by Amanda DiPaolo. Lanham, Md.: Lexington Books-Rowman and Littlefield Publishers, Inc., 2009. 262pp. Cloth. $75.00/£44.95/€51.95. ISBN: 9780739138335. Paper. $29.95/£18.95/€21.95. ISBN: 9780739138342.
Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov.
Amanda DiPaolo, assistant professor of political science at Middle Tennessee State University, explains how in her first year of doctoral work at Syracuse University her teaching assistant duties were changed radically from Western Traditional Political Philosophy to Constitutional Law, “a topic I knew nothing about.” I think it is often the case that someone tossed into a new area can ask fundamental questions that might escape more seasoned academics. For DiPaolo, the dispute over the exercise of war powers by President George W. Bush after 9/11 caused her to wonder how federal courts weighed the merits of broad presidential power over the need to protect individual liberties. Examining the initial decisions by the Supreme Court in HAMDI (2004) and HAMDAN (2006), she did not see what some might have expected: deference to the President. Instead, the Court deferred to Congress and determined whether President Bush’s actions had been legislatively authorized.
DiPaolo then wondered if Justice Robert Jackson in his concurrence in YOUNGSTOWN (1952) “had been right all along. Does the Court defer to the political branches when they work together, even if it means our protected rights will be limited?” What should the Court be doing: grounding its decisions on what the Constitution provides, including rights available to individuals, or look to see if the two elected branches are on the same page? If the latter, this type judicial analysis should be of concern. The President and Congress could act in ways flatly unconstitutional, as when they enact sedition laws that punish individuals who criticize the three branches. Should courts routinely acquiesce to these joint judgments?
This abstract question took specific shape in 2006 during the hearing to confirm Samuel Alito as Justice of the Supreme Court. Senators on the Judiciary Committee asked him how he would evaluate presidential action to engage in warrantless foreign security surveillance. He suggested that a starting point would be Jackson’s concurrence and its three categories: “where the President acts with explicit or implicit congressional approval, where the President acts and Congress has not expressed its view on the matter one way or the other, and the final category, where the President exercises executive power . . . in the face of explicit or implicit congressional opposition to it” (p.1). Did the decision by President Bush to authorize warrantless surveillance fall in the last category because it violated the Foreign Intelligence Surveillance Act (FISA) of [*108] 1978, which required a warrant from the newly created FISA Court? DiPaolo adds: “What is interesting about Justice Alito’s answer is that he did not mention the Bill of Rights, or, more specifically, the Fourth Amendment’s protections against unreasonable search and seizure” (p.1). If Presidents and lawmakers jointly decided to violate the Fourth Amendment, would the Court be satisfied that they had both agreed to that policy? Under such conditions, the Court ignores the Constitution.
What DiPaolo finds in reviewing court cases on the war power is that the judiciary, “more often than not, will defer to the political branches of government when they are working together. This means that the Court has been less influenced by rights provisions and more concerned with the separation of powers, or congressional approval, of executive actions.” Under this analysis, rights-based claims “take a backseat” to judicial deference to the agreements worked out by the President and Congress (p.2).
Consider what happened during World War II when President Franklin D. Roosevelt issued an executive order to remove about 110,000 Japanese Americans from their homes on the west coast and place them in detention camps inland. About two-thirds were U.S. citizens. Congress passed legislation to support Roosevelt’s action. This is Jackson’s first category: the President acting with explicit or implicit congressional approval. In a decision widely condemned today, the Court in KOREMATSU (1944) upheld the detention policy. The Court said it adopted the standard of “strict scrutiny” in this case, but in fact it failed to apply that test because it deferred wholly to military judgments, with or without evidence to support the removal. The strict scrutiny standard requires independent judicial judgment, which did not occur in KOREMATSU. As DiPaolo points out, “a separation of powers approach to wartime judicial decision-making offers less protection to individuals than looking at the case through rights-based language and by answering the constitutional questions presented before the courts” (p.4).
Jackson’s concurrence in YOUNGSTOWN, while generally admired, creates a number of serious constitutional problems. DiPaolo identifies one: courts upholding actions by the federal government simply because the two political branches agree on policy. With that approach the Constitution goes out the window. A second problem is that the three categories are at most an initial orientation. Jackson admitted that his model was “over-simplified.” Try applying it to Bush’s warrantless surveillance plan. Critics objected that the plan violated FISA and therefore belonged in Jackson’s third category, where presidential power is at its “lowest ebb.” Defenders insisted that the plan was fully covered by the Authorization for Use of Military Force (AUMF), enacted shortly after 9/11, and deserved to be in the first category where presidential power “is at its maximum.” DiPaolo regards Jackson’s framework “as a useful guide for the adjudication of war-powers cases” (p.19). It is useful if the Supreme Court is looking for an easy and unprincipled escape. Often it is of no use in protecting constitutional rights and of no use in resolving a [*109] constitutional dispute, as is evident from Bush’s warrantless surveillance.
