The Presidency and the Constitution

Transcription

1 The Presidency and the Constitution

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3 The Presidency and the Constitution: Cases and Controversies Michael A. Genovese Loyola Chair of Leadership, Loyola Marymount University and Robert J. Spitzer Distinguished Service Professor of Political Science, SUNY Cortland

4 THE PRESIDENCY AND THE CONSTITUTION Michael A. Genovese, Softcover reprint of the hardcover 1st edition 2005 All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in 2005 by PALGRAVE MACMILLAN 175 Fifth Avenue, New York, N.Y and Houndmills, Basingstoke, Hampshire, England RG21 6XS Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin s Press, LLC and of Palgrave Macmillan Ltd. Macmillan is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN ISBN (ebook) DOI / Library of Congress Cataloging-in-Publication Data Genovese, Michael A. The presidency and the Constitution : cases and controversies / Michael A. Genovese, Robert J. Spitzer. p. cm. Includes bibliographical references and index. 1. Executive power United States Cases. 2. Constitutional law United States Cases. I. Spitzer, Robert J., 1953 II. Title. KF5050.A7G dc A catalogue record for this book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: August

5 Dedicated to Gabriela and Teresa

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7 Contents Preface ix About the Authors 1 Introduction 1 xi 2 Court President Clashes: The Cases of Abraham Lincoln, Franklin Roosevelt, and Bill Clinton 15 3 Separation of Powers 23 Marbury v. Madison (1803) 24 Youngstown Sheet & Tube Co. v. Sawyer (1952) 27 AFL-CIO v. Kahn (1979) 39 INS v. Chadha (1983) 42 Clinton v. City of New York (1998) 53 4 Selection/Election 59 Buckley v. Valeo (1976) 60 Bush v. Gore (2000) 64 5 Administrative Powers 71 Shurtleff v. United States (1903) 72 Myers v. United States (1926) 73 Humphrey s Executor v. United States (1935) 80 Nixon v. Fitzgerald (1982) 83 Harlow & Butterfield v. Fitzgerald (1982) 88 Mitchell v. Forsyth (1985) 92 Clinton v. Jones (1997) 95 6 Executive Privilege 99 United States v. Nixon (1974) 100 In re Grand Jury Proceeding (1998) 103 In Re: Bruce Lindsey (1998) 106 Cheney et al. v. U.S. District Court (2004) Congress 115 In re Neagle (1890) 116 In re Debs (1895) 117 U.S. v. Midwest Oil Company (1915) 120 Bowsher v. Synar (1986) Domestic Policy 133 Chicago & Southern Air Lines v. Waterman Steamship Corp. (1948) 133 New York Times Co. v. United States (1971) 136 United States v. United States District Court (1972) 143 Nixon v. Administrator of General Services (1977) 148 Snepp v. United States (1980) Budgeting/Economy 157 Brown v. Califano (1980) 157 City of New Haven v. U.S. (1987) Foreign Policy 163 United States v. Curtiss-Wright Export Corporation (1936) 164 United States v. Belmont (1937) 167 U.S. v. Guy W. Capps, Inc. (1953) 169 Zemel v. Rusk (1965) 172 Goldwater v. Carter (1979) 176 Dames & Moore v. Regan (1981) 179 Haig v. Agee (1981) 184 vii

8 viii CONTENTS 11 The War Power and the Commander in Chief 191 Bas v. Tingy (1800) 192 Talbot v. Seeman (1801) 192 Little v. Barreme (1804) 193 The Prize Cases (1863) 195 Ex Parte Milligan (1866) 198 Ex Parte Quirin (1942) 201 Korematsu v. U.S. (1944) 205 Mora v. McNamara (1967) 210 Dellums v. Bush (1990) 212 Hamdi et al. v. Rumsfeld, Secretary of Defense (2004) 215 Rasul et al. v. Bush; al Odah v. U.S. (2004) Conclusion 227 Glossary 231 Notes 233 Index 235

