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Fisher on the Supreme Court’s Expansion of Presidential Power

[Editor’s Note: We are grateful to Lou Fisher for sharing the following précis of his new book from the University Press of Kansas, Supreme Court Expansion of Presidential Power.]

The purpose of this book is to analyze Supreme Court decisions from 1936 (Curtiss-Wright) to the present time, to help understand how the Court through erroneous dicta, judicial deference, and idealizing the President has greatly expanded independent executive power in external affairs.  The result has been a weakening of the basic system of checks and balances and damage to the principle of self-government.

For nearly a century and a half, the Supreme Court did not recognize for the President a dominant role in the field of external affairs.  Decisions resulting from the Quasi-War with France underscored congressional authority.  Said the Court in Talbot v. Seeman (1801): “The whole powers of war being, by the constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry.”  When there was a conflict between a proclamation issued by President John Adams during the war and statutory policy, the Court in Little v. Barreme (1804) unanimously upheld Congress.  In subsequent decades, the Court regularly understood and defended the broad power of Congress over interstate commerce and immigration policy. 

Beginning with Curtiss-Wright in 1936, the Court began to recognize for the President “plenary and exclusive” powers over external affairs.  It did so by completely misreading a speech that John Marshall gave in 1800 when he served in the House of Representatives.   Although he referred to the President as “the sole organ of the nation in its external relations,” the full speech made clear that President Adams was not operating on the basis of some kind of inherent or independent authority beyond the control of Congress.  Instead, he was simply carrying out the Jay Treaty by transferring to England a British citizen charged with murder.  Adams was not singlehandedly making the law; he was implementing it, which was his constitutional duty.  In The Struggle for Judicial Supremacy (1941), Robert Jackson described Curtiss-Wright as “a Christmas present to the President.”

Subsequent decisions by the Supreme Court continued to favor presidential initiatives in the field of national security, coming at a time that began the most significant expansion in the power of the President in all of U.S. history.  Consider Ex parte Quirin in 1942.  President Roosevelt decided to try eight German saboteurs in a military tribunal instead of in civil court, charging the men with four crimes: one against the “law of war,” two against the Articles of War (81st and 82d), and one involving conspiracy.  The Court agreed to take the case toward the end of July without any lower court decisions.

With oral argument scheduled to begin on July 29, a district court the previous evening denied a writ of habeas corpus for the Germans.  Oral argument began with no decision by the D.C. Circuit.  The Justices were poorly prepared to hear the case.  Briefs submitted by the two sides are dated the same day that oral argument began.  On the second day, papers from the D.C. Circuit reached the Court at 11:59 a.m., along with a petition for certiorari.  One minute later the Court convened, granted cert, and issued a per curiam allowing the tribunal to continue.  The per curiam lacked any analysis, reasoning, and legal justification.  The Court explained that it was acting “in advance of the preparation of a full opinion which necessarily will require a reasonable period of time for its preparation.”

The full opinion came three months later, after six of the men had been tried, found guilty, and electrocuted.  Chief Justice Harlan Fiske Stone, tasked with writing the opinion, found it very difficult to support the administration’s construction on legal matters, including the Articles of War.  He feared that two of the saboteurs given prison sentences could later raise legal questions, which “would not place the present Court in a very happy light.”  When the full opinion was released, the Court conceded that “a majority of the full Court are not agreed on the appropriate grounds for decision.”

As to President Roosevelt acting inconsistently with the Articles of War, Alpheus Thomas Mason in an article for the Harvard Law Review in 1956 remarked that the Court’s involvement in the trial “through their decision in the July hearing practically compelled them to cover up or excuse the President’s departures from customary practice.”  Justice Douglas, in an interview on June 9, 1962, expressed regret with the Court’s performance in this case: “I think to all of us that it is extremely undesirable to announce a decision on the merits without an opinion accompanying it.  Because once the search for the grounds, the examination of the grounds that has been advanced is made, sometimes those grounds crumble.”  In a dissenting opinion in Hamdi v. Rumsfeld (2004), Justices Scalia and Stevens referred to the Nazi saboteur case as “not this Court’s finest hour.”

