The Federal Executive Power, Part II: Foreign Affairs, War, and Immigration

United States v. Curtiss-Wright Export Corp.

299 U.S. 304 (1936) · Westlaw

Congress passed a Joint Resolution letting the President embargo arms sales to Bolivia and Paraguay if he found it would help end the Chaco War. He so found. Curtiss-Wright was indicted for selling machine guns to Bolivia anyway, and argued the Resolution was an unconstitutional delegation. The Court sustained the delegation and reversed the quashing of the indictment. That is the holding, and it is a nondelegation holding. Everything this case is famous for is dictum around it.

The move that makes the case. Sutherland separates two constitutional worlds at 299 U.S. at 315: “It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted.” Then the consequence, at 315–316: “The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.”

Stop on that sentence. It says the enumeration — the organising premise of everything you did in Modules 2 through 4 — is “categorically true” only inside the water’s edge. If that is right, the external power does not come from Article I at all; it descends, on Sutherland’s history, from the Crown to the Union directly. If it is wrong, the whole architecture of the opinion falls and only the delegation holding survives.

The sentence everyone quotes, at 319: “In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’”

Read what that passage is about. It is about negotiation and communication — who speaks for the nation. Marshall, then a Congressman, was defending an extradition, not describing a reservoir of unilateral power. The Court is quoting a speech.

The phrase actually litigated, at 319–320, is the next one, and note how it is qualified in its own sentence: the President’s power is “very delicate, plenary and exclusive… as the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.”

What is commonly said about this case and is not in it. That it held the President has plenary inherent foreign-affairs power independent of Congress. It held nothing of the kind. The defendant was convicted under an Act of Congress; the question was whether Congress could delegate that broadly; the answer was yes, more broadly abroad than at home. When you see the Solicitor General cite Curtiss-Wright, check whether the President in that case is acting with Congress or against it. Here he was acting with it.

A reporter note. No numerical vote is printed. What the Reports print is this: “Mr. Justice McReynolds does not agree. He is of opinion that the court below reached the right conclusion and its judgment ought to be affirmed,” and “Mr. Justice Stone took no part in the consideration or decision of this case.” McReynolds wrote no dissent. The familiar 7–1 comes from the Supreme Court Database, not from the reporter — derive the arithmetic, do not quote a tally.

Three questions. First, is Sutherland’s history right? The claim that sovereignty over external affairs passed from the Crown to the Union rather than through the States has been contested by historians since it was written; and if the history is wrong, is there anything left of the external/internal distinction? Second, if the enumeration really is “categorically true only in respect of our internal affairs,” what limits federal power abroad — and is your answer a limit a court could enforce? Third, keep this case in your hand for two slides’ time: Zivotofsky will tell you exactly what the sole-organ passage is worth, and the answer is not nothing, but it is much less than the Executive has claimed from it for ninety years.

Missouri v. Holland

252 U.S. 416 (1920) · Westlaw

Congress had twice tried to regulate the killing of migratory birds and twice been held to lack the power. Then the United States made a treaty with Great Britain, Congress passed the Migratory Bird Treaty Act to implement it, and Missouri sued, arguing that what Congress could not do alone it could not do by treaty either. Holmes, for the Court, said the premise was wrong. Decree affirmed.

Why the Tenth Amendment does not answer it, at 252 U.S. at 432: “To answer this question it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article II, § 2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land.”

Note the textual asymmetry Holmes is exploiting and make sure the class sees it. Article VI says federal statutes are supreme when “made in Pursuance” of the Constitution, but treaties are supreme when “made under the Authority of the United States.” Holmes does not rest the case on that difference, but it is sitting there, and it is why the treaty power has always been argued to run wider than the legislative power.

The famous passage, at 433: “when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

Read it in context, because it is not a manifesto. Two sentences earlier Holmes writes that he is “not yet discussing the particular case before us but only… considering the validity of the test proposed.” He is rejecting a doctrinal test — that the treaty power reaches no further than Article I — not announcing a theory of interpretation at large. It became the epigraph of living constitutionalism afterwards, and it has been doing that work ever since; but that is what the passage was made into, not what it was.

