Clause 1

Clause 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Office, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

COMMANDER-IN-CHIEF
Development of the Concept

Surprisingly little discussion of the Commander-in-Chief Clause is found in the Convention or in the ratifying debates. From the evidence available, it appears that the Framers vested the duty in the President because experience in the Continental Congress had disclosed the inexpediency of vesting command in a group and because the lesson of English history was that danger lurked in vesting command in a person separate from the responsible political leaders.132 But the principal concern here is the nature of the power granted by the clause.

The Limited View.

The purely military aspects of the Commander-in-Chiefship were those that were originally stressed. Hamilton said the office “would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy.”133 Story wrote in his Commentaries: “The propriety of admitting the president to be commander in chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents.”134 In 1850, Chief Justice Taney, for the Court, wrote: “His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. . . .”

“But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question.”135 Even after the Civil War, a powerful minority of the Court described the role of President as Commander-in-Chief simply as “the command of the forces and the conduct of campaigns.”136

The Prize Cases.

The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.137 In his famous message to Congress of July 4, 1861,138 Lincoln advanced the claim that the “war power” was his for the purpose of suppressing rebellion, and in the Prize Cases139 of 1863 a divided Court sustained this theory. The immediate issue was the validity of the blockade that the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.140 The argument was advanced that a blockade to be valid must be an incident of a “public war” validly declared, and that only Congress could, by virtue of its power “to declare war,” constitutionally impart to a military situation this character and scope. Speaking for the majority of the Court, Justice Grier answered: “If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ‘unilateral.’ Lord Stowell (1 Dodson, 247) observes, ‘It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers of the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other.’ ”

“The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized ‘a state of war as existing by the act of the Republic of Mexico.’ This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress.”

“This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. . . .”

“Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the government to which this power was entrusted. ‘He must determine what degree of force the crisis demands.’ The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.”141

Impact of the Prize Cases on World Wars I and II.

In brief, the powers that may be claimed for the President under the Commander-in-Chief Clause at a time of widespread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war.142 And, because, especially in the early months of the Civil War, Lincoln performed various acts, such as increasing the Army and Navy, that admittedly fell within Congress’s constitutional province, it seems to have been assumed during World Wars I and II that the position of Commander-in-Chief carried with it the power to exercise like powers practically at discretion, not merely in wartime but even at a time when war became a strong possibility. No attention was given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly had,143 with the exception of his suspension of habeas corpus, a power that many attributed to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.144 Nor was this the only respect in which war or the approach of war was deemed to operate to enlarge the scope of power claimable by the President as Commander-in-Chief in wartime.145

Presidential Theory of the Commander-in-Chiefship in World War II—And Beyond

In his message to Congress of September 7, 1942, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,146 President Roosevelt formulated his conception of his powers as “Commander in Chief in wartime” as follows:

“I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescapable responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.”

“In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.”

“At the same time that farm prices are stabilized, wages can and will be stabilized also. This I will do.”

“The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.”

“I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. . . .”

“The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.”

“When the war is won, the powers under which I act automatically revert to the people—to whom they belong.”147

Presidential War Agencies.

While congressional compliance with the President’s demand rendered unnecessary an effort on his part to amend the Price Control Act, there were other matters as to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances prior to it. Thus, in exercising both the powers which he claimed as Commander-in-Chief and those which Congress conferred upon him to meet the emergency, Mr. Roosevelt employed new emergency agencies, created by himself and responsible directly to him, rather than the established departments or existing independent regulatory agencies.148

Constitutional Status of Presidential Agencies.

The ques- tion of the legal status of the presidential agencies was dealt with judicially but once. This was in the decision of the United States Court of Appeals for the District of Columbia in Employers Group v. National War Labor Board,149 which was a suit to annul and enjoin a “directive order” of the War Labor Board. The Court refused the injunction on the ground that the time when the directive was issued any action of the Board was “informatory,” “at most advisory.” In support of this view the Court quoted approvingly a statement by the chairman of the Board itself: “These orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite body in which industry, labor, and the public share equal responsibility; and the appeal of the Board is to the moral obligation of employers and workers to abide by the nonstrike, no-lock-out agreement and . . . to carry out the directives of the tribunal created under that agreement by the Commander in Chief.”150 Nor, the Court continued, had the later War Labor Disputes Act vested War Labor Board orders with any greater authority, with the result that they were still judicially unenforceable and unreviewable. Following this theory, the War Labor Board was not an office wielding power, but a purely advisory body, such as Presidents have frequently created in the past without the aid or consent of Congress. Congress itself, nevertheless, both in its appropriation acts and in other legislation, treated the presidential agencies as in all respects offices.151

Evacuation of the West Coast Japanese.

On February 19, 1942, President Roosevelt issued an executive order, “by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy,” providing, as a safeguard against subversion and sabotage, power for his military commanders to designate areas from which “any person” could be excluded or removed and to set up facilities for such persons elsewhere.152 Pursuant to this order, more than 112,000 residents of the Western states, all of Japanese descent and more than two out of every three of whom were natural-born citizens, were removed from their homes and herded into temporary camps and later into “relocation centers” in several states.

It was apparently the original intention of the Administration to rely on the general principle of military necessity and the power of the Commander-in-Chief in wartime as authority for the relocations. But before any action of importance was taken under the order, Congress ratified and adopted it by the Act of March 21, 1942,153 by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order were decided under the order plus the Act. The question at issue, said Chief Justice Stone for the Court, “is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional . . . [power] to impose the curfew restriction here complained of.”154 This question was answered in the affirmative, as was the similar question later raised by an exclusion order.155

Presidential Government of Labor Regulations.

The most important segment of the home front regulated by what were in effect presidential edicts was the field of labor relations. Exactly six months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his proclamation thirteen days earlier of an unlimited national emergency, issued an Executive Order seizing the North American Aviation Plant at Inglewood, California, where, on account of a strike, production was at a standstill.156 Attorney General Jackson justified the seizure as growing out of the “duty constitutionally and inherently rested upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern,” as well as “to obtain supplies for which Congress has appropriated the money, and which it has directed the President to obtain.”157 Other seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive Order 9017, created the National War Labor Board. “Whereas,” the order read in part, “by reason of the state of war declared to exist by joint resolutions of Congress, . . . the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and Whereas as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941, it has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled by peaceful means, and that a National War Labor Board be established for a peaceful adjustment of such disputes. Now, therefore, by virtue of the authority vested in me by the Constitution and the statutes of the United States, it is hereby ordered: 1. There is hereby created in the Office for Emergency Management a National War Labor Board . . . .”158 In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943,159 which, however, still left ample basis for presidential activity of a legislative character.160

Sanctions Implementing Presidential Directives.

To imple- ment his directives as Commander-in-Chief in wartime, and especially those which he issued in governing labor disputes, President Roosevelt often resorted to “sanctions,” which may be described as penalties lacking statutory authorization. Ultimately, the President sought to put sanctions in this field on a systematic basis. The order empowered the Director of Economic Stabilization, on receiving a report from the National War Labor Board that someone was not complying with its orders, to issue “directives” to the appropriate department or agency requiring that privileges, benefits, rights, or preferences enjoyed by the noncomplying party be withdrawn.161

Sanctions were also occasionally employed by statutory agencies, such as OPA, to supplement the penal provisions of the Emergency Price Control Act of January 30, 1942.162 In Steuart & Bro. v. Bowles,163 the Supreme Court had the opportunity to regularize this type of executive emergency legislation. Here, a retail dealer in fuel oil was charged with having violated a rationing order of OPA by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited by the agency from receiving oil for resale or transfer for the ensuing year. The offender conceded the validity of the rationing order in support of which the suspension order was issued but challenged the validity of the latter as imposing a penalty that Congress had not enacted and asked the district court to enjoin it.