Chapter 6 focuses on free speech, and it is here that the Jackson concurrence is conspicuously dangerous. Just because the President and Congress endorse a particular policy does not mean it is constitutional and does not excuse the courts from exercising independent judgment. In reviewing cases involving the exercise of free speech during emergencies and wars, DiPaolo emphasizes that courts “often decide these First Amendment cases by answering the constitutional questions in contrast to my earlier case studies, where a separation of powers framework is prominent” (p.162). She covers the sedition laws of 1798, World War I, and the Smith Act of 1940, and also the years of repression during the investigations by Senator Joe McCarthy and the Cold War. The performance of federal courts during these periods was highly uneven, exhibiting little evidence of the judiciary acting as a reliable “guardian” of individual liberties. For DiPaolo, when individual rights, “guaranteed by the Constitution, are limited by executive action, we expect judicial challenges to be adjudicated using a rights-based discourse” (p.199). Reliance on the separation of powers model “is a way to protect both the Judiciary and the Constitution itself from overzealous justices who in a time of great panic might grant too much authority to the Executive, thus potentially damaging rights enumerated in the Constitution beyond repair after the end of hostilities” (p.199). In essence, DiPaolo would rather the courts avoid deciding cases when they see no independent role for themselves and must defer to decisions by elected officials or the military.
In several places I wish that DiPaolo had explored the source of presidential authority more carefully. It is true that Justice Grier in THE PRIZE CASES (1863) upheld Lincoln’s blockade of the South, but he did so only with the understanding that the country was in a civil war, not in a military conflict with another country. He said explicitly that the President “has no power to initiate or declare a war either against a foreign nation of a domestic State.” During oral argument, Richard Henry Dana, Jr. for the White House agreed that the President’s power did not include “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.” DiPaolo states that President Harry Truman “relied on authority from the U.N. rather than from a congressional declaration of war” (p.20). The UN Charter never envisioned the UN Security Council as a substitute for “authorizing” war. The President cannot through the treaty process (the UN Charter) strip Congress of its constitutional power to declare or authorize war. In various places DiPaolo suggests that Presidents must rely on their “own enumerated constitutional powers” (p.28). This notion of a constitution of enumerated powers appears elsewhere in the book (pp.5, 9). The framers never intended to limit each branch to express powers. Each branch has a broad variety of implied powers, including the implied power of Congress to investigate, the implied power of the President to remove department heads, and the implied power of federal courts to invalidate the actions of the two political branches and the states. [*110]
At the end of the book DiPaolo offers this thought: “In my suggesting that the Executive must find institutional legitimacy from a source outside its own authority granted in the text of the Constitution, I echo the likes of Richard Neustadt who several decades ago argued that the power of the president is found in the Executive’s ability to persuade” (p.213). The position of Neustadt, according to DiPaolo, was “restated by Arthur Schlesinger, Jr. who suggested that the power to manage the vast, whirring machinery of government derives from individual skills as persuader, bargainer, and leader” (p.213). However, both Neustadt and Schlesinger supported Truman’s unilateral decision to go to war against Korea. There was no effort to “persuade” Congress. Neustadt and Schlesinger were among the academics who glorified presidential power and had no interest in the constitutional system of legal constraints and checks and balances. See my article, “Scholarly Support for Presidential Wars,” in the September 2005 of PRESIDENTIAL STUDIES QUARTERLY (available at http:www.loc.gov/law/help/usconlaw/pfd/Fisher.scholars.pdf).
I agree with DiPaolo that, if the courts defer to Congress, “it is up to Congress to again reassert itself in reclaiming power away from the Executive.” In such cases “the courts will follow suit by reaffirming the need for the Executive to seek, and achieve, some sort of congressional approval of its war-powers policies” (p.214). This type of congressional reassertion requires lawmakers to understand the powers and duties of their institution and to take steps to protect legislative interests. Unfortunately, the record over the last six decades reveals a Congress regularly lacking in institutional awareness and will. Academics can help by explaining to students that structural checks are essential in protecting individual rights and liberties.
Fisher, Louis. 2005. “Scholarly Support for Presidential Wars.” 35 PRESIDENTIAL STUDIES QUARTERLY 590-607.
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).
THE PRIZE CASES, 2 Black (67 U.S.) 635 (1863).
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).
© Copyright 2010 by the author, Louis Fisher.