Showing papers on "Plurality opinion published in 2005"

Congressional Authorization and the War on Terrorism

Abstract: This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v Rumsfeld, which devoted significant attention to the AUMF Under that framework, the meaning of the AUMF is determined in the first instance by its text, as informed by a comparison with authorizations of force in prior wars, including declared wars In ascertaining the scope of the "necessary and appropriate force" that Congress authorized in the AUMF, courts should look to two additional interpretive factors: Executive Branch practice during prior wars, and the international laws of war Although nondelegation concerns should not play a significant role in interpreting the AUMF, a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States The authors apply this framework to three specific issues in the war on terrorism: the identification of the enemy, the detention of persons captured in the United States, and the validity of using military commissions to try alleged terrorists

Authorizations for the Use of Force, International Law, and the Charming Betsy Canon

Abstract: Although international . law has figured prominently in many disputes around actions of the U.S. military, the precise relationship between international law and the President's war powers has gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorizations for the use of force. In the seminal case of Hamdi v. Rumsfeld, the plurality opinion used international law to interpret the authorization by Congress for the use of force, but did so without adequate attention to the content or interpretive function of international law. This Article identifies and defends a better approach: courts should presume that general authorizations for the use of force do not empower the President to violate international law. Such a presumption is consistent with long-standing tools of statutory interpretation reflected in the Charming Betsy canon, maximizes the presumed preferences of Congress, advances separation of powers values, and promotes normative values that favor the use of international law as an interpretive tool.

Authorizations For the Use of Force, International Law, and The Charming Betsy Canon

Abstract: International law has figured prominently in several on-going disputes around actions of the U.S. military in Afghanistan, Iraq, Guantanamo, and here in the United States, but the precise relationship between international law and President's war powers has nonetheless gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorization for the use of force. Recent cases, including Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), have confirmed the importance of congressional authorization to the Court's construction of the President's war powers. International law can, in turn, play an important role in how courts interpret the scope of general authorizations for the use of force by Congress. The plurality opinion in Hamdi illustrates this point, but unfortunately relies on international norms without sufficient attention to their content or their relationship to the authorization provided by Congress. This article identifies and defends a better approach: courts should presume that general authorizations for the use of force do not empower the President to violate international law. Such a presumption is consistent with long-standing tools of statutory interpretation reflected in the so-called Charming Betsy canon, does a good job of maximizing the presumed preferences of Congress, advances separation of powers in a number of ways, and promotes several normative values that favor the use of international law as an interpretive tool.

Hamdi Meets Youngstown : Justice Jackson's Wartime Security Jurisprudence and the Detention of Enemy Combatants

Abstract: More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution--that "Eighteenth-Century sketch of a government hoped for" (1)--struggles both to preserve fundamental liberties and to protect the nation against fundamental threats. Drawing upon his collective experience as a solo practitioner with only one year of formal legal education at Albany Law School; government tax and antitrust lawyer, Solicitor General, and Attorney General in the Roosevelt Administration; Associate Justice to the Supreme Court; and Representative and Chief of Counsel for the United States at Nuremberg, Justice Jackson sought to explain how the foreign affairs powers were distributed within the national government, how they related to constitutional civil liberties, and the appropriate role of the courts in achieving that balance. Jackson was no dove; in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, he announced that he would "indulge the widest latitude of interpretation to sustain [the President's]" power to command, "at least when turned against the outside world for the security of our society." (2) But Jackson also understood that claims of national security were themselves one of the greatest threats to the fidelity of constitutional governance. By the time he reached the Court, he viewed the war powers as "the Achilles Heel of our constitutional system," (3) due to the claims of necessity and the corresponding challenges to judicial protection of liberty that security crises bring. His powerful insights in his Youngstown concurrence into how a liberal democracy must reconcile the tension between security and liberty continue to dominate any reasoned analysis of national security questions. This comment, offered in Jackson's honor on the fiftieth anniversary of his death, addresses the contribution of Justice Jackson's wartime security jurisprudence to contemporary questions of executive detention of "enemy combatants," and particularly to the recent decision in Hamdi v. Rumsfeld. (4) Hamdi, of course, involved the executive's claimed authority to indefinitely detain a U.S. citizen accused of fighting with the Taliban in Afghanistan. This comment argues that Justice O'Connor's plurality opinion and Justice Thomas' dissent in that case missed a fundamental point of Justice Jackson's Youngstown analysis by failing to rigorously scrutinize claims that Congress had authorized such detentions. The Justices thus failed to appreciate the importance which Jackson placed on explicit participation by Congress in legitimizing deprivations of liberty in times of crisis. The Hamdi Court's ultimate conclusion that executive detention of a citizen could not occur absent basic procedural protections, however, was consistent with Justice Jackson's preference for legal process as the most effective defender of individual freedom. YOUNGSTOWN AND CONGRESSIONAL AUTHORIZATION It is impossible to exaggerate the significance of Justice Jackson's concurrence in Youngstown for U.S. foreign relations jurisprudence. My colleague at the University of Texas, Sandy Levinson, regards the concurrence as "the greatest single opinion ever written by a Supreme Court justice," (5) and I certainly will not disagree with him here. Although Justice Black's majority opinion in Youngstown dealt the fatal blow to President Truman's effort to seize the steel mills during the Korean War, it was Justice Jackson's concurrence that established the starting framework for analyzing all future foreign relations and individual liberties problems. Justice Jackson explained how the Constitution's cryptic and deeply ambiguous division of authority between Congress and the President in wartime--the grant of the power to declare and regulate war to one and the Commander in Chief power to the other--should be elaborated in practice. Jackson rejected Justice Black's formalistic view that the powers of Congress and the executive were hermetically sealed and instead envisioned the branches in a symbiotic relationship. …