The court refused to do so and was sustained by the Supreme Court in its position. Justice Douglas wrote for the Court: “[W]ithout rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. . . . But middlemen—wholesalers and retailers—bent on defying the rationing system could raise havoc with it. . . . These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduit. . . . Certainly we could not say that the President would lack the power under this Act to take away from a wasteful factory and route to an efficient one a precious supply of material needed for the manufacture of articles of war. . . . From the point of view of the factory owner from whom the materials were diverted the action would be harsh. . . . But in times of war the national interest cannot wait on individual claims to preference. . . . Yet if the President has the power to channel raw materials into the most efficient industrial units and thus save scarce materials from wastage it is difficult to see why the same principle is not applicable to the distribution of fuel oil.”164 Sanctions were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. It is certain, however, that sanctions not uncommonly exceeded this pattern.165

The Postwar Period.

The end of active hostilities did not ter- minate either the emergency or the Federal Government’s response to it. President Truman proclaimed the termination of hostilities on December 31, 1946,166 and, in July 1947, Congress enacted a joint resolution that repealed a great variety of wartime statutes and set termination dates for others.167 Signing the resolution, the President said that the emergencies declared in 1939 and 1940 continued to exist and that it was “not possible at this time to provide for terminating all war and emergency powers.”168 The hot war was giving way to the Cold War.

Congress thereafter enacted a new Housing and Rent Act to continue the controls begun in 1942169 and continued the military draft.170 With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again,171 and by executive order the President created agencies to exercise the power.172 The Court continued to assume the existence of a state of wartime emergency prior to Korea, but with misgivings. In Woods v. Cloyd W. Miller Co.,173 the Court held constitutional the new rent control law on the ground that cessation of hostilities did not end the government’s war power, but that the power continued to remedy the evil arising out of the emergency. Yet, Justice Douglas noted for the Court, “We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well. There are no such implications in today’s decision.”174 Justice Jackson, though concurring, noted that he found the war power “the most dangerous one to free government in the whole catalogue of powers” and cautioned that its exercise “be scrutinized with care.”175 And, in Ludecke v. Watkins,176 four dissenting Justices were prepared to hold that the presumption in the statute under review of continued war with Germany was “a pure fiction” and not to be used.

But the postwar period was a time of reaction against the wartime exercise of power by President Roosevelt, and President Truman was not permitted the same liberties. The Twenty-second Amendment, writing into permanent law the two-term custom, the “Great Debate” about our participation in NATO, the attempt to limit the treaty-making power, and other actions, bespoke the reaction.177 The Supreme Court signalized this reaction when it struck down the President’s action in seizing the steel industry while it was struck during the Korean War.178

Nonetheless, the long period of the Cold War and of active hostilities in Korea and Indochina, in addition to the issue of the use of troops in the absence of congressional authorization, further created conditions for consolidation of powers in the President. In particular, a string of declarations of national emergencies, most, in whole or part, under the Trading with the Enemy Act,179 under-girded the exercise of much presidential power. In the storm of response to the Vietnamese conflict, here, too, Congress reasserted legislative power to curtail what it viewed as excessive executive power, repealing the Trading with the Enemy Act and enacting in its place the International Emergency Economic Powers Act,180 which did not alter most of the range of powers delegated to the President but which did change the scope of the power delegated to declare national emergencies.181 Congress also passed the National Emergencies Act, prescribing procedures for the declaration of national emergencies, for their termination, and for presidential reporting to Congress in connection with national emergencies. To end the practice of declaring national emergencies for an indefinite duration, Congress provided that any emergency not otherwise terminated would expire one year after its declaration unless the President published in the Federal Register and transmitted to Congress a notice that the emergency would continue in effect.182

The Cold War and After: Presidential Power To Use Troops Overseas Without Congressional Authorization

Reaction after World War II did not persist, but soon ran its course, and the necessities, real and perceived, of the United States’ role as world power and chief guarantor of the peace operated to expand the powers of the President and to diminish congressional powers in the foreign relations arena. President Truman did not seek congressional authorization before sending troops to Korea, and subsequent Presidents similarly acted on their own in putting troops into many foreign countries, including the Dominican Republic, Lebanon, Grenada, Panama, and the Persian Gulf, and most notably Indochina.183 Eventually, public opposition precipitated another constitutional debate whether the President had the authority to commit troops to foreign combat without the approval of Congress, a debate that went on inconclusively between Congress and Executive184 and one which the courts were content generally to consign to the exclusive consideration of those two bodies. The substance of the debate concerns many facets of the President’s powers and responsibilities, including his obligations to protect the lives and property of United States citizens abroad, to execute the treaty obligations of the Nation, to further the national security interests of the Nation, and to deal with aggression and threats of aggression as they confront him. Defying neat summarization, the considerations nevertheless merit at least an historical survey and an attempted categorization of the arguments.

The Historic Use of Force Abroad.

In 1912, the Depart- ment of State published a memorandum prepared by its Solicitor which set out to justify the Right to Protect Citizens in Foreign Countries by Landing Forces.185 In addition to the justification, the memorandum summarized 47 instances in which force had been used, in most of them without any congressional authorization. Twice revised and reissued, the memorandum was joined by a 1928 independent study and a 1945 work by a former government official in supporting conclusions that drifted away from the original justification of the use of United States forces abroad to the use of such forces at the discretion of the President and free from control by Congress.186

New lists and revised arguments were published to support the actions of President Truman in sending troops to Korea and of Presidents Kennedy and Johnson in sending troops first to Vietnam and then to Indochina generally,187 and new lists have been propounded.188 The great majority of the instances cited involved fights with pirates, landings of small naval contingents on barbarous or semibarbarous coasts to protect commerce, the dispatch of small bodies of troops to chase bandits across the Mexican border, and the like, and some incidents supposedly without authorization from Congress did in fact have underlying statutory or other legislative authorization. Some instances, e.g., President Polk’s use of troops to precipitate war with Mexico in 1846, President Grant’s attempt to annex the Dominican Republic, President McKinley’s dispatch of troops into China during the Boxer Rebellion, involved considerable exercises of presidential power, but in general purposes were limited and congressional authority was sought for the use of troops against a sovereign state or in such a way as to constitute war. The early years of this century saw the expansion in the Caribbean and Latin America both of the use of troops for the furthering of what was perceived to be our national interests and of the power of the President to deploy the military force of the United States without congressional authorization.189

The pre-war actions of Presidents Wilson and Franklin Roosevelt advanced in substantial degrees the fact of presidential initiative, although the theory did not begin to catch up with the fact until the “Great Debate” over the commitment of troops by the United States to Europe under the Atlantic Pact. While congressional authorization was obtained, that debate, the debate over the United Nations charter, and the debate over Article 5 of the North Atlantic Treaty of 1949, declaring that “armed attack” against one signatory was to be considered as “an attack” against all signatories, provided the occasion for the formulation of a theory of independent presidential power to use the armed forces in the national interest at his discretion.190 Thus, Secretary of State Acheson told Congress: “Not only has the President the authority to use the armed forces in carrying out the broad foreign policy of the United States implementing treaties, but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution.”191

The Theory of Presidential Power.

The fullest expression of the presidential power proponents has been in defense of the course followed in Indochina. Thus, the Legal Adviser of the State Department, in a widely circulated document, contended: “Under the Constitution, the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. He holds the prime responsibility for the conduct of United States foreign relations. These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States. . . .”

“In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the nation’s security. In the SEATO treaty, for example, it is formally declared that an armed attack against Viet Nam would endanger the peace and security of the United States.”

“Under our Constitution it is the President who must decide when an armed attack has occurred. He has also the constitutional responsibility for determining what measures of defense are required when the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to South Viet Nam is required, and that military measures against the source of Communist aggression in North Viet Nam are necessary, he is constitutionally empowered to take those measures.”192

Opponents of such expanded presidential powers have contended, however, that the authority to initiate war was not divided between the Executive and Congress but was vested exclusively in Congress. The President had the duty and the power to repeal sudden attacks and act in other emergencies, and in his role as Commander in Chief he was empowered to direct the armed forces for any purpose specified by Congress.193 Though Congress asserted itself in some respects, it never really managed to confront the President’s power with any sort of effective limitation, until recently.