The sentence that does the real work, at 433–434: “The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved.”

And the limit Holmes expressly preserves, at 433, which almost nobody quotes: “We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way.” So the holding is not that the treaty power is unbounded. It is that its bounds are not found by asking what Congress could have done without a treaty.

The holding, at 435: “Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power… We are of opinion that the treaty and statute must be upheld.”

A reporter note. No numerical vote and no dissenting opinion. The Reports print one line: “Mr. Justice Van Devanter and Mr. Justice Pitney dissent.” Nothing more. The familiar 7–2 is Supreme Court Database arithmetic.

Two questions, and the second is the one worth the time. First, if the treaty power can reach subjects Article I cannot, what stops two Presidents and sixty-seven Senators from legislating on any domestic subject they like by agreeing with a foreign country to do it? Holmes says there are qualifications but does not name them; name one that a court could apply. Second, Medellín is four cases from here and it supplies half an answer — a treaty that is not self-executing is not domestic law at all, whatever it obliges the United States to do internationally. Ask yourself whether that answer makes Holland smaller than it looks, or whether it just moves the question to the ratification stage.

Dames & Moore v. Regan

453 U.S. 654 (1981) · Westlaw

To end the Iran hostage crisis the Executive agreed to nullify attachments on Iranian assets, transfer the assets, and suspend claims pending in American courts in favour of a Claims Tribunal. Dames & Moore had a judgment against Iran and did not want it suspended. The Court upheld the whole arrangement, and did it in eight days. Argued June 24, 1981; decided July 2; the mandate ordered to issue forthwith.

Rehnquist starts by refusing Curtiss-Wright, at 453 U.S. at 661–662, and this is the first thing to notice: the Government led with the sole-organ language and the Court walked past it, turning instead to “Justice Jackson in his concurring opinion in Youngstown… which both parties agree brings together as much combination of analysis and common sense as there is in this area,” and which “focused not on the ‘plenary and exclusive power of the President’ but rather responded to a claim of virtually unlimited powers for the Executive.” A concurrence has become the framework and the majority opinion in Youngstown has not.

Then he loosens the framework he just adopted, at 669: “Although we have in the past found and do today find Justice Jackson’s classification of executive actions into three general categories analytically useful, we should be mindful of Justice Holmes’ admonition… that ‘[t]he great ordinances of the Constitution do not establish and divide fields of black and white.’ … Justice Jackson himself recognized that his three categories represented ‘a somewhat over-simplified grouping,’ 343 U. S., at 635, and it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition.”

That is the sentence that changes the doctrine. Jackson built three boxes precisely so a court would have to say which one it was in. Rehnquist replaces the boxes with a spectrum. Ask what a spectrum costs: category three exists to tell the Executive when it is at its “lowest ebb,” and a spectrum has no ebb, only a slope.

The two halves of the holding, and keep them apart. On the attachments, the Court found statutory authority in IEEPA. On the suspension of claims, it did not — and said so. The authority there comes from inference, at 678–679: “Such failure of Congress specifically to delegate authority does not, ‘especially… in the areas of foreign policy and national security,’ imply ‘congressional disapproval’ of action taken by the Executive… At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President.”

And the limit built into it, at 686: “Past practice does not, by itself, create power, but ‘long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent.’” Congressional silence has become congressional consent, subject to a presumption. Decide whether that is realistic about how Congress works or a polite fiction that converts inaction into authorisation.

The disclaimer, at 661: “We attempt to lay down no general ‘guidelines’ covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case.” Every Executive brief since has cited the case anyway, which is the standard fate of such sentences.

A reporter note, and this one matters. No numerical vote is printed, and the “8–1” you will see quoted is actively misleading. The Reports print: “REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined; in all but n. 6 of which POWELL, J., joined; and in all but Part V of which STEVENS, J., joined.” Powell dissented from a footnote about takings. Nobody dissented from the judgment.

