May 10, 2023 | SCOTUS Concludes Oral Arguments for the Term
|Clause 1: Commander in Chief||Important Cases|
|Article II Section 2 begins with the Commander in Chief Clause, stating the President is the commander of the nation’s armed forces. While the Constitution vests Congress with the ability to declare war, it is the Executive that actually manages and commands the armed forces once war has been declared. This has inevitably created a continuing friction between the two branches, particularly when it comes to declaration of war.The clearest Supreme Court precedent on the matter is the decision in the Prize cases. Prior to the official declaration of the Civil War, President Lincoln ordered a blockade of the southern states. Many ships were seized – under admiralty law, if a ship was seized during war it could be kept as a “prize”, otherwise the taking of the ships would be considered piracy. Congress only approved of the President’s actions and the war after the blockade had already begun. The Court determined that the President did not need prior Congressional approval in order to start blockades as a war tactic against the South. The Court reasoned that rebellions as well as attacks against the United States both represented unique situations – war was being declared on the United States by either of these actions. In those specific cases, the President had to act quickly to protect the country, and could order military action without prior approval.|
Challenges to a president’s use of military force can be difficult to bring before the Court. The courts are likely to refuse to decide on any cases they deem “political questions” – decisions that would reflect policy choices better suited for Congress, rather than constitutional issues determined by the Court. Many cases filed during the Vietnam War and other conflicts since have been dismissed this way.
One hotly debated topic regarding the Executive’s powers is the detention and prosecution of enemy combatants. This issue first was first addressed in Ex Parte Milligan, a decision issued shortly after the end of the Civil War. The defendants in that case had planned to attack Union prisoner of war camps, but were captured and sentenced to death by a military tribunal in Indiana. During this time, President Lincoln had suspended habeas corpus. The defendants challenged their convictions given by the military tribunals, and the Court overturned the convictions. The Court did not dispute the suspension of habeas corpus, but determined that since the defendants were not soldiers and the normal criminal courts were still open, the military tribunals could not be used. Since Indiana had never been a rebel state and the courts had never ceased to function, Congress could not allow military tribunals against non-enemy combatants.
Most recently the issues of executive power, military tribunals, and enemy combatants have come to the forefront of discussions about the global war on terrorism. Hamdi v. Rumsfeld, decided in 2004, and touched on these issues. Hamdi, an American citizen, was captured in Afghanistan and held as an enemy combatant. He was detained for two years without trial or charges on the basis of his capture and slim evidence. His father filed a habeus corpus petition, challenging his detention. The government argued that since Hamdi was considered an enemy combatant, he was not owed any form of due process or judicial review. The Supreme Court addressed two issues. Could the US detain an American captured abroad and try him before a military tribunal? What due process should Hamdi be given?
In a 5-4 vote, a plurality of the Court held that Hamdi could be held as an enemy combatant. The plurality reasoned that Congress’s Authorization for Use of Military Force (created after 9/11 to authorize the military to attack Al-Qaeda related individuals) allowed for Hamdi’s detention as an enemy combatant. The AUMF activated the President’s war powers. Justice Thomas wrote a concurrence where he stated that the President also was justified in detaining Hamdi as an enemy combatant under his Article II powers.
Justice Scalia wrote a strong dissent to this part of the decision, arguing that the only way an American citizen could be held as an enemy combatant without charges or a trial was if habeas corpus was officially suspended, which the Authorization for Use of Military Force did not do.
On the second issue, the Court was far more unanimous: Hamdi’s habeas petition could be heard, and he must be afforded due process. This included access to counsel and the ability to review evidence and charges against him.
In the 2006 decision Hamdan v. Rumsfeld, the President’s ability to use military tribunals was called into question. President Bush established military commissions (military courts that operate differently than normal courts) to try enemy combatants facing terrorism related charges. Hamdan, a yemini accused of being Osama Bin Laden’s bodyguard, challenged the legality of the military commissions. He claimed they violated international human rights law because they provided much less protection than the processes of a normal court. The government argued that the president had the authority to make the military commissions because Hamdam was accused of violating the laws of war, and that Congress had authorized the President under the AUMF. The government also argued that the commissions provided enough legal protections and that the Supreme Court was actually not even allowed to hear the case.
