Supreme Court Cases Concerning Presidential Power-Arsalan Ahmad

“Four score and seven years ago…”, “I did not have sex with that young intern…”, “If the president says so, than it’s not illegal!”. These quotes were said by some of the most famous American presidents. The Executive has been shown throughout history has to have a great deal of power. Many Supreme Court cases have shown, however, that there comes a time where the president’s power may become too great and that restrictions must be placed. Furthermore, there are times where the degree of how much power the Executive truly possesses has come into question, and whether or not the President is subject to certain laws that the rest of American citizens are subject to. The following are five prevalent cases ranging over 100 years which have seen the issue of presidential power come into question and scrutiny.

The first of my major examples of these cases begins in 1866, with the case of Ex Parte Milligan. Lambdin P. Milligan, a citizen of the US, who had lived in Indiana for 22 years, was arrested by order of General Hovey, commander of the military district of Indiana, and kept in confinement. Milligan and his men were caught trying to set POWs in a Union Camp free and fight Union forces in the area. The primary concern about this case was whether or not military tribunals (military “commission”) – under which Milligan was subject to – were allowed to try citizens despite the fact civilian courts were in operation.
There were three primary questions the judges faced: should a writ of habeas corpus (suspended during the Civil War) have been issued?, Should Milligan have been released?, and Did the military commission have the jurisdiction to try Milligan?. The third of these questions was the most predominant, as Milligan was not a combatant, a resident of the “rebel” states, or a POW himself, but merely a civilian. There was great debate whether or not the fourth, fifth, and sixth amendments protect Milligan. Clearly his rights were violated when he was tried by a court not ordained and established by Congress and not delivered to the Circuit Court as law dictates. Furthermore, Milligan was denied trial by jury; the main justification was that martial law covered all the proceedings of the military commission, and that the commander of the military group has the jurisdiction in his military district.
The Supreme Court, however, recognized that martial law destroys every guarantee of the Constitution and allows the military to become independent to that of the civil power, and that could not be allowed. The final decision of the Court, however, was that suspension of habeas of corpus was legal, but the military tribunal had no authority over citizens who lived in the areas of the country that “upheld” the Constitution (like Milligan), and could not try citizens if civil courts were active, even if there was a war going on. And for those wondering about the fate of Milligan, his execution was not scheduled until after the war, so he was fortunate in having the chance to argue his case before the war concluded. .
HOLDING: Suspension of habeas corpus is unconstitutional when civilian courts are still operating; the Constitution provided for suspension of habeas corpus only if civilian courts are actually forced closed.

World War II, a difficult period for the United States, saw the action of many spies and agent trying to infiltrate enemy nations and undermine them from the inside. This happened in particular in the case of Ex Parte Quirin in 1942, in which eight German individuals (all except one man named Haupt were citizens of Nazi Germany – Haupt came to America when he was a child, and became a US citizen by virtue of naturalization and had not lost his citizenship), where they boarded a German sub and came to America with explosives and wearing German military uniforms (which they buried upon landing in New York). It was believed that they came on a sabotage mission. The men were later apprehended by the FBI and charged with: violation of the law of war, corresponding/giving intelligence to the enemy, offense of spying, and of conspiring to commit the previous three offenses.

The German men contended that the President was without any authority to order them to be tried by a military tribunal for any offense that they were charged with and were entitled to be tried in civil courts so they could be protected by the rights of having a jury (guaranteed by the 5th and 6th amendments). When it came to the Supreme Court, the main issue was that whether or not citizenship (of the seven out of eight men) protected them from a military tribunal. In the end, the Court felt that citizenship was not enough to exempt the accused petitioners from a tribunal as they were associating wit the military branch of an enemy country in time of war AND engaged in actions against the US.
The decision was as such:

…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

In the end, a secret military tribunal was brought together by FDR, which sentenced the eight men to death. Happy ending. However, it established as the precedent for military commissions dealing with unlawful enemy combatants.

HOLDING: The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States.