The Power of Congress to Control the President’s Discretion.

Over the President’s veto, Congress enacted the War Pow- ers Resolution,194 designed to redistribute the war powers between the President and Congress. Although ambiguous in some respects, the Resolution appears to define restrictively the President’s powers, to require him to report fully to Congress upon the introduction of troops into foreign areas, to specify a maximum time limitation on the engagement of hostilities absent affirmative congressional action, and to provide a means for Congress to require cessation of hostilities in advance of the time set.

The Resolution states that the President’s power to commit United States troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.195 In the absence of a declaration of war, a President must within 48 hours report to Congress whenever he introduces troops (1) into hostilities or situations of imminent hostilities, (2) into a foreign nation while equipped for combat, except in certain nonhostile situations, or (3) in numbers which substantially enlarge United States troops equipped for combat already located in a foreign nation.196 If the President introduces troops in the first of these three situations, then he must terminate the use of troops within 60 days after his report was submitted or was required to be submitted to Congress, unless Congress (1) has declared war, (2) has extended the period, or (3) is unable to meet as a result of an attack on the United States, but the period can be extended another 30 days by the President’s certification to Congress of unavoidable military necessity respecting the safety of the troops.197 Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.198 The Resolution further states that no legislation, whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad unless the legislation specifically does so and that no treaty may so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue.199

Aside from its use as a rhetorical device, the War Powers Resolution has been of little worth in reordering presidential-congressional relations in the years since its enactment. All Presidents operating under it have expressly or implicitly considered it to be an unconstitutional infringement on presidential powers, and on each occasion of use abroad of United States troops the President in reporting to Congress has done so “consistent[ly] with” the reporting section but not pursuant to the provision.200 Upon the invasion of Kuwait by Iraqi troops in 1990, President Bush sought not congressional authorization but a United Nations Security Council resolution authorizing the use of force by member Nations. Only at the last moment did the President seek authorization from Congress, he and his officials contending that he had the power to act unilaterally.201 After intensive debate, Congress voted, 250 to 183 in the House of Representatives and 53 to 46 in the Senate, to authorize the President to use United States troops pursuant to the U.N. resolution and purporting to bring the act within the context of the War Powers Resolution.202

By contrast, President George W. Bush sought a resolution from Congress in 2002 to approve the eventual invasion of Iraq before seeking a U.N. Security Council resolution, all the while denying that express authorization from Congress, or for that matter, the U.N. Security Council, was necessary to renew hostilities in Iraq. Prior to adjourning for its midterm elections, Congress passed the Authorization for Use of Military Force against Iraq Resolution of 2002,203 which it styled as “specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” On signing the measure, the President noted that he had sought “an additional resolution of support” from Congress, and expressed appreciation for receiving that support, but stated, “my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.”204 In the Bush administration’s view, the primary benefit of receiving authorization from Congress seems to have been the message of political unity it conveyed to the rest of the world rather than the fulfillment of any constitutional requirements.

Although there is recurrent talk within Congress and without as to amending the War Powers Resolution to strengthen it, no consensus has emerged, and there is little evidence that there exists within Congress the resolve to exercise the responsibility concomitant with strengthening it.205

The President as Commander of the Armed Forces

While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so, and he has been known to resolve personally important questions of military policy. Lincoln early in 1862 issued orders for a general advance in the hopes of stimulating McClellan to action; Wilson in 1918 settled the question of an independent American command on the Western Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki.206 As against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme commander. “He may invade the hostile country, and subject it to the sovereignty and authority of the United States.”207 In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities.208 He may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements.209 He may, at least with the assent of Congress, authorize commercial intercourse with the enemy.210 He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theater of military operations when necessity requires, thereby incurring for the United States the obligation to render “just compensation.”211 By the same warrant, he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions that may determine to a great extent the ensuing peace.212 He may not, however, effect a permanent acquisition of territory,213 though he may govern recently acquired territory until Congress sets up a more permanent regime.214

The President is the ultimate tribunal for the enforcement of the rules and regulations that Congress adopts for the government of the forces, and that are enforced through courts-martial.215 Indeed, until 1830, courts-martial were convened solely on the President’s authority as Commander in Chief.216 Such rules and regulations are, moreover, it seems, subject in wartime to his amendment at discretion.217 Similarly, the power of Congress to “make rules for the government and regulation of the land and naval forces” (Art. I, § 8, cl. 14) did not prevent President Lincoln from promulgating, in April, 1863, a code of rules to govern the conduct in the field of the armies of the United States, which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad.218 One important power that the President lacks is that of choosing his subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in “the President alone.”219 Also, the President’s power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal “in pursuance of the sentence of a general court-martial or in mitigation thereof.”220 But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his place.221 The President’s power of dismissal in time of war Congress has never attempted to limit.

The Commander-in-Chief a Civilian Officer.

Is the Commander-in-Chiefship a military or a civilian office in the contemplation of the Constitution? Unquestionably the latter. An opinion by a New York surrogate deals adequately, though not authoritatively, with the subject: “The President receives his compensation for his services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the Constitution that the President’s duties as Commander in Chief represent only a part of duties ex officio as Chief Executive [Article II, sections 2 and 3 of the Constitution] and that the latter’s office is a civil office. [Article II, section 1 of the Constitution . . . .] The President does not enlist in, and he is not inducted or drafted into, the armed forces. Nor, is he subject to court-martial or other military discipline. On the contrary, Article II, section 4 of the Constitution provides that ‘The President, [Vice President] and All Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.’ . . . The last two War Presidents, President Wilson and President Roosevelt, both clearly recognized the civilian nature of the President’s position as Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows:–‘It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.’ It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service. (United States v. Burns, 79 U.S. (12 Wall.) 246 (1871)). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: ‘The supremacy of the civil over the military is one of our great heritages.’ Duncan v. Kahanamoku, 327 U.S. 304, 325 (1945).”222

Martial Law and Constitutional Limitations

Two theories of martial law are reflected in decisions of the Supreme Court. The first, which stems from the Petition of Right, 1628, provides that the common law knows no such thing as martial law;223 that is to say, martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity.224 By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. Borden225 that state declarations of martial law were conclusive and therefore not subject to judicial review.226 In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that state. The decision in the Prize Cases,227 although not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.

The Civil War being safely over, however, a divided Court, in the elaborately argued Milligan case,228 reverting to the older doctrine, pronounced President Lincoln’s action void, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as “spies” and “abettors of the enemy.” The salient passage of the Court’s opinion bearing on this point is the following: “If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”229 Four Justices, speaking by Chief Justice Chase, while holding Milligan’s trial to have been void because it violated the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan’s trial. The Chief Justice wrote: “Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. . . .”

“We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.”

“Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.”230 In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.

Early in the 20th century, however, the Court appeared to retreat from its stand in Milligan insofar as it held in Moyer v. Peabody231 that “the Governor’s declaration that a state of insurrection existed is conclusive of that fact. . . . [T]he plaintiff ’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. . . . So long as such arrests are made in good faith and in honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.”232 The “good faith” test of Moyer, however, was superseded by the “direct relation” test of Sterling v. Constantin,233 where the Court made it very clear that “[i]t does not follow . . . that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. . . . What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”234

Martial Law in Hawaii.

The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local commanding General of the Army all his own powers as governor and also “all of the powers normally exercised by the judicial officers . . . of this territory . . . during the present emergency and until the danger of invasion is removed.” Two days later the Governor’s action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.

