United States Constitution

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.

Hamdi v. Rumsfeld (2004)

Hamdan v. Rumsfeld (2006)

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.

Biddle v. Perovich (1927)

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.

Bond v. United States (2014)

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.

Humphrey’s Executor v. United States (1935)

Wiener v. United States (1958)

Bowsher v. Synar(1986)