Reading the Cases Together

Reading the Cases Together

The decisions in this chapter can be studied one at a time, but they teach the most when they are set on a single scale, and the scale is the one Justice Jackson built in Youngstown: presidential power rises and falls with Congress's position on the subject. That reading explains a pattern the opinions never announce about themselves. A President who invokes the commander-in-chief title does well in court when Congress has authorized the action, does badly when Congress has legislated against it, and does uncertainly when Congress has said nothing. The reason is structural. When both political branches act together, the only question left is whether the national government as a whole holds the power, and courts defer most readily there because both democratic branches have made the decision.¹ When the President acts alone or against a statute, the branches are in conflict, and the Supreme Court has historically shown much greater willingness to review the exercise of war powers.²

Placed on that scale, each decision in the chapter falls in a recognizable spot:

• Youngstown sits in the third category: Congress had refused seizure as a labor-dispute remedy and covered the subject with statutory policies inconsistent with the order, so the seizure could stand only if the subject lay beyond Congress's control.³
• Hamdan under the executive order sits in the third category: the commission ran against the conditions and procedural limits Congress had set, and Justice Kennedy placed the case at the lowest ebb of presidential power.⁴
• Hamdan after the Military Commissions Act sits in the first category: Congress expressly authorized procedures similar to those the Court had held unlawful, which raised the President to the maximum of Article II authority.⁵
• Hamdi sits in the first category: the AUMF authorized holding a citizen who fought with the Taliban, so the detention rested on congressional authorization and the inherent-power question never had to be answered.⁶
• Quirin sits in the first category: in the Court's view Congress had authorized trial of law-of-war offenses before military commissions, so the Court did not decide how far the President could create them alone.⁷
• Perpich sits in the first category: Congress, using its powers to raise armies and the Militia Clauses, decided that Guard members may be ordered into federal service for training abroad over a governor's objection, which fixes when presidential command of the militia begins.⁸
• Boumediene is a joint act that still failed: the Detainee Treatment Act and the Military Commissions Act reflected the judgment of both political branches, and the withdrawal of habeas could not stand without an adequate substitute.⁹

Two comparisons show which fact does the work. Hamdan supplies the cleanest one, because commission procedures of the same general kind received opposite treatment once Congress's position changed. Created by executive order against the limits Congress had set, the commission lacked power to proceed; after Congress, at the President's urging, authorized similar procedures, no court has held the Guantanamo commissions wholly unlawful, and they remain in operation.¹⁰ The Government's interest in trying detainees by commission was the same on both sides of that change. What moved was the statute, and with it the President's category. The second comparison pairs Youngstown with Hamdi. In each the President invoked the demands of a war against private persons, in one case by seizing an industry and in the other by holding a citizen. The seizure failed because Congress had considered the method, refused it, and legislated a different one, while the detention succeeded because Congress had authorized the use of force against the Taliban, of which detention is an incident.¹¹

Boumediene shows what the scale leaves out. Jackson's categories describe how power is divided between the President and Congress, and they say nothing about rights that neither branch may remove. The detention scheme in Boumediene was the product of both branches: the Detainee Treatment Act limited review of tribunal determinations to the D.C. Circuit and barred habeas petitions, and after Hamdan Congress, at the President's request, reasserted that bar in the Military Commissions Act.¹² The President was acting with Congress behind him, which is the position of greatest strength, and the detainees prevailed anyway, because the Suspension Clause limits what the two branches may do together and the review procedures lacked what an adequate substitute for habeas requires.¹³ A court that strikes down an action backed by both branches declares the power missing from the government altogether, so it does so only on the strength of a specific constitutional guarantee. The Court itself described the result as consistent with the Commander in Chief's powers, since their exercise is vindicated when confirmed by the judiciary.¹⁴ The same logic runs through Hamdi, where the AUMF supplied authority to detain a citizen and the Due Process Clause still required a hearing on the classification.¹⁵ Individuals, not the branches, are the usual challengers in these disputes, and a branch cannot waive a separation-of-powers violation for the others, because the limits exist to protect individual liberty.¹⁶

The second step is where students most often go wrong, because the same executive conduct can move from the third category to the first without any change in the facts on the ground. The third step guards against the opposite error of treating first-category placement as the end of the analysis.

One question stays open after all of these cases: whether Congress may constitutionally limit the commander's control of military operations. The decided cases leave it untouched because none involved a statute telling the forces how to fight. Youngstown concerned the domestic economy, Hamdi concerned detention, and Hamdan concerned the forum for trial, and in Hamdan the Court left unanswered whether the President holds independent power to convene commissions and held only that the President may not disregard limits Congress has set in the proper exercise of its own war powers.¹⁸

The arguments for an exclusive presidential sphere are real. Chief Justice Chase suggested in his Milligan concurrence that Congress may not interfere with the command of the forces and the conduct of campaigns, and a 2002 Office of Legal Counsel opinion took the position that Congress lacks authority to set the terms and conditions under which the President controls the conduct of operations in war, a position it stretched to interrogation, surveillance, detention, and trial before it was withdrawn.¹⁹ The arguments on the other side rest on the text. Congress holds the powers to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the forces, and Jackson observed that those rules may reach even command functions to some unknown extent.²⁰ Congress also controls the structure, organization, and broad policies of the military departments.²¹ When the Youngstown majority asked whether the Vesting, Take Care, or Commander in Chief Clauses gave the President exclusive authority over the seizure, it found none.²² That finding concerned a domestic seizure, so it leaves the battlefield question where it was.

The question matters analytically because of what a President would have to show. A President who defied a statute governing operations would stand in the third category and could prevail only by establishing a power so conclusive and preclusive that it disables Congress from acting on the subject, a claim Jackson said must be scrutinized with caution.²³ Courts have had little occasion to test that claim, because disputes of this kind are often treated as nonjusticiable or never reach a court at all.²⁴

An answer on this subject should therefore present both positions and then say which facts push toward each: how close the statute comes to decisions made in the field, whether Congress acted through funding or rules for the forces, and whether the subject is one, like trial forums, detention, or domestic property, on which decided cases already recognize congressional power. The answer should never announce a holding that no court has issued.