By section 67 of the Organic Act of April 30, 1900,235 the Territorial Governor was authorized “in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known.” By section 5 of the Organic Act, “the Constitution . . . shall have the same force and effect within the said Territory as elsewhere in the United States.” In a brace of cases which reached it in February 1945, but which it contrived to postpone deciding till February 1946,236 the Court, speaking by Justice Black, held that the term “martial law” as employed in the Organic Act, “while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals.”237

The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result. “I assume also,” he said, “that there could be circumstances in which the public safety requires, and the Constitution permits, substitution of trials by military tribunals for trials in the civil courts,”238 but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. He warned that “courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight.”239

Articles of War: The Nazi Saboteurs.

In 1942 eight youths, seven Germans and one an American, all of whom had received training in sabotage in Berlin, were brought to this country aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. “. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.”240 The second argument it disposed of by showing that petitioners’ case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre.241 The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,242 thereby, in effect, attributing to the President the right to amend the Articles of War in a case of the kind before the Court ad libitum.

The decision might well have rested on the ground that the Constitution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. Punishment of the saboteurs was therefore within the President’s purely martial powers as Commander in Chief. Moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war, they would have been subject under the statutes to restraint and other disciplinary action by the President without appeals to the courts. In any event, the Court rejected the jurisdictional challenge by one of the saboteurs on the basis of his claim to U.S. citizenship, finding U.S. citizenship wholly irrelevant to the determination of whether a wartime captive is an “enemy belligerent” within the meaning of the law of war.243

Articles of War: World War II Crimes.

As a matter of fact, in General Yamashita’s case,244 which was brought after the termination of hostilities for alleged “war crimes,” the Court abandoned its restrictive conception altogether. In the words of Justice Rutledge’s dissenting opinion in this case: “The difference between the Court’s view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply.”245 And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under international law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws, nor does international law forbid ex post facto laws.246

Articles of War: Response to the Attacks of September 11, 2001.

In response to the September 11, 2001, terrorist attacks on New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military Force,”247 which provided that the President may use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons.” During a military action in Afghanistan pursuant to this authorization, a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had plenary authority under Article II to hold such an “enemy combatant” for the duration of hostilities, and to deny him meaningful recourse to the federal courts. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan, although a majority of the Court appeared to reject the notion that such power was inherent in the Presidency, relying instead on statutory grounds.248 However, the Court did find that the government may not detain the petitioner indefinitely for purposes of interrogation, and must afford him the opportunity to offer evidence that he is not an enemy combatant.249

In Rasul v. Bush,250 the Court rejected an Executive Branch argument that foreign prisoners being held at Guantanamo Bay were outside of federal court jurisdiction. The Court distinguished earlier case law arising during World War II that denied habeas corpus petitions from German citizens who had been captured and tried overseas by United States military tribunals.251 In Rasul, the Court noted that the Guantanamo petitioners were not citizens of a country at war with the United States,252 had not been afforded any form of tribunal, and were being held in a territory over which the United States exercised exclusive jurisdiction and control.253 In addition, the Court found that statutory grounds existed for the extension of habeas corpus to these prisoners.254

In response to Rasul, Congress amended the habeas statute to eliminate all federal habeas jurisdiction over detainees, whether its basis was statutory or constitutional.255 This amendment was challenged in Boumediene v. Bush,256 as a violation of the Suspension Clause.257 Although the historical record did not contain significant common-law applications of the writ to foreign nationals who were apprehended and detained overseas, the Court did not find this conclusive in evaluating whether habeas applied in this case.258 Emphasizing a “functional” approach to the issue,259 the Court considered (1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was made; (2) the nature of the sites where apprehension and detention took place; and (3) any practical obstacles inherent in resolving the prisoner’s entitlement to the writ. As in Rasul, the Court distinguished previous case law, noting that the instant detainees disputed their enemy status, that their ability to dispute their status had been limited, that they were held in a location (Guantanamo Bay, Cuba) under the de facto jurisdiction of the United States, and that complying with the demands of habeas petitions would not interfere with the government’s military mission. Thus, the Court concluded that the Suspension Clause was in full effect regarding these detainees.

Martial Law and Domestic Disorder.

President Washing- ton himself took command of state militia called into federal service to quell the Whiskey Rebellion, but there were not too many occasions subsequently in which federal troops or state militia called into federal service were required.260 Since World War II, however, the President, by virtue of his own powers and the authority vested in him by Congress,261 has used federal troops on a number of occasions, five of them involving resistance to desegregation decrees in the South.262 In 1957, Governor Faubus employed the Arkansas National Guard to resist court-ordered desegregation in Little Rock, and President Eisenhower dispatched federal soldiers and brought the Guard under federal authority.263 In 1962, President Kennedy dispatched federal troops to Oxford, Mississippi, when federal marshals were unable to control with rioting that broke out upon the admission of an African American student to the University of Mississippi.264 In June and September of 1964, President Johnson sent troops into Alabama to enforce court decrees opening schools to blacks.265 And, in 1965, the President used federal troops and federalized local Guardsmen to protect participants in a civil rights march. The President justified his action on the ground that there was a substantial likelihood of domestic violence because state authorities were refusing to protect the marchers.266

PRESIDENTIAL ADVISERS
The Cabinet

The authority in Article II, § 2, cl. 1 to require the written opinion of the heads of executive departments is the meager residue from a persistent effort in the Federal Convention to impose a council on the President.267 The idea ultimately failed, partly because of the diversity of ideas concerning the council’s make-up. One member wished it to consist of “members of the two houses,” another wished it to comprise two representatives from each of three sections, “with a rotation and duration of office similar to those of the Senate.” The proposal with the strongest backing was that it should consist of the heads of departments and the Chief Justice, who should preside when the President was absent. Of this proposal the only part to survive was the above cited provision. The consultative relation here contemplated is an entirely one-sided affair, is to be conducted with each principal officer separately and in writing, and is to relate only to the duties of their respective offices.268 The Cabinet, as we know it today, that is to say, the Cabinet meeting, was brought about solely on the initiative of the first President,269 and may be dispensed with on presidential initiative at any time, being totally unknown to the Constitution. Several Presidents have in fact reduced the Cabinet meeting to little more than a ceremony with social trimmings.270

PARDONS AND REPRIEVES
The Legal Nature of a Pardon

In the first case to be decided concerning the pardoning power, Chief Justice Marshall, speaking for the Court, said: “As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institution ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. . . . A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” Marshall continued to hold that to be noticed judicially this deed must be pleaded, like any private instrument.271

In Burdick v. United States,272 Marshall’s doctrine was put to a test that seems to have overtaxed it, perhaps fatally. Burdick, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him, was proffered by President Wilson “a full and unconditional pardon for all offenses against the United States,” which he might have committed or participated in in connection with the matter he had been questioned about. Burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the Supreme Court. “The grace of a pardon,” remarked Justice McKenna sententiously, “may be only a pretense . . . involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected . . . .”273 Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President Johnson’s amnesties to the Court’s notice.274 In 1927, however, in sustaining the right of the President to commute a sentence of death to one of life imprisonment, against the will of the prisoner, the Court abandoned this view. “A pardon in our days,” it said, “is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”275 Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful.276 They seem clearly to indicate that by substituting a commutation order for a deed of pardon, a President can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty.277

Scope of the Power

The pardon power embraces all “offences against the United States,” except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer,278 the power to pardon absolutely or conditionally, and the power to commute sentences, which, as seen above, is effective without the convict’s consent.279 It has been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an invasion of the presidential prerogative, amounting as it does to a condonation of the offense.280 It was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and by Theodore Roosevelt—to Aguinaldo’s followers—in 1902.281 Not until after the Civil War, however, was the point adjudicated, when it was decided in favor of presidential prerogative.282

The President cannot pardon by anticipation, or he would be invested with the power to dispense with the laws, King James II’s claim to which was the principal cause of his forced abdication.283

Offenses Against the United States: Contempt of Court.