9 Preface The first and most important purpose of this book is to do something that, with one exception, 1 has not been done before: to bring together under one cover the important court cases that address the constitutional powers and limits of the American presidency. We do this mindful of two important qualifiers: that court cases alone do not define presidential power and authority, and that all three branches of government participate in the process of constitutional interpretation; that is to say, the courts do not possess a monopoly over the interpretation of constitutional meaning, despite popular impressions to the contrary. 2 Without question, a fulsome treatment of presidential powers arising from law would include not only court cases, but also statutory law enacted by the Congress, as well as executive orders and other issuances emanating from the executive branch. We deliberated, even agonized over whether to include such legal issuances, but ultimately decided against doing so, for both principled and pragmatic reasons. The principled reason informs us that, despite the shared nature of constitutional interpretation just referenced, the courts in the United States are nevertheless recognized as serving the pivotal interpretive and adjudicative role with regard to constitutional and legal authority. In recent decades, the rise of judicial activism of both the left and the right, and the country s increasing disposition to bring all manner of disputes to the courts for resolution, has resulted in a proliferation of important court rulings affecting the presidency. The unprecedented final resolution of the hotly disputed presidential election of 2000 in the case of Bush v. Gore and the three cases from 2004 regarding the legal status and rights of detainees held in connection with the ongoing war on terrorism exemplify the judiciary s singular role. In short, a case-law examination of the presidency is not only a useful but a necessary contribution to a fuller understanding of the presidency in the American separation-of-powers system. The pragmatic reason for our editorial decision was our desire to produce a book that was comprehensive yet limited in length and therefore accessible to many readers. Moreover, we wanted to do more than reprint edited cases. Thus, this book begins with two chapters that lay out the broad political and developmental context of presidential power and court interaction. The subsequent nine case chapters each have an introduction that offers main themes, and each case also has an introduction all of which, we hope, will make this book more user friendly, especially for those who have little experience with the often cumbersome text of court cases. Obviously, any meaningful inclusion of statutes, executive orders, and the like would have vastly expanded the size of this volume and inhibited our ability to offer pedagogical commentary. As it is, we have tightly edited these cases, focusing on that text that bears most directly on how the courts have viewed presidential power. Of the nearly fifty cases presented here, most are from the Supreme Court, but a few are lower federal court rulings whose decisions have been upheld on appeal and that have meaningfully addressed broader questions of presidential power. In addition, we warn the reader that matters of form and style in the writing of ix

10 x PREFACE court cases have changed over 200 years, so the reader will observe some stylistic differences in the cases. We wish to express our gratitude to those who have played a role in advancing this project. David Pervin has been an engaging, thoughtful, and committed editor for us at Palgrave Macmillan, and we extend to him our warmest and most sincere gratitude, as well as to Palgrave s Theresa Lee and Donna Cherry. Michael Genovese wishes to thank his research assistants, Melissa Branda, Theresa Tran, and Chris Zepeda, for their important contributions. Robert Spitzer similarly thanks Julío Fernandez, Deb Dintino, and Jerry O Callaghan for their important contributions, and also expresses special felicitations to Mellissa Mitchell, Shannon Long, and Skye Wilson. And we both reserve our most heartfelt admiration, gratitude, and love to our respective wives, Gabriela and Teresa, to whom this book is dedicated. We are just smart enough to realize how fortunate we are to have married these wonderful women.

11 About the Authors Michael A. Genovese (Ph.D. University of Southern California, 1979) holds the Loyola Chair of Leadership, is Professor of Political Science, and Director of the Institute for Leadership Studies at Loyola Marymount University. He has written sixteen books, including The Paradoxes of the American Presidency, Oxford University Press (2nd edition 2004, with Thomas E. Cronin); The Presidency and Domestic Policy, CQ Press (2000, with William W. Lammers), The Power of the American Presidency, , Oxford University Press (2001); The Presidential Dilemma, Longman (2nd ed. 2003), and The Encyclopedia of the American Presidency, Facts-on-File (2005). Professor Genovese has won over a dozen university and national teaching awards, and frequently appears as a political commentator on television and radio. He is also Associate Editor of the journal, White House Studies, has lectured for the United States Embassy abroad, and is editor of Palgrave Macmillan Publishing s, The Evolving American Presidency book series. In , he served as the President of Presidency Research Group of the American Political Science Association. Robert J. Spitzer (Ph.D. Cornell University, 1980) is Distinguished Service Professor of Political Science at the State University of New York, College at Cortland. His books include The Presidency and Public Policy (1983), The Right to Life Movement and Third Party Politics (1987), The Presidential Veto (1988), President and Congress (1993), Media and Public Policy (1993), The Politics of Gun Control (1995; 2nd ed. 1998; 3rd ed. 2004), Politics and Constitutionalism (2000), The Right to Bear Arms (2001), and Essentials of American Politics (co-authored, 2002; 2nd ed. 2005). He is also Series Editor for the book series American Constitutionalism for SUNY Press. In 2003 he received the State University of New York s Chancellor s Award for Excellence in Scholarship. Spitzer is the author of over 200 articles and papers appearing in many publications on a variety of American politics subjects, and is former President of the Presidency Research Group of the American Political Science Association. He also served as a member of the New York State Commission on the Bicentennial of the U.S. Constitution, and has testified before Congress on several occasions. xi