One of the most important cases relating to the president took place after the Watergate Scandal in 1972, where seven burglars broke into the Watergate Hotel and stole important, confidential documents. In 1974, by order of the special Prosecutor, Richard “Not A Crook!” Nixon released various transcripts that were edited as ordered by the subpoena. A subsequent hearing, motions were made to expunge the grand jury’s action of naming Nixon an unindicted coconspirator, which were denied by the District court. In response, Nixon’s counsel argued that the court lacked jurisdiction to issue the subpoena, due to the matter being an intra-branch dispute between a subordinate and superior officer of the Executive Branch and not subject to judicial resolution and that the federal courts should not intruding into areas committed to other branches of government. The Court, however, said that jusiticiability does not depend on such a “surface inquiry”.
Of course, Nixon tried to protect himself and resist on the ground of his duty to preserve the confidentiality of the communications of the President, and by using his “executive privilege”. Nixon’s counsel contended that the separation of powers doctrine precluded any judicial review of a President’s claim of privilege, and that if he did not prevail on the claim of that privilege, the court should has a matter of constitutional law that the privilege prevails over the subpoena. He also stressed the importance of protection of communications between Government officials and those who advise them. The Court, however,, felt that neither of those reasons could sustain an absolute Presidential of privilege from immunity from the judicial process.
In the end, the Court came to the decision that – in a unanimous decision – that the tapes that Nixon claimed were protected by executive privilege did indeed contain information relevant to the offenses charged in the indictment against Nixon; it would prevent full due process of law and “gravely impair the basic function of the courts”. Concerning the primary matter of the executive privilege, the Court rejected Nixon’s claim to it, and in all circumstances, the matter was subject to judicial review. The Supreme Court’s decision held that the Court had the power established in Marbury v. Madison to rule a law invalid for conflicting with constitutional provisions and the power to decide how the Constitution limits the President's powers.
HOLDING: The Supreme Court does have the final voice in determining constitutional questions; no person, not even the President of the United States, is completely above law; and the president cannot use executive privilege as an excuse to withhold evidence that is 'demonstrably relevant in a criminal trial.
Clinton v. Jones was decided in 1997, when Paula Corbin Jones filed a complaint against President Bill Clinton in 1994 against Clinton and one Danny Ferguson, a former Arkansas cop. In 1991, she lived in Arkansas when Clinton was the governor. She described the events that pushed her to file the complaint; in 1991, during a conference at a hotel in Little Rock, then-Governor Clinton delivered a speech, and Jones was a staff member of the hotel and Ferguson persuaded her to visit Clinton in a business suite where he made “abhorrent” sexual advances she rejected (Lewinski wasn’t the first, apparently). Furthermore, her colleagues at work changed her duties to punish for rejection of Clinton’s advances (supposedly), and after Clinton became president, Ferguson defamed her by making a statement to a reporter where he branded Jones as a liar.