In the Japanese-American cases, a unanimous Supreme Court in Hirabayashi v. United States (1943) upheld a curfew order directed at all persons of Japanese ancestry within a designated military area.  The policy resulted from an executive order issued by President Roosevelt, ratified by Congress a month later.  Writing for the Court, Chief Justice Stone said that the curfew order issued by General John L. DeWitt represented the “exercise of his informed judgment.”  The judgment was not informed.  DeWitt believed that all Japanese, by race and blood, are disloyal.  Deferring to a military judgment might be justified.  Deferring to racism is not.

Roosevelt’s executive order led to the transfer of Americans of Japanese descent to what were euphemistically called “relocation centers.”  Without evidence of disloyalty or subversive activity, they were imprisoned solely because of race.  A 6-3 Court in Korematsu v. United States (1944) upheld this general policy.  On the same day that the Court decided Korematsu, it released a ruling on Mitsuye Endo.  She petitioned for a writ of habeas corpus as a loyal and law-abiding citizen.  The Justice Department agreed with her position but wanted to hold her for an additional period.  A unanimous Court held that she was entitled to unconditional release.  Contrary to earlier statements by the Roosevelt administration, the executive branch had full capacity to distinguish between loyal and disloyal Japanese Americans.

In an article in the New York University Law Review in 1962, Chief Justice Earl Warren suggested that in times of emergency the judiciary could not function as an independent and coequal branch.  As a result, other agencies of government “must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution.”  Then came this provocative sentence: “To put it another way, the fact that the court rules in a case like Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.”  In short, the Court held that the government’s action was constitutional when it was not.

In Knauff v. Shaughnessy (1950), the Supreme Court deferred to executive judgments about deporting Ellen Knauff.  Neither the district court, the Second Circuit, or the Supreme Court objected to basing her exclusion on confidential information withheld from her attorney and federal judges.  In memorable language, Justice Jackson in his dissent warned: “Security is like liberty in that many are the crimes committed in its name.”  A number of newspapers came to her defense, as did Representative Francis Walter.  On August 29, 1951, an immigration appeals board held there was not adequate evidence to justify her exclusion.  The administration had relied on pure hearsay from three witnesses.  On November 2, 1951, Attorney General J. Howard McGrath approved the decision of the appeals board and Ellen Knauff was released from Ellis Island to begin her life in America.

The state secrets privilege is guided by the Supreme Court’s 1953 decision in United States v. Reynolds.  Three widows sought an accident report from the government after their husbands died in the crash of a B-29 bomber.  The district court and the Third Circuit insisted that the judiciary be given access to the report to be read in camera.  They fully understood their constitutional duty to personally examine documents claimed by the executive branch to contain confidential information.  As the Third Circuit noted, it would be a small and easy step “to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officers.”

Without looking at the accident report, the Supreme Court held for the executive branch.  The Court reasoned that with regard to disclosing documents, a court “must be satisfied from all the evidence and circumstances” before it decides to accept the claim of privilege.  Unless a court independently evaluates documents it has no “evidence” to make a judgment other than self-serving and possibly misleading assertions from executive officials.  The Court cautioned that judicial control “over the evidence of a case cannot be abdicated to the caprice of executive officers.”  If executive officials did act capriciously, as they did in Reynolds, a court would have no way of knowing that unless it independently examined the documents.  The Court chose to serve not justice but the executive branch.

The Court was divided 6-3.  One would expect the dissenters (Black, Frankfurter, and Jackson) to expose weaknesses in the majority opinion.  They did not.  Nothing in the dissent said anything about what the majority wrote.   Instead, they dissented “substantially for the reasons set forth in the opinion of Judge Maris below” in the Third Circuit.  Obviously, Maris had no idea what the Supreme Court would decide and the reasons it would offer.

In 1995, the accident report was declassified and the three families gained access to it in 2000.  They and their attorneys discovered that the report contained no state secrets but abundant evidence that the B-29 had serious mechanical problems and should not have been allowed to fly.  The widows returned to court with a writ of coram nobis, charging that the executive branch had committed fraud on the judiciary.  After they lost in district court and the Third Circuit, the Supreme Court denied cert.

During the administration of George W. Bush, the Supreme Court issued a number of decisions in Hamdi, Rasul, Hamdan, and Boumediene that pushed back against policies and constitutional interpretations by the executive branch.  What explains this record of judicial assertion and independence?  Much of the reason comes from reading the oral argument on April 28, 2004, in the cases involving Yaser Esam Hamdi and Jose Padilla.  Both were U.S. citizens, but the administration labeled them as “enemy combatants” and denied them due process or any procedural safeguards.