Muddling through the murky waters of troxel

Abstract: A critical case in the area of third-party visitation rights was decided by the U. S. Supreme Court in July 2000 (Troxel v. Granville). A plurality in this case held that a Washington grandparent visitation statute was not facially unconstitutional but was as applied to the facts of that case. The author discusses the varying opinions of the Supreme Court justices in the Troxel decision. Next, he analyzes the plurality opinion to determine the appropriate standard of review in grandparent visitation cases. Following is a consideration of how the decision will affect other state grandparent visitation legislation. Examining these issues, the author concludes that future third-party visitation cases will be decided on a fact-specific, case-by-case basis.

Why Justice Breyer Was Wrong in Van Orden v. Perry

Abstract: INTRODUCTION From the moment Thomas Van Orden called me to ask if I'd be willing to try and get Supreme Court review in his case,1 I was convinced that the outcome would turn on Justice Sandra Day O'Connor. As I wrote the brief and as I stood before the Justices, I saw O'Connor as being the swing vote. I saw little chance of getting the votes of Chief Justice Rehnquist or Justices Scalia, Kennedy, or Thomas. They consistently had expressed a view of the Establishment Clause that left little chance that they would find a religious symbol on government property to be unconstitutional. Justice Kennedy, for example, wrote an opinion in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter arguing for allowing religious symbols on government property and contending that the government violates the Establishment Clause only if it literally establishes a church or coerces religious participation.2 Rehnquist and Scalia joined this opinion. I could not think of a way under this test to argue that the Ten Commandments display between the Texas State Capitol and the Texas Supreme Court is unconstitutional. Justice Thomas has argued repeatedly that he does not believe that the Establishment Clause applies to state and local governments at all. Almost sixty years ago, the Supreme Court unanimously held that the Establishment Clause, like almost all of the other provisions in the Bill of Rights, applies to state and local governments.3 On several occasions in recent years, Justice Thomas has urged the Court to overrule Everson and to hold that the Establishment Clause does not apply to state and local governments.4 Obviously, this view makes anything Texas wants to do constitutional. Texas could put a large cross atop its State Capitol, and Thomas would uphold its constitutionality. On the other hand, Justices Stevens, Souter, Ginsburg, and Breyer have been much more willing to enforce the Establishment Clause. They dissented in Zelman v. Simmons-Harris, where the Court held that vouchers from the government may be used for parochial schools.5 They also dissented in Agostini v. Felton,6 which allowed more aid to parochial schools, and Rosenberger v. Rectors and Visitors of the University of Virginia7 which held that the government cannot deny funding to religious student groups when money is available to secular groups. Justice O' Connor thus seemed to be the swing vote. She had played exactly this role in Allegheny, finding that a nativity scene by itself on government property was unconstitutional, but that a menorah was constitutional since it was part of an overall holiday display.8 She had repeatedly rejected the very limited scope of the Establishment Clause urged by Rehnquist, Scalia, Kennedy, and Thomas.9 But she also had joined them in cases like Zelman, Agostini, and Rosenberger.10 Thus, on June 27, 1 was disappointed but not shocked to learn that I had lost 5^1; however, I was very surprised when I found out that Justice Breyer was the fifth vote for the majority. As expected, Chief Justice Rehnquist' s plurality opinion, joined by Justices Scalia, Kennedy, and Thomas, made clear that they believe that religious symbols on government property are constitutional.11 Justice Breyer did not join that opinion but instead concurred in the judgment.12 He was clear that he accepts the test adopted by the four dissenting justices - Stevens, O'Connor, Souter, and Ginsburg - that the government may not place religious symbols on government property if they symbolically endorse religion.13 Breyer concluded by saying that he agreed with Justice O' Connor' s statement of principles, but not her application in this case.14 In other words, Breyer did not see a six-foot-high, three-foot-wide Ten Commandments monument between the Texas State Capitol and the Texas Supreme Court as symbolically endorsing religion. In this Article, I want to explain why Justice Breyer was wrong in his analysis. …