Jones’ complaint included damages (totaling to $175,000) and contained four counts: first, that Clinton deprived her of right; second, that Clinton and Ferguson engaged in a conspiracy to violate her federal rights; third, that there was an intentional infliction of emotional distress; and fourth, for defamation (concerning the comments made by Ferguson to the press). It was established that whatever misconduct Clinton have done was unrelated to official duties as President as they occurred before his election. The suit, was filed in the U.S. District Court for the Eastern District of Arkansas, where it was ruled that a sitting President could not be sued and deferred the case until the conclusion of his term – at Clinton’s insisence. Beforehand, they denied the motion to dismiss th case on grounds of presidential immunity. However, they allowed that discovery of the case to proceed so the trial could begin as soon as Clinton left office.
Both Clinton and Jones appealed to the Court of Appeals. The judge, writing for the majority, said that the “Preisdent, like all other gocernment officials, is sbject ot the same laws that apply to all other members of other society”. They subsequently ruled in favor of Jones. Clinton asserted that the president, “in all but the most exceptional” cases, was afforded immunity (temprarily) by the Constitutionn. It did not stand however. Clinton then appealed to the U.S. Supreme Court, filing a petition for writ of certiorari. Fitzgerald vs. Nixon was brought up many times as a precedent, trying to support the idea that Clinton was allowed full immunity for his acts. Clinton also contended that this wass an infringement on the Executive Branch by the Judiciary, whereas the Court maintained that seperation ofpowers would not be violated.Both sides attempted to persuade Congress with history, recalling Jefferson and Adams, and even James Wilson, but Congress rejected immunity, as the President is subject to discipline by impeachment, not by private lawsuits for damages, but is otherwise subject to the laws for his purely private acts.
The Court maintained two propositions: first, that when the President takes official action, the Court has the authority to determine whether he has acted within the law, and second, that the President is subject to judicial process in appropriate circumstances. It was then “settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President”. The Court made its conclusion with a unanimous decision: Justice Stevens, in the majority opinion, ruled that seperation of powers does not mandate that federal courts delay private civil lawsuits against the presidnt until the end of his term; Justice Breyer argued that presidential immunity would apply only if the President could show that private civil lawsuit would interfere with his duties in a concurring opinion.
HOLDING: The Constitution does not protect the President from civil litigation involving actions committed before he entered office.

After the September 11th attacks, America was forever changed. President Bush’s administration pushed for two conflicts in order to hunt down the terrorist enemies responsible for the attacks. While the wars raged on, there was an intensified sense of paranoia and drive to subdue any enemy combatants that were operating within America itself. The PATRIOT Act, for example, was legislation that supported what was essentially the suspension of civil rights in order to apprehend suspected enemies. In 2004, the issue of how to treat a US citizen who was in enemy territory (and possibly taking up arms against America) after he was captured by American troops.
Yaser Esam Hamdi was an American citizen, born in Louisiana, but moved to Saudi Arabia as a child. He resided in Afghanistan by 2001, and was seized by the Northern Alliance, and handed over to American troops, and was transferred to Gitmo Prison, and later a brig in S. Carolina. The government considered him an “enemy combatant”, and that status justified holding him indefinitely. The case was sent to the District Court, which denied the government's motion to dismiss Hamdi's petition. It was because the evidence supporting Hamdi’s detention was based too much on hearsay, and it wouldn’t able to be submitted for judicial review.
The central issue for the Supreme Court (when the case was brought to them) was whether or not the Executive had the authority to detain a citizen who qualified as an enemy combatant. The “Authorization for Use of Military Force” (AUMF) authority allowed the President to use “All necessary and appropriate force” to defend the nation from those involved with the 9/11 attacks, but whether or not it could be used against a citizen of the US was the question. The Supreme Court, granted review and reversed the Circuit Court’s ruling of denying the Hamdi Petition.
In summary, the Court came to the conclusion that the Executive didn’t have the power to indefinitely detain a U.S. citizen without basic due process of law. Several opinions should be noted: Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his imprisonment.The two justices dissented from the plurality's ruling that AUMF allowed for Congressional authorization for the detention of unlawful combatants. Doctor Berry’s favorite Justice, Scalia, dissented, being joined with Justice Stevens, saying that the Exective should be restriced from the power of detention. joined by Justice Stevens, went the furthest in restricting the Executive power of detention. Finally, Justice Thomas sided with the government (the only one to do so) and said that the ruling of the Circuit court was necessary in light of security interests.

HOLDING: U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. Fourth Circuit Court of Appeals vacated and remanded.

Indeed, the President has a great deal of power. But these cases have shown that the Supreme Court has the power and has kept the Executive in line. Is the president truly above the law, or just a simple citizen like the rest of us good plebeians? It is a complex issue, but in the end, it is clear that despite any and every power the Executive has, s/he is a servant of the people, and of the Constitution of the United States, and therefore, is subject to both of them.

(MANY THANKS TO RACHEL ST FOR POSTING THIS! – Arsalan)