Throughout the two hearings, Justices asked numerous questions to Deputy Solicitor General Paul Clement about methods of interrogation.  Were detainees being abused?  Clement assured the Court that not only was the administration complying with the treaty against torture, but abusive methods do not produce reliable information.  Interrogators understand that they need to develop “a relationship of trust.”  Pressed by other Justices, Clement told the Court that if anyone under U.S. authority committed abuse on detainees they would be tried before a court-martial.  Later that evening, people around the world saw photos of how the U.S. treated prisoners at the Abu Ghraib detention center in Iraq.  The Justices discovered that they could not depend on assurances from a top official in the Justice Department.

After the 9/11 terrorist attacks, the Bush administration relied heavily on the state secrets privilege to justify various actions, including taking individuals abroad for interrogation and torture (“extraordinary rendition”).  When President Obama entered office, he said the state secrets privilege had been overused and promised new safeguards to avoid executive abuse.  However, on April 29, 2011, the Justice Department advised Congress that no change was warranted with respect to asserting the state secrets privilege in pending cases, including the extraordinary rendition cases of Khaled El-Masri, Maher Arar, and Jeppesen Dataplan.  Moreover, the Obama administration applied the privilege to new cases involving NSA surveillance (Shubert v. Obama).  In defending the use of drones to kill U.S. citizens abroad (Al-Aulaqi v. Obama), the administration withheld from the public various legal memos that sanctioned targeted killings by drones.

On July 23, 2013, the D.C. Circuit in Zivotofsky v. Kerry relied five times on the sole-organ doctrine to hold that legislation passed by Congress in 2002 “impermissibly infringes” on the President’s power to recognize foreign governments.  In response to that decision, I filed an amicus brief with the Supreme Court on July 17, 2014, asking it to correct the erroneous dicta in Curtiss-Wright that had expanded presidential power in external affairs and damaged the system of checks and balances.

In Zivotofsky v. Kerry (2015), the Supreme Court finally jettisoned the sole-organ doctrine that had expanded presidential power for 79 years.  In doing so, it created a close substitute by attributing to the President not only the property of “unity” but four other qualities they borrowed from Alexander Hamilton’s Federalist No. 70: decision, activity, secrecy, and dispatch.  Nowhere in the decision is there recognition that those same five qualities can lead to presidential initiatives that do extensive damage to the country and its constitutional system.

Consider the record after World War II.  Truman took the country to war against North Korea by seeking approval not from Congress but from the U.N. Security Council, directly contrary to the U.N. Participation Act.  Truman allowed General MacArthur to move troops toward Manchuria, prompting the Chinese to intervene and leading to a costly stalemate.   Johnson escalated the war in Vietnam.  Nixon became involved in Watergate and left office.  Reagan risked impeachment with Iran-Contra.  Clinton took military action in Bosnia and Kosovo without congressional authority.  Bush went to war against Iraq in 2003 on the basis of six claims that it possessed weapons of mass destruction, with all six claims found to be empty.  Obama ordered military action against Libya, relying on a Security Council resolution, not on congressional authority, leaving behind a country broken legally, economically, and politically.  In the Harvard Law Review in 2015, Jack Goldsmith analyzed the Supreme Court’s ruling in Zivotofsky, concluding there should be little doubt that executive branch lawyers will exploit the Court’s “untidy reasoning” and interpret its “pro-executive elements for all they’re worth.”


About the Author

is Scholar in Residence at The Constitution Project and Visiting Scholar at the William and Mary Law School. From 1970 to 2010 he served as Senior Specialist in Separation of Powers at Congressional Research Service and Specialist in Constitutional Law at the Law Library of Congress. He has testified before congressional committees more than 50 times on a range of constitutional issues, including war powers, spending powers, congressional oversight, the intelligence community, legislative vetoes, item vetoes, pocket vetoes, the Gramm-Rudman deficit control act, biennial budgeting, balanced budget amendment, presidential reorganization authority, recess appointments, executive privilege, NSA surveillance, state secrets privilege, and whistleblower protection. Author of 25 books and more than 500 articles, his most recent book is “Supreme Court Expansion of Presidential Power: Unconstitutional Leanings” (University Press of Kansas, 2017). Many of his articles and congressional testimony are available on his personal webpage, http://www.loufisher.org.