The Supreme Court and the Ten Commandments: Compounding the Establishment Clause Confusion

Abstract: INTRODUCTION The Supreme Court's decisions in Van Orden v Perry1 and McCreary County, Kentucky v ACLU of Kentucky2 have done nothing to clear away the fog obscuring religious display cases or Establishment Clause jurisprudence generally If anything, the decisions have exacerbated an already confused and confusing area of the Court's decisional law, an area which Justice Scalia has not shrunk from calling "embarrassing"3 Douglas Laycock, who filed amicus briefs in both cases in support of challengers of the respective displays, laments that the Court's decisions "draw fuzzy and unprincipled lines"4 An editorial in Christianity Today captures the understandable reactions of partisans of both sides: Everyone knows the Supreme Court ruled that one kind of Ten Commandments display on government property is unconstitutional, but that another kind is acceptable But no one - including the Supreme Court itself - seems to be able to explain why5 It seems that the Chief Justice may have chosen the wrong classical allusion when, in his Van Orden plurality opinion, he described the Court's Establishment Clause cases as "Januslike,"6 ie, pointing in two directions7 A better choice would have been "Hydralike," after the nine-headed mythological creature killed by Hercules as part of his famous Twelve Labors8 After this pair of decisions, the question is whether there is anywhere a logical, coherent principle or set of principles upon which five or more members of the Court can agree in order to perform the apparently Herculean task of adjudicating these cases in any kind of consistent, predictable manner I BACKGROUND Perhaps the most disappointing aspect of the Van Orden and McCreary decisions is that they utterly failed to resolve an issue that has been boiling over in the lower courts for the past decade Prior to 1996, only three reported decisions addressed the merits of constitutional challenges to Ten Commandments displays on non-school public property9 After that, the deluge10 As this non-exhaustive list shows, from about 1997 on, hardly a month went by without a decision being issued by either a district court or court of appeals on the constitutionality of some Ten Commandments display somewhere in the nation The results were anything but consistent The courts of appeals divided as follows: The Tenth Circuit held onto a ore-Stone v Graham11 case upholding a courthouse display of the Fraternal Order of Eagles monument12 The Third Circuit upheld a courthouse plaque of the Decalogue dating from 192013 The Sixth Circuit struck down every Ten Commandments display brought before it, including a Van Ordenesque state Capitol Eagles monument,14 a judge's courtroom poster,15 a school lawn historical texts display,16 and, of course, McCreary County's "Foundations of American Law and Government" display17 The Eleventh Circuit struck down Chief Justice Roy Moore's monumental display,18 but upheld Richmond County, Georgia's use of the Decalogue in its seal19 The Fifth Circuit upheld Texas's state capitol display of the Eagles monument in Van Orden20 The Seventh Circuit struck down a state capitol monument display,21 struck down a city hall Eagles monument display in the city of Elkhart, Indiana,22 but, just three months before the hammer fell on McCreary County's display, upheld a courthouse display identical to McCreary' s in the county of Elkhart, Indiana23 The Eighth Circuit took a wait-andsee attitude That court vacated a three judge panel's 2-1 decision affirming the district court's striking down of an Eagles monument in a city park,24 heard oral argument en banc on September 15, 2004, then apparently informally abated further action pending the Supreme Court's consideration of Van Orden and McCreary25 Confused? So were the lower courts, which frequently expressed, in the cases cited above as well as in district court opinions, their frustration with the lack of anything approaching clear direction from the highest court in the land …