The President may pardon criminal but not civil contempts of court. The Court “point[ed] out that it is not the fact of punishment but rather its character and purpose that makes the difference between the two kinds of contempts. For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions.”284 In upholding the President’s power to pardon criminal contempt, Chief Justice Taft, speaking for the Court, resorted once more to English conceptions as being authoritative in construing this clause of the Constitution. He wrote: “The King of England before our Revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present day. In the mind of a common law lawyer of the eighteenth century the word pardon included within its scope the ending by the King’s grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. [Citing cases.] These cases also show that, long before our Constitution, a distinction had been recognized at common law between the effect of the King’s pardon to wipe out the effect of a sentence for contempt in so far as it had been imposed to punish the contemnor for violating the dignity of the court and the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court’s order necessary to secure the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in English law.”285 Nor was any new or special danger to be apprehended from this view of the pardoning power. “If,” the Chief Justice asked, “we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?” Although, he added, “[t]he power of a court to protect itself and its usefulness by punishing contemnors is of course necessary,” in light of the fact that a court exercises this power “without the restraining influence of a jury and without many of the guaranties [sic] which the bill of rights offers[,] . . . [m]ay it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial?”286

Effects of a Pardon: Ex parte Garland.

The leading case on this subject is Ex parte Garland,287 which was decided shortly after the Civil War. By an act passed in 1865, Congress had prescribed that, before any person should be permitted to practice in a federal court, he must take oath asserting that he had “never voluntarily borne arms against the United States,” had never given aid or encouragement “to persons engaged in armed hostilities” against the United States, and so forth.288 Garland, who had “taken part in the Rebellion against the United States, by being in the Congress of the so-called Confederate States,” and so was unable to take the oath, had, however, received from President Johnson “a full pardon ‘for all offences by him committed, arising from participation, direct or implied, in the Rebellion,’ ”289 The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Justice Field wrote for a divided Court: “[T]he inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”290

Justice Miller, speaking for the minority, protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice law. “The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counselor-at-law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar.”291 Justice Field’s language must today be regarded as too sweeping in light of the 1914 decision in Carlesi v. New York.292 Carlesi had been convicted several years before of committing a federal offense. In the instant case, he was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. This conviction and sentence were upheld by the Supreme Court. Although this case involved offenses against different sovereignties, the Court declared in dictum that its decision “must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.”293

Limits to the Efficacy of a Pardon.

But Justice Field’s lati- tudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued before conviction. He is also correct in saying that a full pardon restores a convict to his “civil rights,” and this is so even though simple completion of the convict’s sentence would not have had that effect. One such right is the right to testify in court, and in Boyd v. United States, the Court held that “[t]he disability to testify being a consequence, according to the principles of the common law, of the judgment of conviction, the pardon obliterated that effect.”294 But a pardon “does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender’s property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law.”295

Congress and Amnesty

Congress cannot limit the effects of a presidential amnesty. Thus the act of July 12, 1870, making proof of loyalty necessary to recover property abandoned and sold by the government during the Civil War, notwithstanding any executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was pronounced void. Chief Justice Chase wrote for the majority: “[T]he legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end.”296 On the other hand, Congress itself, under the Necessary and Proper Clause, may enact amnesty laws remitting penalties incurred under the national statutes.297