The Court determined that it did have jurisdiction, and that the military commissions could not proceed because they violated the law. Although the majority recognized that the President could create military commissions, it pointed out that this had limits: military commissions were used either in occupied territory, when other courts were not operating, or when the defendant being tried has violated the laws of war. Without this, the President would need a statute passed by Congress expanding his authority to create military commissions.
The Court determined that the AUMF did not give the President extra authority to create military commissions – therefore the military commission was only justified because Hamdan would be accused of violating the laws of war. However, even if that was the case, the military commissions had to follow these laws as well. The Court determined that multiple aspects of the commissions violated the Geneva Convention, and therefore the commissions could not continue.
|Prize Cases (1862)Ex Parte Milligan (1866)|
|Clause 1: Pardons||Important Cases|
|The first clause of section two also gives the President the power to pardon individuals of any federal crime, aside from impeachment. In Ex Parte Garland, an attorney was given a pardon after the Civil War’s end. The decision affirmed that a presidential pardon could be provided before, during, or after the legal proceedings, for any crime. This pardon allowed the lawyer in Garland to have his ability to practice law restored as well.However, pardons do not remove civil liability. In Ex Parte Grossman, the defendant illegally sold and served liquor at his establishment. After being caught and given a restraining order to cease serving alcohol, he violated the court order and was found guilty of contempt of court. The President pardoned the defendant, but the district court ordered him to serve time for the contempt regardless. The Supreme Court upheld this decision, differentiating between civil and criminal penalties. A pardon could remove criminal penalties, because these penalties only served to punish the offender. However, civil liability focused on the injured party – civil liability aims to make the victim whole, rather than necessarily punish the defender. Therefore a pardon of a civil liability would hurt the injured party. The Court also referred to English common law, where this same distinction was made.|
A pardon does not necessarily need to completely forgive an offense, either. In Biddle v Perovich, a man convicted to death for a murder had his sentence commuted to life in prison by a Presidential pardon. The Supreme Court upheld the pardon and noted that a pardon from the President was an ultimate decision done for the public’s general welfare, and that it could not be denied, even by the pardoned individual.
Pardons can also be given out to groups rather than individuals. This was done after the Civil War, as well as to anyone who dodged the draft in the Vietnam War.
|Ex Parte Garland (1866)Ex Parte Grossman (1925)|
|Clause 1: Cabinet||Important Cases|
|This first clause additionally establishes the Presidential cabinet – the principle officers of executive branch departments and agencies which the President can ask for opinions on matters.|
|Clause 2: Treaty Clause||Important Cases|
|The second clause of Article II Section 2, the Advice and Consent Clause, contains two separate Presidential powers – both requiring the consent of the Senate.The Treaty Clause allows the President to negotiate and enter into agreements with foreign countries upon the approval of the Senate. Treaties that have been adopted by the Senate are permitted as long as they don’t violate the Constitution. In Reid v. Covert, the cases of two civilian women who had murdered their active military husbands while accompanying them abroad on duty, were at issue. Both were tried under US military tribunals due to an agreement with the foreign countries they committed the murders in. The treaties gave exclusive jurisdiction to US military tribunals over criminal acts committed by Americans in the military or accompanying military members when overseas.|
The Court held that that was unconstitutional, because geographical limits did not change the fact that the accused were American civilians. They held that the treaty violated the Constitution because by allowing the military to try American civilians in tribunals, the treaty gave a branch of the government more power than was allowed by the Constitution.
Treaties are binding throughout the country and can overrule state law, however. The 1920 decision Missouri v. Holland established this, when the Supreme Court upheld a treaty between the United States and Great Britain that protected certain migratory birds from being hunted. Missouri sued, arguing that the treaty interfered with the state’s rights reserved under the 10th Amendment. The Court rejected this argument, with Justice Holmes stating that treaties were allowed under Article II and the supreme law of the land under Article VI, and were different than any other law passed by Congress – treaties could in fact have broader power.
It is important to note that there are different kinds of treaties that the US government recognizes, despite only one form being explicitly laid out in the Constitution. Treaties require 2/3 vote approval of the Senate. Congressional-Executive Agreements require additional laws to be passed by Congress, and these are treated like any other statute. Sole-Executive treaties are the last and final kind of treaty, requiring only ratification by the President, but can only be on issues under the President’s control or authorized by Congress. Some treaties are “self-executing”, meaning they don’t require additional laws to be passed, while the rest require additional domestic legislation to be passed as normal.