Three questions. First, if a spectrum replaces the categories, what does a litigant now have to prove to establish that the President is in Jackson’s third category at all? Second, the case was decided in eight days under enormous pressure to ratify a deal already struck. Is that a reason to discount it as precedent, or is the speed itself part of what “acquiescence” reasoning is for? Third, hold this against Medellín, two cases on, where the same Court refuses a President who tried to give a treaty domestic effect by memorandum — and ask what distinguishes the two.

Zivotofsky v. Kerry

576 U.S. 1 (2015) · Westlaw

Congress passed a statute letting an American citizen born in Jerusalem have “Israel” recorded as the place of birth on a passport. Every administration since 1948 had refused to recognise any sovereign over Jerusalem, and the Secretary refused to apply the statute. The Court held § 214(d) unconstitutional — the first time it has ever sustained a President’s direct defiance of an Act of Congress in foreign affairs, as the Chief Justice points out in the opening line of his dissent.

A note on pin cites before you read. The bound volume for 576 U.S. was not reachable from any free source when this reading was prepared, so the pins below are to 135 S. Ct. and to slip-opinion pages, not to U.S. Reports. No 576 U.S. ___ pin is given here, because a plausible-looking one would be a guessed one. If you are pinning this case in written work, go to the reporter, Westlaw or Lexis.

The holding, 135 S. Ct. at 2090 (slip op., at 19): “judicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations… Congress cannot require him to contradict his own statement regarding a determination of formal recognition.”

Now the part this module is really assigned for. The Secretary led with Curtiss-Wright. Kennedy, at 2089 (slip op., at 17): “In support of his submission that the President has broad, undefined powers over foreign affairs, the Secretary quotes United States v. Curtiss-Wright Export Corp., which described the President as ‘the sole organ of the federal government in the field of international relations.’ 299 U. S., at 320. This Court declines to acknowledge that unbounded power. A formulation broader than the rule that the President alone determines what nations to formally recognize as legitimate… presents different issues and is unnecessary to the resolution of this case.”

And then the demotion, at 2090 (slip op., at 18): “This description of the President’s exclusive power was not necessary to the holding of Curtiss-Wright — which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination. Indeed, Curtiss-Wright did not hold that the President is free from Congress’ lawmaking power in the field of international relations. The President does have a unique role in communicating with foreign governments, as then-Congressman John Marshall acknowledged… But whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.”

Say precisely what has happened here. Curtiss-Wright is not overruled. Its delegation holding stands. What is taken away is the use the Executive had been making of it for seventy-nine years: the sole-organ passage is dictum, it concerns communication, and it does not describe unbounded power. And the counterweight, same page: “It is not for the President alone to determine the whole content of the Nation’s foreign policy.”

The dissent is worth as much as the majority. Roberts, C. J., slip op. at 1: “Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs. We have instead stressed that the President’s power reaches ‘its lowest ebb’ when he contravenes the express will of Congress, ‘for what is at stake is the equilibrium established by our constitutional system.’” And at slip op. 6, on the Government’s litigating habit: “The expansive language in Curtiss-Wright casting the President as the ‘sole organ’ of the Nation in foreign affairs certainly has attraction for members of the Executive Branch. The Solicitor General invokes the case no fewer than ten times in his brief… But our precedents have never accepted such a sweeping understanding of executive power.”

A reporter note. No numerical vote is printed, and “6–3” flattens the case. The Reports print: “KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part. ROBERTS, C. J., filed a dissenting opinion, in which ALITO, J., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.” Thomas splits, so the bench divides differently on different parts.

Two questions. First, this is a category-three case on Jackson’s own terms — the President acting against the express will of Congress — and the President wins. What has to be true of a presidential power for it to survive category three? Kennedy’s answer is exclusivity: recognition is the President’s alone, so Congress cannot legislate on it at all. Test that answer against the pardon power, the veto, and the appointment of ambassadors, and ask how large the exclusive set really is. Second, if the sole-organ passage is dictum about communication, what is left of Curtiss-Wright for an Executive lawyer to use? Read the two cases together and write the one sentence you would put in a brief.