Footnotes

132
May, The President Shall Be Commander in Chief, in THE ULTIMATE DECISION: THE PRESIDENT AS COMMANDER IN CHIEF (E. May ed., 1960), 1. In the Virginia ratifying convention, Madison, replying to Patrick Henry’s objection that danger lurked in giving the President control of the military, said: “Would the honorable member say that the sword ought to be put in the hands of the representatives of the people, or in other hands independent of the government altogether?” 3 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 393 (1836). In the North Carolina convention, Iredell said: “From the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, dispatch, and decision, which are necessary in military operations can only be expected from one person.” 4 id. at 107. [Back to text]
133
THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 465. [Back to text]
134
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1486 (1833). [Back to text]
135
Fleming v. Page, 50 U.S. (9 How.) 603, 615, 618 (1850). [Back to text]
136
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866). [Back to text]
137
1 Stat. 424 (1795): 2 Stat. 443 (1807), now 10 U.S.C. §§ 331334. See also Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32–33 (1827), asserting the finality of the President’s judgment of the existence of a state of facts requiring his exercise of the powers conferred by the act of 1795. [Back to text]
138
7 J. Richardson, supra, at 3221, 3232. [Back to text]
139
67 U.S. (2 Bl.) 635 (1863). [Back to text]
140
7 J. Richardson, supra, at 3215, 3216, 3481. [Back to text]
141
67 U.S. (2 Bl.) at 668–70. [Back to text]
142
See generally, E. CORWIN, TOTAL WAR AND THE CONSTITUTION (1946). [Back to text]
143
12 Stat. 326 (1861). [Back to text]
144
J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 118–139 (rev. ed. 1951). [Back to text]
145
E.g., Attorney General Biddle’s justification of seizure of a plant during World War II: “As Chief Executive and as Commander-in-Chief of the Army and Navy, the President possesses an aggregate of powers that are derived from the Constitution and from various statutes enacted by the Congress for the purpose of carrying on the war. . . . In time of war when the existence of the nation is at stake, this aggregate of powers includes authority to take reasonable steps to prevent nation-wide labor disturbances that threaten to interfere seriously with the conduct of the war. The fact that the initial impact of these disturbances is on the production or distribution of essential civilian goods is not a reason for denying the Chief Executive and the Commander-in-Chief of the Army and Navy the power to take steps to protect the nation’s war effort.” 40 Ops. Atty. Gen. 312, 319–320 (1944). Prior to the actual beginning of hostilities, Attorney General Jackson asserted the same justification upon seizure of an aviation plant. E. CORWIN, TOTAL WAR AND THE CONSTITUTION 47–48 (1946). [Back to text]
146
56 Stat. 23 (1942). [Back to text]
147
88 CONG. REC. 7044 (1942). Congress promptly complied, 56 Stat. 765 (1942), so that the President was not required to act on his own. But see E. Corwin, supra, 65–66. [Back to text]
148
For a listing of the agencies and an account of their creation to the close of 1942, see Vanderbilt, War Powers and Their Administration, in 1942 ANNUAL SURVEY OF AMERICAN LAW 106 (New York Univ.). [Back to text]
149
143 F.2d 145 (D.C. Cir. 1944). [Back to text]
150
143 F.2d at 149. [Back to text]
151
E. Corwin, supra at 244, 245, 459. [Back to text]
152
E.O. 9066, 7 FED. REG. 1407 (1942). [Back to text]
153
56 Stat. 173 (1942). [Back to text]
154
Hirabayashi v. United States, 320 U.S. 81, 91–92 (1943). [Back to text]
155
Korematsu v. United States, 323 U.S. 214 (1944). Long afterward, in 1984, a federal court granted a writ of coram nobis and overturned Korematsu’s conviction, Korematsu v. United States, 584 F. Supp. 1406 (N.D.Cal. 1984), and in 1986, a federal court vacated Hirabayashi’s conviction for failing to register for evacuation but let stand the conviction for curfew violations. Hirabayashi v. United States, 627 F. Supp. 1445 (W.D.Wash. 1986). Other cases were pending, but Congress then implemented the recommendations of the Commission on Wartime Relocation and Internment of Civilians by acknowledging “the fundamental injustice of the evacuation, relocation and internment,” and apologizing on behalf of the people of the United States. Pub. L. 100–383, 102 Stat. 903 (1988), 50 U.S.C. App. §§ 1989 et seq. Reparations were approved, and each living survivor of the internment was to be compensated in an amount roughly approximating $20,000. [Back to text]
156
E.O. 8773, 6 Fed. Reg. 2777 (1941). [Back to text]
157
E. CORWIN, TOTAL WAR AND THE CONSTITUTION 47–48 (1946). [Back to text]
158
7 Fed. Reg. 237 (1942). [Back to text]
159
57 Stat. 163 (1943). [Back to text]
160
See Vanderbilt, War Powers and their Administration, in 1945 ANNUAL SURVEY OF AMERICAN LAW 254, 271–273 (N.Y. Univ.). [Back to text]
161
E.O. 9370, 8 Fed. Reg. 11463 (1943). [Back to text]
162
56 Stat. 23 (1942). [Back to text]
163
322 U.S. 398 (1944). [Back to text]
164
322 U.S. at 405–06. [Back to text]
165
E. Corwin, supra, at 249–250. [Back to text]
166
Proc. 2714, 12 Fed. Reg. 1 (1947). [Back to text]
167
S.J. Res. 123, 61 Stat. 449 (1947). [Back to text]
168
Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948). [Back to text]
169
61 Stat. 193 (1947). [Back to text]
170
62 Stat. 604 (1948). [Back to text]
171
Defense Production Act of 1950, 64 Stat. 798. [Back to text]
172
E.O. 10161, 15 Fed. Reg. 6105 (1950). [Back to text]
173
333 U.S. 138 (1948). [Back to text]
174
333 U.S. at 143–44. [Back to text]
175
333 U.S. at 146–47. [Back to text]
176
335 U.S. 160, 175 (1948). [Back to text]
177
See A. KELLY & W. HARBISON, THE AMERICAN CONSTITUTION: ITS ORIGINS AND DEVELOPMENT, ch. 31 (4th ed. 1970). [Back to text]
178
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). [Back to text]
179
§ 301(1), 55 Stat. 838, 839–840 (1941). [Back to text]
180
91 Stat. 1626, 50 U.S.C. §§ 17011706. [Back to text]
181
Congress authorized the declaration of a national emergency based only on “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or the economy of the United States . . . .” 50 U.S.C. § 1701. [Back to text]
182
Pub. L. 94–412, 90 Stat. 1255 (1976). [Back to text]
183
See the discussion in NATIONAL COMMITMENTS RESOLUTION, REPORT OF THE SENATE COMMITTEE ON FOREIGN RELATIONS, S. REP. NO. 91–129, 91st Congress, 1st sess. (1969); U.S. Commitments to Foreign Powers: Hearings Before the Senate Committee on Foreign Relations, 90th Congress, 1st sess. (1967) at 16–19 (Professor Bartlett). [Back to text]
184
See discussion under Article I, § 8, cls. 11–14. [Back to text]
185
J. Clark, Memorandum by the Solicitor for the Department of State, in RIGHT TO PROTECT CITIZENS IN FOREIGN COUNTRIES BY LANDING FORCES (1912). [Back to text]
186
Id. (Washington: 1929; 1934); M. OFFUTT, THE PROTECTION OF CITIZENS ABROAD BY THE ARMED FORCES OF THE UNITED STATES (1928); J. ROGERS, WORLD POLICING AND THE CONSTITUTION (1945). The burden of the last cited volume was to establish that the President was empowered to participate in United Nations peacekeeping actions without having to seek congressional authorization on each occasion; it may be said to be one of the earliest, if not the earliest, propoundings of the doctrine of inherent presidential powers to use troops abroad outside the narrow compass traditionally accorded those powers. [Back to text]
187
E.g., H. REP. NO. 127, 82d Congress, 1st Sess. (1951), 55–62; Corwin, Who Has the Power to Make War? NEW YORK TIMES MAGAZINE (July 31, 1949), 11; Authority of the President to Repel the Attack in Korea, 23 DEPT. STATE BULL. 173 (1950); Department of State, Historical Studies Division, Armed Actions Taken by the United States Without a Declaration of War, 1789–1967 (Res. Proj. No. 806A (Washington: 1967)). That the compilation of such lists was more than a defense against public criticism can be gleaned from a revealing discussion in Secretary of State Acheson’s memoirs detailing why the President did not seek congressional sanction for sending troops to Korea. “There has never, I believe, been any serious doubt—in the sense of non-politically inspired doubt—of the President’s constitutional authority to do what he did. The basis for this conclusion in legal theory and historical precedent was fully set out in the State Department’s memorandum of July 3, 1950, extensively published. But the wisdom of the decision not to ask for congressional approval has been doubted. . . .” After discussing several reasons establishing the wisdom of the decision, the Secretary continued: “The President agreed, moved also, I think, by another passionately held conviction. His great office was to him a sacred and temporary trust, which he was determined to pass on unimpaired by the slightest loss of power or prestige. This attitude would incline him strongly against any attempt to divert criticism from himself by action that might establish a precedent in derogation of presidential power to send our forces into battle. The memorandum that we prepared listed eighty-seven instances in the past century in which his predecessors had done this. And thus yet another decision was made.” D. ACHESON, PRESENT AT THE CREATION 414, 415 (1969). [Back to text]
188