Missouri v. Holland has proven to be a controversial case in the time since, with some disputing that there should not be a difference in treatment between a statute and a treaty under the 10th amendment. Most recently, critics hoped that the 2014 decision in Bond v. United States would overturn Missouri v. Holland, but the opinion avoided the issue instead.
|Reid v. Covert (1957)Missouri v. Holland (1920)|
|Clause 2: Appointment Power||Important Cases|
|The Appointment Clause allows the President to nominate Supreme Court justices, ambassadors, officers, and inferior officers (if allowed by Congress) with the approval of the Senate. The clause acts as a balance of power between the two branches – Congress cannot weaken the Executive branch by appointing its own supporters, but the President’s appointments must still be approved.Under this clause, Congress can pass laws which specifically give the President, heads of executive departments, or the courts the ability to approve appointments of “inferior officers”. This led to the question of who exactly was considered an inferior officer. In the 1988 Morrison v. Olson decision, the Court upheld the appointment by federal judges of an “independent counsel” created by the Ethics in Government Act to investigate abuses of power by federal officials. The Court determined that this independent counsel was an inferior officer because he could be fired after showing of good cause by the attorney general, he had less power than the attorney general, and the length and mission of the appointment was limited by the appointing court. Since he was an inferior officer, and Congress had given the judiciary the ability to appoint him via law, the independent counsel was constitutional.|
The power of the President to dismiss appointed officials is not mentioned in the Constitution. However, the ability to do so has been developed over time. In the 1926 decision Myers v. United States, the firing of a postmaster was at issue. Postmasters are part of the executive branch, yet Congress had passed a law prohibiting their firing without advice and consent from the Senate. Writing for the majority, Chief Justice Taft upheld the firing, holding that the ability of removal was solely an executive function, and that the act Congress passed to prevent this was an unconstitutional limit of executive power.
However, the Court shifted course several years after Myers, in the decision Humphrey’s Executor v. United States. Congress passed an act which only allowed for the Federal Trade Commissioner to be removed from office for particular offenses. The Court upheld this act under the reasoning that the Federal Trade Commissioner was a “quasi-legislative” agency, whereas Myers’ holding controlled purely executive positions. Public policy and separation of powers were served by letting Congress put some limits on when a President could remove an officer of an independent regulatory agency, compared to cabinet officials or other people directly serving the President.
Weiner v. United States continued with this concept, holding that even without any statutory limit on his removal powers, the President could not arbitrarily remove executive officials who were in positions that by their very nature required independence. The Court took a functional approach in its reasoning: some positions needed to be independent from the President in order to properly regulate conduct, and therefore the President’s power to remove can be limited.
Although Congress can protect positions from the President’s removal in certain circumstances, Congress cannot create a position that has executive power yet cannot be removed at all by the President. In Bowsher v. Synar, the Court struck down the Gramm-Rudman-Hollings Deficit Reduction Act of 1985. The act allowed the comptroller general of the United States, the head of a congressional agency, to impose budget cuts. The Court held that this was unconstitutional because only the Executive branch was tasked with implementing the law, not Congress. By letting a congressional office implement budget cuts, Congress was effectively using executive power through an official who could not be fired or controlled by the President. The only way Congress could reserve the ability to remove an executive official is through the impeachment process.
|Morrison v. Olson (1988)Myers v. United States (1926)|
Humphrey’s Executor v. United States (1935)
Wiener v. United States (1958)
|Clause 3: Recess Appointment||Important Cases|
|The third clause in section two is the Recess Appointment Clause. While the Senate is in recess (not in session), the President may appoint senior federal officials to vacancies without the Senate’s approval. These appointments must be approved by the end of the next session, otherwise the position becomes vacant again.This clause was at issue in the recent decision National Labor Relations Board v. Noel Canning. President Obama determined that the Senate was in recess and made several appointments to the National Labor Relations Board. These appointments were challenged, and the Court ruled that the President had overstepped his power under this clause because the Senate was in fact still in session when the appointments were made. The Senate is the only body that may declare when it is officially in recess.||National Labor Relations Board v. Noel Canning (2014)|