Double-Checking Executive Emergency Power: Lessons from Hamdi and Hamdan
Volume 80, No. 2, Summer 2007
By Mark C. Rahdert [PDF]

The Constitution is vague regarding how the respective powers of the various branches blend during national emergencies, such as war. It gives Congress the power to declare war, outfit the military, and set its rules of operation; it gives the President the power to command military forces; and it gives qualified protection for the jurisdiction of the courts. Nevertheless, it largely neglects to describe or specify what the effects of war or other pressing emergencies might be on either the exercise of other governmental powers or the distribution of constitutional authority among the branches. Article I authorizes Congress to suspend the writ of habeas corpus in certain circumstances, but other forms of emergency power, such as the authority to cancel or postpone elections, dissolve the legislature, fill gaps in presidential succession, declare martial law, dispense military justice, resort to preventive detention and internment, use extraordinary investigative measures, suspend civil liberties, close the courts, or take other similar measures associated with emergency circumstances, are omitted from the explicit terms of the Constitution. Such powers are left to the more fluid and open domains of implied authority and interbranch interaction that must be derived by extrapolation from the generalities of enumerated power and tempered by the lessons of experience.

Having lived through two wars fought in quick succession on American soil, the Framers were surely well aware of the potential for national emergencies that could interfere with the ordinary functions of civil government. Some had been members of Congress when it was forced to flee Philadelphia, then the de facto capital, under the guns of the advancing British army. Yet they chose to remain largely silent on what, if any, deviations from the normal practices of government should occur in such emergencies, leaving the balance of power to be struck by future practice and experience. This omission was no doubt deliberate, as the subject of explicit emergency powers surely would have torn the Constitutional Convention to shreds. Many of the delegates were highly suspicious of a central government even in peacetime, and they would have put up implacable resistance to suggestions for even temporary grants of extraordinary power to such a government during a national crisis. Consequently, they described executive powers in open terms, enumerated several legislative powers that could be deployed in emergency situations, assured the independence of the judiciary, and hoped for the best in the event of catastrophe. Their underlying assumption was that the government would continue to operate much as it did in peacetime, with the same distributions of power and obligation, and that any deviations from that norm would be at worst temporary, to be worked out among the three branches and ultimately subject to the will of the people.

The American experience has been to give all three branches something to say about emergencies, but to give the President the largest practical hand in dealing with them. The President’s primacy in addressing national emergencies rests principally on the chief executive’s superior capacity to respond both quickly and decisively, superior access to intelligence about emergent developments, and direct accountability through national election to the whole people of the United States. This view of executive superiority is particularly evident in the wartime precedents of the Supreme Court, especially those from the Civil War and World War II, the two direst emergencies the United States has experienced under its present Constitution. Most (though not all) Supreme Court decisions on emergency power emanating from those periods either avoided direct confrontation with the executive or, when forced to decide, found grounds for supporting extraordinary executive measures. Typically, when affirming executive power, the Court relied on what it deemed to be congressional authorization (or in some cases post hoc ratification) for the executive measures in question. The message appeared to be that what Congress was willing to support, ratify, or at least tolerate, the Court should generally accept as a constitutional exercise of executive authority, even when it transgressed what otherwise would seem to be entrenched rights and liberties. Over time, judicial acquiescence in congressionally unchallenged exercise of extraordinary executive authority in times of a national security crisis has become the baseline of executive power debate.

In present circumstances, there are reasons to wonder how firm that baseline ought to remain. While it is true that the President still enjoys advantages in terms of quick and decisive action, and ought to do so in terms of access to intelligence, other circumstances may have significantly aggravated the risks of acquiescence in unrestrained executive emergency power. The executive power baseline originated when the United States was much smaller in population and wealth, more vulnerable to territorial attack by an enemy sovereign, operating on the fringes of world politics, considerably less than a world military superpower, and only sporadically engaged in military conflicts at home or abroad. The historical baseline does not envision a nation at the center of world politics, with unrivaled wealth and military might, or a President with immediate access to potentially world-destroying force, or a nation more or less continuously involved in armed conflict somewhere on the globe. Nor does it envision a Congress hampered in its ability to control the incidence of war by the modern practice of avoiding formal war declarations. Although many might argue with some force that these are changes in degree and not in kind, their cumulative effect is sufficiently vast at least to raise the question whether doctrines regarding executive authority developed in the early days of the Republic ought to have continuing force.