War Powers Legislation: Hearings Before the Senate Foreign Relations Committee, 92d Congress, 1st Sess. (1971), 347, 354–355, 359–379 (Senator Goldwater); Emerson, War Powers Legislation, 74 W. VA. L. REV. 53 (1972). The most complete list as of the time prepared is Collier, Instances of Use of United States Armed Forces Abroad, 1798–1989, CONG. RES. SERV. (1989), which was cited for its numerical total in United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). For an effort to reconstruct the development and continuation of the listings, see F. WORMUTH & E. FIRMAGE, TO CHAIN THE DOG OF WAR 142–145 (2d ed. 1989). [Back to text]
189
Of course, considerable debate continues with respect to the meaning of the historical record. For reflections of the narrow reading, see NATIONAL COMMITMENTS RESOLUTION, Report of the Senate Committee on Foreign Relations, S. REP. NO. 91–129, 1st Sess. (1969); J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993). On the broader reading and finding great presidential power, see A. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS (1976); Emerson, Making War Without a Declaration, 17 J. LEGIS. 23 (1990). [Back to text]
190
For some popular defenses of presidential power during the “Great Debate,” see Corwin, Who Has the Power to Make War? NEW YORK TIMES MAGAZINE (July 31, 1949), 11; Commager, Presidential Power: The Issue Analyzed, NEW YORK TIMES MAGAZINE (January 14, 1951), 11. Cf. Douglas, The Constitutional and Legal Basis for the President’s Action in Using Armed Forces to Repel the Invasion of South Korea, 96 CONG. REC. 9647 (1950). President Truman and Secretary Acheson utilized the argument from the U.N. Charter in defending the United States actions in Korea, and the Charter defense has been made much of since. See, e.g., Stromseth, Rethinking War Powers: Congress, the President, and the United Nations, 81 GEO. L. J. 597 (1993). [Back to text]
191
Assignment of Ground Forces of the United States to Duty in the European Area: Hearings Before the Senate Foreign Relations and Armed Services Committees, 82d Congress, 1st Sess. (1951), 92. [Back to text]
192
Meeker, The Legality of United States Participation in the Defense of Viet Nam, 54 DEPT. STATE BULL. 474, 484–485 (1966). See also Moore, The National Executive and the Use of the Armed Forces Abroad, 21 NAVAL WAR COLLEGE REV. 28 (1969); Wright, The Power of the Executive to Use Military Forces Abroad, 10 VA. J. INT. L. 43 (1969); Documents Relating to the War Powers of Congress, The President’s Authority as Commander-in-Chief and the War in Indochina, Senate Committee on Foreign Relations, 91st Congress, 2d sess. (Comm. Print) (1970), 1 (Under Secretary of State Katzenbach), 90 (J. Stevenson, Legal Adviser, Department of State), 120 (Professor Moore), 175 (Assistant Attorney General Rehnquist). [Back to text]
193
E.g., F. WORMUTH & E. FIRMAGE, TO CHAIN THE DOG OF WAR (2d ed. 1989), F.; J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993); U.S. Commitments to Foreign Powers: Hearings Before the Senate Committee on Foreign Relations, 90th Congress, 1st sess. (1967), 9 (Professor Bartlett); War Powers Legislation: Hearings Before the Senate Committee on Foreign Relations, 92d Cong., 1st sess. (1971), 7 (Professor Commager), 75 (Professor Morris), 251 (Professor Mason). [Back to text]
194
Pub. L. 93–148, 87 Stat. 555, 50 U.S.C. §§ 15411548. For the congressional intent and explanation, see H. REP. NO. 93–287, S. REP. NO. 93–220, and H. REP. NO. 93–547 (Conference Report), all 93d Congress, 1st sess. (1973). The President’s veto message is H. Doc. No. 93–171, 93d Congress. 1st Sess. (1973). All this material is collected in The War Powers Resolution: Relevant Documents, Reports, Correspondence, House Committee on Foreign Affairs, 103d Cong., 2d Sess. (Comm. Print) (GPO: 1994), 1–46. For a narrative account of passage and an assessment of the disputed compliance to date, from the congressional point of view, see The War Powers Resolution, A Special Study of the House Committee on Foreign Affairs, 102d Cong., 2d Sess. (Comm. Print) (GPO: 1982). [Back to text]
195
87 Stat. 554, 2(c), 50 U.S.C. § 1541(c). [Back to text]
196
50 U.S.C. § 1543(a). [Back to text]
197
50 U.S.C. § 1544(b). [Back to text]
198
Id. at § 1544(c). It is the general consensus that, following INS v. Chadha, 462 U.S. 919 (1983), this provision of the Resolution is unconstitutional. [Back to text]
199
50 U.S.C. § 1547(a). [Back to text]
200
See the text of the reports in The War Powers Resolution: Relevant Documents, Reports, Correspondence, supra at 47 (Pres. Ford on transport of refugees from Danang), 55 (Pres. Carter on attempted rescue of Iranian hostages), 73 (Pres. Reagan on use of troops in Lebanon), 113 (Pres. Reagan on Grenada), 144 (Pres. Bush on Panama), 147, 149 (Pres. Bush on Persian Gulf), 189 (Pres. Bush on Somalia), 262 (Pres. Clinton on Haiti). [Back to text]
201
See Crisis in the Persian Gulf Region: U.S. Policy Options and Implications:Hearings Before the Senate Committee on Armed Services, 101st Cong., 2d Sess. (1990), 701 (Secretary Cheney) (President did not require “any additional authorization from the Congress” before attacking Iraq). On the day following his request for supporting legislation from Congress, President Bush, in answer to a question about the requested action, stated: “I don’t think I need it. . . . I feel that I have the authority to fully implement the United Nations resolutions.” 27 WEEKLY COMP. PRES. DOC. 25 (Jan. 8, 1991). [Back to text]
202
Pub. L. 102–1, 105 Stat. 3 (1991). [Back to text]
203
Pub. L. 107–243; 116 Stat. 1498 (2002). The House approved the resolution by a vote of 296–133. The Senate passed the House version of H.J. Res. 114 by a vote of 77–23. [Back to text]
204
See President’s Statement on Signing H.J. Res. 114, Oct. 16, 2002, available at [http://usinfo.state.gov/dhr/Archive/2003/Oct/09–906028.html]. [Back to text]
205
See, on proposals to amend and on congressional responsibility, J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993). [Back to text]
206
For a review of how several wartime Presidents have operated in this sphere, see THE ULTIMATE DECISION: THE PRESIDENT AS COMMANDER IN CHIEF (E. May ed., 1960). [Back to text]
207
Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850). [Back to text]
208
Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). [Back to text]
209
Totten v. United States, 92 U.S. 105 (1876). [Back to text]
210
Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875); Haver v. Yaker, 76 U.S. (9 Wall.) 32 (1869). [Back to text]
211
Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1852); United States v. Russell, 80 U.S. (13 Wall.) 623 (1871); Totten v. United States, 92 U.S. 105 (1876); 40 Ops. Atty. Gen. 250, 253 (1942). [Back to text]
212
Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris, 30 Stat. 1742 and President Wilson’s Fourteen Points, which were incorporated in the Armistice of November 11, 1918. [Back to text]
213
Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850). [Back to text]
214
Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230–31 (1901). [Back to text]
215
Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See also Givens v. Zerbst, 255 U.S. 11 (1921). [Back to text]
216
15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, where the contrary view is stated by Attorney General Wirt. [Back to text]
217
Ex parte Quirin, 317 U.S. 1, 28–29 (1942). [Back to text]
218
General Orders, No. 100, Official Records, War Rebellion, ser. III, vol. III; April 24, 1863. [Back to text]
219
See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States v. Corson, 114 U.S. 619 (1885). [Back to text]
220
10 U.S.C. § 804. [Back to text]
221
Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257 U.S. 541 (1922). [Back to text]
222
Surrogate’s Court, Duchess County, New York, ruling July 25, 1950, that the estate of Franklin D. Roosevelt was not entitled to tax benefits under sections 421 and 939 of the Internal Revenue Code, which extends certain tax benefits to persons dying in the military services of the United States. New York Times, July 26, 1950, p. 27, col. 1. [Back to text]
223
C. FAIRMAN, THE LAW OF MARTIAL RULE 20–22 (1930); A. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 283, 290 (5th ed. 1923). [Back to text]
224
Id. at 539–44. [Back to text]
225
48 U.S. (7 How.) 1 (1849). See also Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32–33 (1827). [Back to text]
226
48 U.S. (7 How.) at 45. [Back to text]
227
67 U.S. (2 Bl.) 635 (1863). [Back to text]
228
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). [Back to text]
229
71 U.S. at 127. [Back to text]
230
71 U.S. at 139–40. In Ex parte Vallandigham, 68 U.S. (1 Wall.) 243 (1864), the Court had held, while war was still flagrant, that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the Army, commanding a military department. [Back to text]
231
212 U.S. 78 (1909). [Back to text]
232
212 U.S. at 83–85. [Back to text]
233
287 U.S. 378 (1932). “The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate decision, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace.” Id. at 399–400. [Back to text]
234
287 U.S. at 400–01. This holding has been ignored by states on numerous occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 (1935); Hearon v. Calus, 178 S.C. 381, 183 S.E. 13 (1935); and Joyner v. Browning, 30 F. Supp. 512 (W.D. Tenn. 1939). [Back to text]
235
31 Stat. 141, 153 (1900). [Back to text]
236
Duncan v. Kahanamoku, 327 U.S. 304 (1946). [Back to text]
237