Medellín v. Texas

552 U.S. 491 (2008) · Westlaw

The International Court of Justice held in Avena that the United States had violated the Vienna Convention by failing to give consular notice to fifty-one Mexican nationals on death row, and that their convictions must be reviewed. President Bush then issued a memorandum directing state courts to give effect to Avena. Texas refused. The Court held that neither the judgment nor the memorandum is directly enforceable federal law, at 552 U.S. at 498–499, and affirmed.

The rule, and it is old, at 504–505, resting on Marshall in Foster v. Neilson: a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision”; but “[w]hen… [treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” So: “while treaties ‘may comprise international commitments… they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be “self-executing” and is ratified on these terms.’”

The distinction to hold onto, because students collapse it every year. The Avena judgment binds the United States as a matter of international law. Nobody in the case denied that — Stevens, concurring in the judgment, says so flatly at 536. What it is not is domestic law enforceable in a Texas court. An obligation and a cause of action are different things, and this case is entirely about the second.

The limit the Court writes into its own holding, at 519, and it is routinely dropped: “We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments — only that the U. N. Charter, the Optional Protocol, and the ICJ Statute do not do so.” There is no general presumption against self-execution here. There is a reading of three particular instruments.

Then the executive-power half, and this is why the case sits in a foreign-affairs module rather than a treaties one. At 525–526: “The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.”

And the Jackson placement, at 527, which is the sentence to put on the board: “When the President asserts the power to ‘enforce’ a non-self-executing treaty by unilaterally creating domestic law, he acts in conflict with the implicit understanding of the ratifying Senate. His assertion of authority, insofar as it is based on the pertinent non-self-executing treaties, is therefore within Justice Jackson’s third category, not the first or even the second.”

Compare that to Dames & Moore, two cases back. Same framework, same Court in lineage, opposite result — and the difference is not the size of the power claimed but where Congress is found to stand. In Dames & Moore silence became acquiescence. Here the Senate’s understanding at ratification becomes an implicit prohibition. Ask what makes congressional silence read one way in 1981 and the other way in 2008.

The Take Care point, at 532: “The United States, however, does not rely upon the President’s responsibility to ‘take Care that the Laws be faithfully executed.’… We think this a wise concession. This authority allows the President to execute the laws, not make them.” Note that the Court calls the concession wise rather than deciding the question — so this is not a Take Care holding, whatever it is cited for.

The dissent’s best line. Breyer, J., at 549: “In a word, for present purposes, the absence or presence of language in a treaty about a provision’s self-execution proves nothing at all. At best the Court is hunting the snark. At worst it erects legalistic hurdles that can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.”

And Stevens, concurring in the judgment, at 536, on who is left holding the obligation: “One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that — by failing to provide consular notice in accordance with the Vienna Convention — ensnared the United States in the current controversy.”

A reporter note. No numerical vote is printed. The line-up: “Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed an opinion concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.”

Two questions. First, if the President cannot make a non-self-executing treaty enforceable and Congress has not acted, what actually happens to the United States’ obligation under Avena — and is “nothing” a constitutionally acceptable answer? Second, take Breyer’s charge seriously: is the self-execution inquiry a real interpretive question about what the treaty says, or a set of “legalistic hurdles” the Court applies when it does not want a treaty enforced? Test it by asking what language the Senate would have to see to make you say a treaty is self-executing.

Ex parte Milligan

71 U.S. (4 Wall.) 2 (1866)

Lambdin Milligan, a civilian citizen of Indiana, was tried by a military commission for conspiring against the United States, convicted, and sentenced to hang. Indiana’s civil courts were open the entire time. The Court held the commission had no jurisdiction. The orders discharging him had already been entered the previous Term; the opinions came eight months later.

