or the DTA specific, overriding authorization for the very commission that has been convened to try Hamdan. Neither of these congressional Acts, however, expands the President's authority to convene military commissions. First, while we assume that the AUMF activated the President's war powers, see Hamdi v. Rumsfeld (2004), and that those powers include the authority to convene military commissions in appropriate circumstances, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Article 21 or the AUMF, was enacted after the President had convened Hamdan's commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. . . . Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the "Constitution and laws," including the law of war. Absent a more specific congressional authorization, the task of this Court is, as it was in Quirin, to decide whether Hamdan's military commission is so justified. It is to that inquiry we now turn. V . . .The classic treatise [ Military Law and Precedents, 1920] penned by Colonel William Winthrop, whom we have called "the 'Blackstone of Military Law,' " describes at least four preconditions for exercise of jurisdiction by a tribunal of the type convened to try Hamdan. First, "[a] military commission, (except where otherwise authorized by statute), can legally assume jurisdiction only of offenses committed within the field of the command of the convening commander." The "field of command" in these circumstances means the "theatre of war." Second, the offense charged "must have been committed within the period of the war." No jurisdiction exists to try offenses "committed either before or after the war." Third, a military commission not established pursuant to martial law or an occupation may try only "[i]ndividuals of the enemy's army who have been guilty of illegitimate warfare or other offences in violation of the laws of war" and members of one's own army "who, in time of war, become chargeable with crimes or offences not cognizable, or triable, by the criminal courts or under the Articles of war." Finally, a law-of-war commission has jurisdiction to try only two kinds of offense: "Violations of the laws and usages of war cognizable by military tribunals only," and "[b]reaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of war." All parties agree that Colonel Winthrop's treatise accurately describes the common law governing military commissions, and that the jurisdictional limitations he identifies were incorporated in Article of War 15 and, later, Article 21 of the UCMJ. . . . The question is whether the preconditions designed to ensure that a military necessity exists to justify the use of this extraordinary tribunal have been satisfied here. The charge against Hamdan . . . alleges a conspiracy extending over a number of years, from 1996 to November 2001. All but two months of that more than 5-year-long period preceded the attacks of September 11, 2001, and the enactment of the AUMF--the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions. Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war. These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict. But the deficiencies in the time and place allegations also underscore--indeed are symptomatic of--the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission. There is no suggestion that Congress has, in exercise of its constitutional authority to "define and punish . . . Offences against the Law of Nations," U. S. Const., Art. I, §8, cl. 10, positively identified "conspiracy" as a war crime. . . . . . . The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war. . . . The charge's shortcomings are not merely formal, but are indicative of a broader inability on the Executive's part here to satisfy the most basic precondition--at least in the absence of specific congressional authorization--for establishment of military commissions: military necessity. Hamdan's tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime, but it is not an offense that "by the law of war may be tried by military commissio[n]." None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court's precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment. VI Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President's use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the "rules and precepts of the law of nations." The procedures that the Government has decreed will govern Hamdan's trial by commission violate these laws. VI A-C The commission's procedures are set forth in Commission Order No. 1, which was amended most recently on August 31, 2005--after Hamdan's trial had already begun. . . . Hamdan raises both general and particular objections to the procedures set forth in Commission Order No. 1. His general objection is that the procedures' admitted deviation from those governing courts-martial itself renders the commission illegal. Chief among his particular objections are that he may, under the Commission Order, be convicted based on evidence he has not seen or heard, and that any evidence admitted against him need not comply with the admissibility or relevance rules typically applicable in criminal trials and court-martial proceedings. . . . . . . [T]he procedures governing trials by military commission historically have been the same as those governing courts-martial. . . . The uniformity principle is not an inflexible one; it does not preclude all departures from the procedures dictated for use by courts-martial. But any departure must be tailored to the exigency that necessitates it. That understanding is reflected in Article 36 of the UCMJ. . . . Article 36 places two restrictions on the President's power to promulgate rules of procedure for courts-martial and military commissions alike. First, no procedural rule he adopts may be "contrary to or inconsistent with" the UCMJ--however practical it may seem. Second, the rules adopted must be . . . the same as those applied to courts-martial unless such uniformity proves impracticable. Hamdan argues that Commission Order No. 1 violates both of these restrictions. . . . Among the inconsistencies Hamdan identifies is that between §6 of the Commission Order, which permits exclusion of the accused from proceedings and denial of his access to evidence in certain circumstances, and the UCMJ's requirement that "[a]ll . . . proceedings" other than votes and deliberations by courts-martial "shall be made a part of the record and shall be in the presence of the accused." Hamdan also observes that the Commission Order dispenses with virtually all evidentiary rules applicable in courts-martial. . . . . . . [W]e conclude that the "practicability" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. . . . Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. . . . Without for one moment underestimating [the danger posed by international terrorism], it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial. . . . Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b). VI D i-iii The procedures adopted to try Hamdan also violate the Geneva Conventions. . . . The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties." Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a "High Contracting Party"--i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan. We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by . . . detention." One such provision prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.". . . Common Article 3, then, is applicable here and . . . requires that Hamdan be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.". . The commentary accompanying a provision of the Fourth Geneva Convention . . . defines " 'regularly constituted' " tribunals to include "ordinary military courts" and "definitely exclud[e] all special tribunals.". . . VI D iv Inextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal and whether they afford "all the judicial guarantees which are recognized as indispensable by civilized peoples.". . . We agree with Justice Kennedy that the procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by any "evident practical need," and for that reason, at least, fail to afford the requisite guarantees. We add only that various provisions of Commission Order No. 1 dispense with the principles . . . indisputably part of the customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. That the Government has a compelling interest in denying Hamdan access to certain sensitive information is not doubted. But, at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him. VI D v Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements. VII We have assumed, as we must, that the allegations made in the Government's charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge--viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings. It is so ordered. JUSTICE BREYER, WITH WHOM JUSTICE KENNEDY, JUSTICE SOUTER, AND JUSTICE GINSBURG JOIN, CONCURRING. The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check." Cf. Hamdi v. Rumsfeld (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine--through democratic means--how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same. JUSTICE KENNEDY, WITH WHOM JUSTICE SOUTER, JUSTICE GINSBURG, AND JUSTICE BREYER JOIN . . ., CONCURRING IN PART. Military Commission Order No. 1, which governs the military commission established to try petitioner Salim Hamdan for war crimes, exceeds limits that certain statutes, duly enacted by Congress, have placed on the President's authority to convene military courts. This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President's authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment. These principles seem vindicated here, for a case that may be of extraordinary importance is resolved by ordinary rules. The rules of most relevance here are those pertaining to the authority of Congress and the interpretation of its enactments. JUSTICE SCALIA, WITH WHOM JUSTICE THOMAS AND JUSTICE ALITO JOIN, DISSENTING. On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised JUSTICE THOMAS, WITH WHOM JUSTICE SCALIA JOINS, AND WITH WHOM JUSTICE ALITO JOINS . . . , DISSENTING. For the reasons set forth in Justice Scalia's dissent, it is clear that this Court lacks jurisdiction to entertain petitioner's claims. The Court having concluded otherwise, it is appropriate to respond to the Court's resolution of the merits of petitioner's claims because its opinion openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs. The Court's evident belief that it is qualified to pass on the "[m]ilitary necessity," of the Commander in Chief's decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered. I respectfully dissent. . . . Ultimately, the plurality's determination that Hamdan has not been charged with an offense triable before a military commission rests not upon any historical example or authority, but upon the plurality's raw judgment of the "inability on the Executive's part here to satisfy the most basic precondition . . . for establishment of military commissions: military necessity." This judgment starkly confirms that the plurality has appointed itself the ultimate arbiter of what is quintessentially a policy and military judgment, namely, the appropriate military measures to take against those who "aided the terrorist attacks that occurred on September 11, 2001." The plurality's suggestion that Hamdan's commission is illegitimate because it is not dispensing swift justice on the battlefield is unsupportable. Even a cursory review of the authorities confirms that law-of-war military commissions have wide-ranging jurisdiction to try offenses against the law of war in exigent and nonexigent circumstances alike. See, e.g., Winthrop [ Military Law and Precedents, 1920]; see also [ In re] Yamashita [1946] (military commission trial after the cessation of hostilities in the Philippines); [ Ex parte] Quirin [1942] (military commission trial in Washington, D. C.). Traditionally, retributive justice for heinous war crimes is as much a "military necessity" as the "demands" of "military efficiency" touted by the plurality, and swift military retribution is precisely what Congress authorized the President to impose on the September 11 attackers in the AUMF. Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11--even if their plots are advanced to the very brink of fulfillment--our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists "redhanded" in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President's ability to confront and defeat a new and deadly enemy. After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case and after seeing them disregard the clear prudential counsel that they abstain in these circumstances from using equitable powers, it is no surprise to see them go on to overrule one after another of the President's judgments pertaining to the conduct of an ongoing war. . . . The plurality's willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous. JUSTICE ALITO, WITH WHOM JUSTICES SCALIA AND THOMAS JOIN . . ., DISSENTING. In order to determine whether a court has been properly appointed, set up, or established, it is necessary to refer to a body of law that governs such matters. I interpret Common Article 3 [of the Geneva Conventions] as looking to the domestic law of the appointing country because I am not aware of any international law standard regarding the way in which such a court must be appointed, set up, or established, and because different countries with different government structures handle this matter differently. Accordingly, "a regularly constituted court" is a court that has been appointed, set up, or established in accordance with the domestic law of the appointing country. . . . . . . I believe that Common Article 3 is satisfied here because the military commissions (1) qualify as courts, (2) that were appointed and established in accordance with domestic law, and (3) any procedural improprieties that might occur in particular cases can be reviewed. . . . . . . Whatever else may be said about the system that was created by Military Commission Order No. 1 and augmented by the Detainee Treatment Act this system--which features formal trial procedures, multiple levels of administrative review, and the opportunity for review by a United States Court of Appeals and by this Court--does not dispense "summary justice."

