The emergency constitution

The emergency constitution

1. 
   What is the extent of the President’s emergency powers under the Constitution? Defining questions:
   
   1. 
      What extent can the president act without congressional power because of an inherent authority in times of war or crisis? Is his power expanded in these times?
      
   2. 
      What extent should the constitution be partially suspended during war or other emergencies--with respect to power and rights
      
   3. 
      What role should the courts play in this?
      
2. 
   During times of war and emergency in Constitutional democracies, the rights of the people shrink and executive power expands
   
3. 
   Powers the president should have:
   
   1. 
      Defend the country against a surprise attack
      
   2. 
      Constitutionally granted power v. realistic power limits
      
   3. 
      Paper powers: explicit presidential powers in emergencies
      
   4. 
      Congressional powers
      
      1. 
         Power to suspend habeas corpus
         
      2. 
         Power to call up a militia
         
   5. 
      Way to deal with emergency: separate the institution that declares the emergency from the one that exercises the emergency powers
      
   6. 
      Court’s view: Most guidance we have is the courts have said in dicta that president would be justified in using emergency powers to repel surprise attack
      
4. 
   Lincoln during the civil war
   
   1. 
      Splits the difference between cosntitutionalizing emergency powers and keeping them illegal and expect president to violate them in real emergencies (Jackson position)
      
   2. 
      Congress approves Lincoln’s actions after he takes them
      
   3. 
      Worry: In Latin America, presidents declare decades-long states of emergencies, cutting out legislature, rule by decree
      
   4. 
      Jackson's position: might be less dangerous to add flexibility than to invite presidents to step outside the law, where all bets might be off
      
      1. 
         The law will stop mattering if they are expected to step outside of it
         
5. 
   Korematsu v. United States
   
   1. 
      Facts: Japanese and Chinese on W coast discriminated against after Pearl Harbor, FDR allows exclusion zones to be set up on the west coast, with a curfew for citizens and non-citizens on the basis on Japanese ancestry. Korematsu has a white girlfriend, is 23, has plastic surgery to try to get out of this. He challenged the assumptions underlying the order and claimed that when the exclusion order was enacted, all danger of Japanese invasion of the exclusion area had disappeared.
      
   2. 
      Holding: The exclusion order under which petitioner was convicted was valid and, thus, upheld the conviction. The exclusion order was justified by the exigencies of war and the threat to national security.
      
   3. 
      Rationale: Because the order curtailed the rights of a group based on national origin, the order was inherently suspect and rigid scrutiny was applied. The Court found that the exclusion order, like a previously upheld curfew order, was intended to prevent espionage and sabotage in threatened areas during war. The exclusion from such an area was closely related to the intent of the order. Moreover, the Court could not reject the judgment of the military and Congress that there were disloyal members of the population who constituted a menace to the national defense and safety. Compulsory exclusion of groups of citizens from their homes, except under circumstances of direst emergency and peril, was inconsistent with the basic governmental institutions.
      
   4. 
      Dissent: SCOTUS shouldn’t pretend to conduct judicial review of constitutional rights during wartime if the court is not willing to uphold the constitution. This creates dangerous precedent: it is better to exercise actions extra-constitutionally than to exercise them and use the constitution to justify them during non-emergency times
      
      1. 
         There is a risk that if the court decides rights one way during wartime, that constrained version could be pulled over into peacetime, though that isn't the type of rights we want in peacetime (this hasn’t happened)
         
6. 
   Why do rights shrink during wartime?
   
   1. 
      Court reluctant to enforce rights it knows the president won't pay attention to: if this happens in war, and spills over into peace, court might never be able to stand up to the president--more likely president will take them seriously if they stick to enforcing rights the president will listen to
      
   2. 
      Judges don't feel that they have the expertise to judge a military decision (Posner)--tradeoff between security and rights, and in order to balance, need to know more about security than they do
      
7. 
   People’s view changes depending on if pre-crisis, during crisis, and post-crisis
   
8. 
   Security paradox:
   
   1. 
      Post 9/11, no terrorist attack on US after Bush
      
   2. 
      Civil Libertarians: All a mistake, outrageous measures interfering with rights, and he didn't need to, because no more attacks
      
   3. 
      Executive Branch: if we hadn't done these things, there would have been a ton of more attacks
      
9. 
   Posner: executive unilateralist
   
   1. 
      Balance costs and benefits of certain actions, and then decide where to go from there
      
   2. 
      In contract to originalism or textualism
      
   3. 
      Places some limitations on what courts do; see judges as doing exactly what legislators do: policy analysis, not taking the values of the framers, but forward-looking decision-making
      
   4. 
      Posner in the same camp as Dworkin: judges have no choice but to make forward-looking decisions
      
      1. 
         Conservative with Dworkin on a living Constitution
         
10. 
    Civil libertarians: regardless of what terrible things happen, we need to adhere to the time-honored principles the founders decided for us
    
11. 
    Cole: constitutional theory of precommitment
    
12. 
    Issacharof and Pildes: courts should be following Youngstown
    
    1. 
       Don’t enforce rights against the President, just require that whatever the President does has to be authorized by Congress; if it hasn’t, don’t let the President do it!
       
13. 
    Ex Parte Kieran
    
    1. 
       Facts: Group of Nazi saboteurs that are not US citizens (save one) found in Ohio
       
    2. 
       Court finds a statute that contemplates using military commissions during wartime, and thus approves this