This Article, however, does not challenge the executive power baseline, but rather treats it as the premise for the Court’s most recent efforts to delineate the contours of executive emergency powers in the context of cases involving enemy detention and military trial. I will give particular attention to the Court’s decision in Hamdan v. Rumsfeld, with some discussion of its immediate predecessors Hamdi v. Rumsfeld and Rasul v. Bush. I will argue that in all three decisions the Court left the executive power baseline intact, interpreting it, however, in a way that carves room for what amounts to a congressional and judicial “double check” of executive assertions of emergency authority. In doing so, the Court followed and developed the themes of Justice Jackson’s famous concurrence in Youngstown Sheet & Tube v. Sawyer (Steel Seizure). Although this double-check approach reserves some space for judicial initiative in supervising executive exercise of emergency power, it places primary reliance on Congress, enabling intensive judicial review principally in situations where Congress has signaled some limitation on executive authority.

In the current round of cases, Congress’s checking power stems from its capacity to exercise shared authority over noncombat aspects of military affairs, particularly the dispensation of military justice, in ways that limit or restrain executive discretion. The judiciary’s checking power is reflected in its approach toward judicial review of claims of executive authority. It consists of an antipathy to naked assertions of executive power, especially where fundamental civil rights and liberties are threatened, a careful reading of congressional action to protect congressional control over legislative functions, protection of the courts from erection of a shadow military judiciary subject to complete executive control, and an assertion of independent judicial competence to evaluate executive claims of necessity for bypassing regular judicial process.

Both the legislative and judicial checks have roots in precedent and practice. Foremost, they follow Justice Jackson’s famous categorical analysis of executive power in Steel Seizure, in that they are the legislative and judicial corollaries to his appraisal of executive authority. Indeed, the recent enemy combatant cases read like an extensive commentary on Jackson’s Steel Seizure concurrence. Effectively, they require two-branch cooperation either to sustain executive authority or to constrain it. Alone, either branch’s check has limited capacity to restrain executive authority. When exercised together, however, their double check stands as a potent guarantee against extravagant assertions of executive emergency power. When this double check has been deployed, as it was particularly in Hamdan, it results in relatively searching review of executive emergency national security claims, rather than the extreme deference to executive judgment that those claims have sometimes received, and it subjects executive discretion to constraint through meaningful legislative oversight.

The implications of this double-check method for the treatment of detainees in the war on terror depend heavily on congressional action, a result that is generally consistent with the aims of representative democracy. Responsibility falls in the first instance on the people’s elected representatives to set the limits of executive authority in times of proclaimed national security crisis. When Congress takes an active role, the courts have the tools they need for an effective executive double check; if Congress remains passive, however, there is relatively little the judiciary can do on its own to restrain executive emergency power. So far in the war on terror, Congress has shown a disinclination to assume an active limiting role. In light of the Detainee Treatment Act of 2005 (“DTA”) and the Military Commissions Act of 2006 (“MCA”), the double-check theory thus may not have as much impact on the present administration’s conduct of the war on terrorism as some of its critics may have hoped. The military commissions and practices of detention that were once the objects of executive fiat have now become the artifacts of legislative policy–making the military commissions for trial of enemy combatants what in other contexts we call, with reason, “Article I courts.” If there are to be any further restraints on their power, they must come from the judiciary acting alone against executive emergency power, a development that is arguably unprecedented in our history. Nevertheless, the double-check theory’s influence has begun to reshape the power contours and political dynamics of the present situation, showing that it serves as a more-than-symbolic potential limit on future executive authority claims.

Part II will trace the roots of the double-check theory in earlier case law, concentrating particularly on select precedent from the Civil War, World War II, and culminating in the landmark Steel Seizure decision during the Korean conflict. Part III will examine the development and use of the double-check theory in Hamdan, as well as its immediate predecessors, Rasul and Hamdi. Part IV will consider the implications of this approach in the application of the DTA and MCA, with some regard to post-Hamdan developments in the lower courts. It will also consider the question, which the Court may eventually face, whether the judiciary has authority on its own, without congressional limitations, to restrain arguable excesses of military justice. Part V will consider the double-check theory’s implications for the future, with an emphasis on its potential to block aggressive assertions of emergency authority that could otherwise threaten basic republican values.

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