The over-quoted passage, at 120–21: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”

The holding, at 127, which is narrower than that passage suggests: “Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”

And the sentence immediately before it, which is almost never quoted and which gives the rule its shape: “If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown… As necessity creates the rule, so it limits its duration.”

So Davis does not forbid martial law. He makes it conditional on the courts being actually closed and confines it to the theatre of operations. The rule is necessity-bounded, and the necessity is a fact a court can check. Put both sentences on the board together or the case will be remembered as more absolute than it is.

The law-of-war limit, at 121 — and mark this sentence, because Quirin will cabin exactly it seventy-six years from now: the laws and usages of war “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.”

Now the part students get backwards. This case was not unanimous in its reasoning. The Chief Justice filed a separate opinion, and the Reports do not label it — the heading at 132 reads simply “The CHIEF JUSTICE delivered the following opinion.” Chase opens, at 132: “Four members of the court, concurring with their brethren in the order heretofore made in this cause, but unable to concur in some important particulars with the opinion which has just been read, think it their duty to make a separate statement of their views of the whole case.” Wayne, Swayne and Miller joined him (at 142).

What Chase actually argued, at 137: “there are cases in which, the privilege of the writ being suspended, trial and punishment by military commission, in states where civil courts are open, may be authorized by Congress, as well as arrest and detention. We think that Congress had power, though not exercised, to authorize the military commission which was held in Indiana.” And at 140: “The fact that the Federal courts were open was regarded by Congress as a sufficient reason for not exercising the power; but that fact could not deprive Congress of the right to exercise it.”

That is a genuine disagreement about who decides. Davis says the open courts strip the power; Chase says the open courts are a reason Congress chose not to use a power it had. Four to five. If you want to know why the Executive has been able to build on Milligan in both directions ever since, it is because half the Court in Milligan did not agree with Milligan.

Three more things that are commonly believed and are not in the case. It was not unanimous except in the judgment. Chase did not dissent — he concurred in the order. And the Court did not vindicate Milligan: Davis writes at 130 that “although Milligan’s trial and conviction by a military commission was illegal, yet, if guilty of the crimes imputed to him… he deserved severe punishment,” calling the conspiracy “an enormous crime.”

A reporter note. No numerical vote appears anywhere. The five-four split on reasoning is arithmetic you construct from Chase’s phrase “Four members of the court” and the three names at 142.

Two questions. First, Davis’s test is factual — are the courts open? — and therefore administrable. Chase’s is institutional — did Congress authorise it? Which test would you rather a court apply during an actual emergency, and does your answer change depending on whether you expect the court to rule during the emergency or eight months after it, as happened here? Second, the release order came first and the reasoning came later, a sequence you will see again in Quirin with far worse consequences. Ask what a court owes the public when it announces a result before it can explain one.

Ex parte Quirin

317 U.S. 1 (1942) · Westlaw

Eight German saboteurs landed by submarine on Long Island and in Florida, buried their uniforms, and set out in civilian clothes with explosives and American currency. One, Haupt, claimed United States citizenship. Roosevelt ordered them tried by military commission. The Court upheld the commission’s jurisdiction and denied leave to file habeas petitions.

Read the four date lines at the head of the case before you read anything else. The Reports print them separately: “Argued July 29–30, 1942.” “Decided July 31, 1942.” “Per Curiam decision filed, July 31, 1942.” “Full Opinion filed, October 29, 1942.” Six of the eight men were executed on August 8, 1942 — a date that appears nowhere in the U.S. Reports and is given here from secondary sources, not the reporter. The reasoning was published roughly twelve weeks after the executions it justified. The per curiam itself concedes the sequence, at 18–19: the Court “now announces its decision and enters its judgment in each case, in advance of the preparation of a full opinion which necessarily will require a considerable period of time for its preparation.”

The holding, at 30–31: “By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”

What makes a belligerent unlawful here, at 37: “By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.” The uniform is doing the work. Not the plot, not the explosives — the discarded uniform.

