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After Hamdan: Reclaiming Congressional War Power

Steve Vladeck, Professor at the University of Miami School of Law has these thoughts on today’s decision:

I should interpose a caveat from the outset: Although I played a small but recurring role on the legal team for the Petitioner in Hamdan, what follows are my own personal thoughts, and do not in any way represent the position or views of Hamdan or his counsel. This is just me, out on a limb.

With that out of the way, and with my thanks to Tom, Amy, Karl Blanke, and the rest of the SCOTUSBlog crew for the invitation, let me say off the top that what was perhaps the most surprising aspect for me of this morning’s decision in Hamdan is that I wasn’t surprised. Even without the various tea-leaf-reading that has gone on this week, I think anyone who went (or listened) to the argument in the case would have easily predicted the jurisdictional result (on which I hope to have some more to say later), and, if pushed, would probably have guessed the likely result on the merits, as well.

Which is not to say, by any stretch, that there’s nothing of note here. Quite to the contrary. There is every reason to see Hamdan for what it is — an immensely significant reassertion of checks and balances in the war on terrorism, and an unmitigated victory for those who have worried about the erosion of the separation of powers after September 11.

Specifically: Marty Lederman, on this site, and Jack Balkin, over at his eponymous blog, have already sketched out the significance of the Court’s discussion of Common Article 3 of the 1949 Geneva Conventions, and I think they’re both entirely right, and even undersell the ramifications of their analysis. Once Common Article 3 applies to the conflict with al Qaeda, the legal framework within which we analyze the various interrogation and torture allegations changes dramatically, as does the broader issue of the applicability and enforceability of the Geneva Conventions in U.S. courts, and the potential liability of various U.S. officials under the War Crimes Act of 1996, 18 U.S.C. § 2441, for grave violations thereof. Before reading any of what follows, I encourage you to read both of their cogent commentaries. International law has certainly had worse days in the Supreme Court (e.g., yesterday).

But there’s another entirely domestic theme that serves as a powerful undercurrent to Justice Stevens’s decision for the majority (on this point, Justice Kennedy’s concurrence is absolutely unequivocal): the constitutional role for Congress vis-à-vis the war powers. Over at his blog, Orin Kerr has his own preliminary thoughts, to which I’d add the following:

One of the great unanswered questions in the field of constitutional law has always been the extent to which Congress may intrude into/impinge upon/interfere with the President’s war powers. Put another way, to what extent may Congress legislate restrictions on powers the President would otherwise be able to exercise during wartime? Can Congress place geographical or temporal limitations on the scope of a war? Can Congress impose manpower limitations? Can Congress require the troops to adhere to certain standards of humanitarian conduct?

Proponents of a broad executive war power have consistently and vehemently argued that the answer to all of these questions is a resounding “no” — that Congress cannot interfere in any way with the President’s constitutional responsibilities as “Commander in Chief,” and that any such limitation is unconstitutional. We’ve seen variations on this theme in the government’s arguments in the enemy combatant cases, the FISA debate, Snoopgate, etc. In contrast, opponents of such a broad view of presidential power, often relying on the Supreme Court’s routinely overlooked and misunderstood 1804 decision in the wonderfully named “Case of the Flying Fish,” known to the U.S. Reports as Little v. Barreme, emphasize that the Supreme Court has long, if infrequently, recognized Congress’s coordinate role in defining the scope of the war powers. There, because Congress only authorized the interception of vessels in one direction, the Court rejected the government’s authority to act contrariwise.

I’m vastly oversimplifying a complex series of debates, but I think it is safe to say that opponents of a broad, unilateral executive war power received a powerful charge from the majority opinion in Hamdan, which, for the most part implicitly, concludes that the President cannot independently create military commissions such as those at issue here where Congress has itself acted. That is, the crux of the Court’s decision is that Congress hasn’t approved the commissions here at issue, with the mostly unspoken assumption that Congress can so approve, and, indeed, has to, at least where it’s done something. Footnote 23 is one of the only places where the Court makes this point explicit, citing Youngstown for the proposition that, “Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” I see this as one of the more important passages in the 177 pages and six opinions produced today, even with the ensuing caveat that “the government did not argue otherwise.”

Don’t get me wrong: I do not mean to take this statement for more than it is worth. To be sure, the Court expressly reserves whether, absent congressional action, the President could nevertheless do exactly what he has done here. And I’ve written elsewhere about the statutory availability of various wide-ranging presidential emergency powers in situations where the country truly faces an immediate crisis. But make no mistake—this decision has the chance to become an important revival of the “lowest ebb” category of presidential power from Justice Jackson’s tripartite test in Youngstown, for the Court assumes a point that is not necessarily obvious—that Congress can constitutionally interpose limitations on the President’s war powers. It says something of itself that this point has been called into question in the half-century since Youngstown, but perhaps no longer. Justice Kennedy put it best in the opening stanzas of his concurrence:

“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 along 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.”

Consider, by way of comparison, the statutes at the heart of the U.S.-citizen enemy combatant cases and the FISA/warrantless surveillance debate, respectively: 18 U.S.C. § 4001(a), and 50 U.S.C. § 1811. Section 4001(a) provides that “[n]o citizen shall be detained or otherwise imprisoned except pursuant to an Act of Congress,” and § 1811 provides that “[n]otwithstanding any other law, the President . . . may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” Both statutes are legislative assertions of restrictions on the war power. In the case of detention, the statute requires some congressional authorization; in the case of FISA, the statute authorizes warrantless surveillance for only 15 days. There is a lot of shorthand here, but the gist is pretty straightforward: Congress, in each case, has placed a limit on what the President can do without legislative approval.

With respect to both statutes, the government has argued that, to the extent they restrict the President’s war powers, they are unconstitutional. Needless to say, I think those arguments took a big hit today, for Hamdan clearly contemplates a role, if not a significant role, for Congress—for the people’s branch—to play in these cases. After Hamdan, arguments that Congress has no authority to legislate the war powers will be much weaker than they were yesterday, and much of the debate will return, I think properly, to what the government as a whole should do in each of the terrorism cases, and not what the President should do unilaterally.

But irrespective of Hamdan’s significance for these other cases, there is a broader reassertion of coordinacy here. The entire premise of the majority opinion is that the President, even during wartime, cannot so quickly and unhesitatingly resort to unilateralism. Emergencies, as Justice Breyer reminds us in his concurrence, may present a different situation, but that’s hardly the issue in Hamdan, nor has it been a major part of any of the other significant post-9/11 legal challenges. After all, it’s been almost five years…

I’ll hopefully have some more to say later about the Court’s jurisdictional analysis (and Justice Scalia’s intemperate dissent therefrom). Indeed, as much as the above concerns Hamdan’s implications for the separation of powers between Congress and the President, there is at least as much to say with respect to its significance vis-à-vis the separation of powers between Congress and the courts. But that’s for later. For now, I wanted to start with this point, because I suspect that it is this holding for which Hamdan might become best remembered. The analogy is imperfect, but only slightly: We have our modern Youngstown.