South Carolina v. Katzenbach (1966)

Facts: The Voting Rights Act of 1965 contained provisions attempting to prevent racial discrimination in the voting process by offering remedies against such unjust practices as requiring literacy or "good moral character" in order to vote. Issue: May Congress pass laws to carry out the provisions of constitutional amendments or to exercise congressional powers? Rule: (Warren, C.J.) Congress may constitutionally enact statutes that validly enforce a constitutional amendment or that are "necessary and proper" for carrying out enumerated or implied powers. Concurrence/ Dissent: (Black, J.) It is doubtful that this suit presents a justiciable case or controversy. In addition, at least one of the Act's provisions unjustly blurs the constitutional distinction between state and federal power by requiring federal approval of certain states' laws and constitutional amendments.

Thomas' Dissent, U.S. Term Limits, Inc. v. Thornton (1995)

Justice Clarence Thomas's forceful dissent argued in support of the constitutional and political wisdom of Amendment 73. Thomas noted that more than 60 percent of the voters in Arkansas had approved the ballot initiative and that it had passed in every congressional district. By failing to accept the Arkansas measure, the Court had, according to Thomas, misrepresented the nature of the federal union. That union, he declared, was based on the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole. Thomas's opinion served as a dramatic reminder of how the conservative members of the Court wanted to rewrite the script of modern constitutional law by resurrecting the idea that the states were the authentic organs of democratic government. Since the Constitution had not specifically enumerated the powers of the federal government to set qualifications, then the power to do so was specifically reserved under the Tenth Amendment to the states. Read more: http://www.answers.com/topic/u-s-term-limits-inc-v-thornton#ixzz2giG97Tvn

United States v. Curtiss-Wright Export Corp. (1936)

1. United States v. Curtiss-Wright Export Corp., (1936) 2. Facts: Congress passed a joint resolution authorizing the President to embargo Bolivia and Paraguay who were fighting in Chaco. Curtiss-Wright was indicted for conspiracy to violate the embargo. 3. Procedural Posture: Curtiss-Wright challenged the resolution as being an unconstitutional delegation of legislative power to the President. The lower court sustained the challenge. 4. Issue: Whether the resolution is unconstitutional as a delegation of legislative power to the President. 5. Holding: No. 6. Reasoning: The resolution may have been unconstitutional if it related solely to internal domestic powers, where the President's power is more constitutionally limited. However, the origin and nature of the President's domestic and foreign powers is very different. The President's foreign power is not dependent solely upon the affirmative grants of the constitution. The President has the power to negotiate treaties, and is the representative of the U.S. in international relations. He is in a better position than Congress to handle foreign affairs because he is privy to classified information. Thus, it is unwise to narrowly limit the President's foreign power. 7. Notes: The War Powers resolution of 1973 now provides that Congress shall be consulted beforehand "in every possible instance" when the President is introducing troops into situations where hostilities are imminent. Afterwards, he must report within 48 hours the reasons and constitutional or statutory basis for his action, and any other information that Congress may request. Also, he must continue to consult with the Congress on a periodic basis. Then, if Congress does not declare war, or otherwise granted statutory power, the President must remove the troops within 60 days, or immediately if directed by Congress.