The sentence that has had the longest afterlife, at 37–38: “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens 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 Hague Convention and the law of war.”

How Milligan is handled, at 45, and notice that it is not overruled but confined to its facts: “We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war… The Court’s opinion is inapplicable to the case presented by the present record.” Stone had already conceded, at 22, that Milligan denied “the right to proceed by military tribunal.” So the move is factual: Milligan was not with the enemy’s armed forces; Haupt was.

The self-limitation that is always dropped, at 45–46: “We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war.” Sixty-two years later Hamdi will be arguing about exactly those boundaries, with this case as the government’s principal authority.

Two things commonly believed that the opinion does not support. First, that Quirin rests on inherent Commander-in-Chief power. It does not — it rests on Article 15 of the Articles of War, Congress’s incorporation of the law of war. Second, and this is the over-read that matters for the next case, that Quirin authorises indefinite detention of citizens as enemy combatants. It holds that an unlawful belligerent may be tried by commission for a law-of-war offence. Detention without trial is a different question and this case does not answer it.

A reporter note. No numerical vote and no separate opinion — not a dissent, not a concurrence. The only notation is “MR. JUSTICE MURPHY took no part in the consideration or decision of these cases.”

Three questions. First, take the chronology seriously as a fact about adjudication, not a curiosity: what is a court doing when it enters judgment in a capital case and writes the reasons afterwards, and is there any version of that practice you would defend? Second, the citizenship sentence at 37–38 is stated without qualification, and Hamdi will lean on it hard. Does it follow from the uniform rationale, or is it an independent proposition smuggled in alongside it? Third, Milligan and Quirin both survive. State the rule that reconciles them in one sentence, then ask which side of it a citizen captured in Afghanistan falls on — which is the next case.

Boumediene v. Bush

553 U.S. 723 (2008) · Westlaw

Congress responded to the Court’s earlier Guantanamo decisions by stripping habeas jurisdiction and substituting review of Combatant Status Review Tribunal determinations in the D.C. Circuit. The Court held the Suspension Clause reaches Guantanamo and the substitute is inadequate. At 732–33: “We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005… that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus.”

The passage that states the stakes, at 765: “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.”

And the structural reason, at 765–66: “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.”

The test, at 766, and note that it is functional rather than formal — de jure sovereignty over Guantanamo is Cuba’s, and the Court refuses to let that settle anything: “at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”

The holding on the Clause, at 771: “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.”

What the majority concedes about deference, at 797, and it is more than students expect: “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… The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.” Then, on the same page, the counterweight: “Security subsists, too, in fidelity to freedom’s first principles… 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.”

Scalia’s dissent, at 827–28, and give students all four sentences rather than the one: “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 third sentence is the one that is always cut, and it concedes the entire structure of the argument — Scalia is not saying lives outweigh the writ; he is saying the writ is not at stake.

Roberts, dissenting, at 801, on what was struck down: “Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

And Souter, concurring, at 801, which is the answer to the charge of judicial triumphalism: “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.”

Four things commonly believed that the case does not hold. That Guantanamo detainees have full constitutional rights — the holding is confined to the Suspension Clause, and the Court never reaches Fifth Amendment due process. That the Court ordered releases — it reversed and remanded, at 798, and released nobody. That it specified what process is due — it pointedly did not, which is precisely Roberts’s complaint. And that it subordinated security to liberty — at 797 it says the opposite in terms.

A reporter note. No numerical vote is printed. The line-up: “Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.”

Two questions. First, the three-factor test is functional and therefore has no edge you can point to. Apply it to a black site in a country that has consented, to a detainee held by an allied government at American request, and to a citizen held abroad. If your answers differ, say what is doing the work — and if they do not, ask whether the test has any content. Second, the Court holds the DTA substitute inadequate but will not say what an adequate one looks like. Is that judicial minimalism or an abdication that leaves Congress guessing? Roberts thinks he knows. Decide whether he is right.