327 U.S. at 324. [Back to text]
238
327 U.S. at 336. [Back to text]
239
327 U.S. at 343. [Back to text]
240
Ex parte Quirin, 317 U.S. 1, 29–30, 35 (1942). [Back to text]
241
317 U.S. at 41–42. [Back to text]
242
317 U.S. at 28–29. [Back to text]
243
Ex parte Quirin, 317 U.S. 1, 37–38 (1942) (“Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.”). See also Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957) (“[T]he petitioner’s citizenship in the United States does not . . . confer upon him any constitutional rights not accorded any other belligerent under the laws of war.”). [Back to text]
244
In re Yamashita, 327 U.S. 1 (1946). [Back to text]
245
327 U.S. at 81. [Back to text]
246
See Gross, The Criminality of Aggressive War, 41 AM. POL. SCI. REV. 205 (1947). [Back to text]
247
Pub. L. 107–40, 115 Stat. 224 (2001). [Back to text]
248
542 U.S. 507 (2004). There was no opinion of the Court. Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer, avoided ruling on the Executive Branch argument that such detentions could be authorized by its Article II powers alone, and relied instead on the “Authorization for Use of Military Force” passed by Congress. Justice Thomas also found that the Executive Branch had the power to detain the petitioner, although his dissenting opinion found that such detentions were authorized by Article II. Justice Souter, joined by Justice Ginsberg, rejected the argument that the Congress had authorized such detentions, while Justice Scalia, joined with Justice Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus. [Back to text]
249
At a minimum, the petitioner must be given notice of the asserted factual basis for holding him, must be given a fair chance to rebut that evidence before a neutral decisionmaker, and must be allowed to consult an attorney. 542 U.S. at 533, 539. [Back to text]
250
542 U.S. 466 (2004). [Back to text]
251
Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). [Back to text]
252
The petitioners were Australians and Kuwaitis. [Back to text]
253
Rasul v. Bush, 542 U.S. at 467. [Back to text]
254
The Court found that 28 U.S.C. § 2241, which had previously been construed to require the presence of a petitioner in a district court’s jurisdiction, was now satisfied by the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). Another “enemy combatant” case, this one involving an American citizen arrested on American soil, was remanded after the Court found that a federal court’s habeas jurisdiction under 28 U.S.C. § 2241 was limited to jurisdiction over the immediate custodian of a petitioner. Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal court’s jurisdiction over Secretary of Defense Rumsfeld not sufficient to satisfy presence requirement under 28 U.S.C. § 2241). In Munaf v. Geren, 128 S. Ct. 2207 (2008), the Court held that the federal habeas statute, 28 U.S.C. § 2241, applied to American citizens held by the Multinational Force—Iraq, an international coalition force operating in Iraq and composed of 26 different nations, including the United States. The Court concluded that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition. [Back to text]
255
Detainee Treatment Act of 2005, Pub. L. 109–148, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or consider . . . an application for a writ of habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay”). After the Court decided, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that this language of the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, the language was amended by the Military Commissions Act of 2006, Pub. L. 109–366, to also apply to pending cases where a detainee had been determined to be an enemy combatant. [Back to text]
256
553 U.S. 723 (2008). [Back to text]
257
U.S. Const. Art. I, § 9, cl. 2 provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In Boumediene, the government argued only that the Suspension Clause did not apply to the detainees; it did not argue that Congress had acted to suspend habeas. [Back to text]
258
“[G]iven the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on this point.” 553 U.S. at 752. [Back to text]
259
553 U.S. at 764. “[Q]uestions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Id. [Back to text]
260
United States Adjutant-General, Federal Aid in Domestic Disturbances 1787–1903, S. Doc. No. 209, 57th Congress, 2d sess. (1903); Pollitt, Presidential Use of Troops to Enforce Federal Laws: A Brief History, 36 N.C. L. REV. 117 (1958). United States Marshals were also used on approximately 30 occasions. United States Commission on Civil Rights, Law Enforcement: A Report on Equal Protection in the South (Washington: 1965), 155–159. [Back to text]
261
10 U.S.C. §§ 331–334, 3500, 8500, deriving from laws of 1795, 1 Stat. 424; 1861, 12 Stat. 281; and 1871, 17 Stat. 14. [Back to text]
262
The other instances were in domestic disturbances at the request of state governors. [Back to text]
263
Proc. No. 3204, 22 Fed. Reg. 7628 (1957); E.O. 10730, 22 Fed. Reg. 7628. See 41 Ops. Atty. Gen. 313 (1957); see also, Cooper v. Aaron, 358 U.S. 1 (1958); Aaron v. McKinley, 173 F. Supp. 944 (E.D. Ark. 1959), aff’d sub nom Faubus v. Aaron, 361 U.S. 197 (1959); Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), cert. denied, 358 U.S. 829 (1958). [Back to text]
264
Proc. No. 3497, 27 Fed. Reg. 9681 (1962); E.O. 11053, 27 Fed. Reg. 9693 (1962). See United States v. Barnett, 346 F.2d 99 (5th Cir. 1965). [Back to text]
265
Proc. 3542, 28 Fed. Reg. 5707 (1963); E.O. 11111, 28 Fed. Reg. 5709 (1963); Proc. No. 3554, 28 Fed. Reg. 9861; E.O. 11118, 28 Fed. Reg. 9863 (1963). See Alabama v. United States, 373 U.S. 545 (1963). [Back to text]
266
Proc. No. 3645, 30 Fed. Reg. 3739 (1965); E.O. 11207, 30 Fed. Reg. 2743 (1965). See Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965). [Back to text]
267
1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 70, 97, 110 (rev. ed. 1937); 2 id. at 285, 328, 335–37, 367, 537–42. Debate on the issue in the Convention is reviewed in C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 82, 83, 84, 85, 109, 126 (1923). [Back to text]
268
E. Corwin, supra at 82. [Back to text]
269
L. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY ch. 4 (1948). [Back to text]
270
E. Corwin, supra at 19, 61, 79–85, 211, 295–99, 312, 320–23, 490–93. [Back to text]
271
United States v. Wilson, 32 U.S. (7 Pet.) 150, 160–61 (1833). [Back to text]
272
236 U.S. 79, 86 (1915). [Back to text]
273
236 U.S. at 90–91. [Back to text]
274
Armstrong v. United States, 80 U.S. (13 Wall.) 154, 156 (1872). In Brown v. Walker, 161 U.S. 591 (1896), the Court had said: “It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed.” Id. at 599, citing British cases. [Back to text]
275
Biddle v. Perovich, 274 U.S. 480, 486 (1927). [Back to text]
276
Cf. W. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 73 (1941). [Back to text]
277
Biddle v. Perovich, 274 U.S. 480, 486 (1927). In Schick v. Reed, 419 U.S. 256 (1976), the Court upheld the presidential commutation of a death sentence to imprisonment for life with no possibility of parole, the foreclosure of parole being contrary to the scheme of the Code of Military Justice. “The conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute.” Id. at 264. [Back to text]
278
23 Ops. Atty. Gen. 360, 363 (1901); Illinois Cent. R.R. v. Bosworth, 133 U.S. 92 (1890). [Back to text]
279
Ex parte William Wells , 59 U.S. (18 How.) 307 (1856). For the contrary view, see some early opinions of the Attorney General, 1 Ops. Atty. Gen. 341 (1820); 2 Ops. Atty. Gen. 275 (1829); 5 Ops. Atty. Gen. 687 (1795); cf. 4 Ops. Atty. Gen. 458 (1845); United States v. Wilson, 32 U.S. (7 Pet.) 150, 161 (1833). [Back to text]
280
Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however, within the same term of court, by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement of the pardoning power. United States v. Benz, 282 U.S. 304 (1931). [Back to text]
281
See 1 J. Richardson, supra, at 173, 293; 2 id. at 543; 7 id. at 3414, 3508; 8 id. at 3853; 14 id. at 6690. [Back to text]
282
United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872). See also United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870). [Back to text]
283
F. MAITLAND, CONSTITUTIONAL HISTORY OF ENGLAND 302–306 (W.S. Hein 2006) (1908); 1 Ops. Atty. Gen. 342 (1820). That is, the pardon may not be in anticipation of the commission of the offense. “A pardon may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867), as indeed President Ford’s pardon of former President Nixon preceded institution of any action. On the Nixon pardon controversy, see Pardon of Richard M. Nixon and Related Matters: Hearings Before the House Judiciary Subcommittee on Criminal Justice, 93d Congress, 2d Sess. (1974). [Back to text]
284
Ex parte Grossman, 267 U.S. 87, 113 (1925). [Back to text]
285
267 U.S. at 110–11. [Back to text]
286
267 U.S. at 121, 122. [Back to text]
287
71 U.S. (4 Wall.) 333 (1867). [Back to text]
288
71 U.S. (4 Wall.) at 334–35. [Back to text]
289
71 U.S. (4 Wall.) at 336, 375. [Back to text]
290
71 U.S. at 380–81. [Back to text]
291
71 U.S. at 397. [Back to text]
292
233 U.S. 51 (1914). [Back to text]
293
233 U.S. at 59. [Back to text]
294
142 U.S. 450, 453–54 (1892). [Back to text]
295
Knote v. United States, 95 U.S. 149, 153–54 (1877). [Back to text]
296
United States v. Klein, 80 U.S. (13 Wall.) 128, 143, 148 (1872). [Back to text]
297
The Laura, 114 U.S. 411 (1885). [Back to text]