Stewardship Theory

A constitutional interpretation holding that in the course of pursuing the common good the president may exercise the powers listed in Article II as well as all other powers not prohibited to him by the Constitution or Congress. (p. 194)

Enemy Combatant

A person who has planned, authorized, committed, or aided terrorist attacks or harbored such person. Was used after the September 11 attacks by the George W. Bush administration to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror.

Flast v. Cohen (1968)

Case Summary A federal court ruled that Flast and the other plaintiffs did not have standing as taxpayers to challenge the use of federal funds for religious schools. "Standing" is a legal requirement under which a person can only file suit if he or she has a personal stake in the outcome of the case. The plaintiffs then appealed to the Supreme Court. The Court's Decision In an 8-1 decision, the Supreme Court held that the taxpayers who brought suit to challenge the constitutionality of federal taxing and spending programs do have the necessary legal standing to obtain federal court review. Chief Justice Earl Warren wrote for the majority, citing the earlier case of Frothingham v. Mellon, 1923. In that case, Warren wrote, "this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute.... In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment." Chief Justice Warren noted that, in contrast to Frothingham, the current case of Flast was about a violation of the Establishment Clause of the First Amendment, which prohibits any government action leading to the "establishment of religion." The Court concluded that the plaintiffs were appropriate plaintiffs because they had sufficient personal interest in preventing the use of their tax money for this purpose. Justice John Harlan dissented. He argued that a taxpayer may refuse to pay a tax or may sue for return of a tax wrongfully collected, but may not sue to "challenge the constitutionality of the uses for which Congress has authorized the expenditure of public funds." More on the Case The Supreme Court revisited the issues in Flast in 1982, when the Court decided Valley Forge College v. Americans United for Separation of Church and State. Congress had authorized the Secretary of Health, Education, and Welfare (HEW) to dispose of federal "surplus property." HEW transferred a former military hospital to a church-related college. Americans United and several individuals brought suit in federal court, claiming that the transfer violated the Establishment Clause and made unconstitutional use of their tax dollars. In a 5-4 decision, the Supreme Court ruled that these plaintiffs did not have standing to sue. Justice William Rehnquist noted that the plaintiffs objected to a decision by HEW and not an action by Congress, and that they alleged no concrete personal injury. In his dissent, Justice William Brennan wrote that "It may be that Congress can tax for almost any reason, or for no reason at all. There is, so far as I have been able to discern, but one constitutionally imposed limit on that authority. Congress cannot use tax money to support a church, or to encourage religion." Justice Brennan argued that there is no practical way for a taxpayer to challenge an unconstitutional expenditure when the tax is collected. "Surely, then, a taxpayer must have standing at the time that he learns of the Government's alleged Establishment Clause violation to seek equitable relief in order to halt the continuing and intolerable burden on his pocketbook, his conscience, and his constitutional rights."

Marbury v. Madison (1803)

Summary of Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803). Facts On his last day in office, President John Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office. The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adams's term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adams's term. William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jefferson's Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus "...to any courts appointed, or persons holding office, under the authority of the United States." Issues Does Marbury have a right to the commission? Does the law grant Marbury a remedy? Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? Can Congress expand the scope of the Supreme Court's original jurisdiction beyond what is specified in Article III of the Constitution? Does the Supreme Court have original jurisdiction to issue writs of mandamus? Holding and Rule (Marshall) Yes. Marbury has a right to the commission. The order granting the commission takes effect when the Executive's constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by President Adams. Yes. The law grants Marbury a remedy.The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. No. Congress cannot expand the scope of the Supreme Court's original jurisdiction beyond what is specified in Article III of the Constitution. The Constitution states that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction." If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. No. The Supreme Court does not have original jurisdiction to issue writs of mandamus. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction. Disposition Application for writ of mandamus denied. Marbury doesn't get the commission. See Ex Parte McCardle for a constitutional law case brief holding that that the Constitution gives Congress the express power to make exceptions to the Supreme Court's appellate jurisdiction.