Starting with the Curtiss-Wright decision in 1936 and carrying forward to Zivotofsky v. Kerry in 2015, the Supreme Court has resorted to erroneous dicta and deference to promote independent executive power in external affairs. These judicial misconstructions have done severe damage to basic constitutional principles, including checks and balances and self-government.
The bias toward presidential power did not appear on the Court for the first century and a half. Litigation resulting from military action against France, beginning in 1798, gave full appreciation to the constitutional authority of Congress. In Talbot v. Seeman (1801), the Supreme Court was guided by this principle: “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.” In a subsequent case, Little v. Barreme (1804), the Court had to decide a conflict between the statutory policy of Congress and a conflicting proclamation issued by President John Adams after the war began. In a unanimous decision, the Court held that congressional policy must prevail. In subsequent decisions, the Court recognized the express constitutional power of Congress over foreign commerce, including its application to immigration policy.
Curtiss-Wright in 1936 should have been a simple matter of upholding the authority of Congress to delegate to the President power to impose an arms embargo in a region of South America. The Court upheld the delegation, but proceeded to announce that the President’s power over external affairs was “plenary and exclusive,” a position that is easily refuted simply by reading the text of the Constitution. The Court’s position might appear to have some merit because it relied on a speech that John Marshall gave in 1800 when he served in the House of Representatives—a year before he would become Chief Justice of the Supreme Court.
Although Marshall did refer to the President as “the sole organ of the nation in its external relations,” anyone reading the entire speech would understand that President Adams was not exerting some type of plenary power beyond congressional control. He was simply carrying out a provision in the Jay Treaty when he transferred to England a British citizen charged with murder. Adams was not independently making law; he was carrying it out.
IN LITTLE V. BARREME (1804), THE COURT HAD TO DECIDE A CONFLICT BETWEEN THE STATUTORY POLICY OF CONGRESS AND A CONFLICTING PROCLAMATION BY PRESIDENT JOHN ADAMS. THE COURT UNANIMOUSLY HELD THAT CONGRESSIONAL POLICY MUST PREVAIL.
The Nazi saboteur case of Ex parte Quirin (1942) marks another judicial step in promoting independent presidential power in external affairs. Eight Germans entered the country for the purpose of carrying out sabotage. Initially they were to be tried in civil court, but President Roosevelt decided to bring them before a military tribunal. The Court agreed to hear arguments about the constitutional issue without guidance from any decision by the lower courts. Oral argument was scheduled to begin on July 29.
On the previous evening, a district court denied a writ of habeas corpus for the Germans. Oral argument proceeded without a decision by the D.C. Circuit. Briefs submitted by the two sides were dated the same day that oral argument began, underscoring how poorly prepared the Justices were to understand the issues at hand. 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 that permitted the tribunal to continue.
The per curiam provided no analysis, reasoning, or legal justification. The Court decided to act “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. Two were given prison sentences. The full opinion acknowledged that “a majority of the full Court are not agreed on the appropriate grounds for decision.” In a subsequent interview on June 9, 1962, Justice Douglas criticized the Court’s action: “I think to all of us that it is extremely undesirable to announce a decision on the merits without an opinion accompanying it.” In their 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, the Supreme Court in Hirabayashi v. United States (1943) unanimously upheld a curfew order directed against all persons of Japanese ancestry who lived within a designated military area. An executive order by President Roosevelt created this policy and Congress passed legislation a month later to ratify it. For the Court, Chief Justice Stone announced that the curfew order issued by General John L. DeWitt represented the “exercise of his informed judgment.” It was not informed. To DeWitt, all Japanese by their race and blood were disloyal. The Court here was not deferring to a military judgment—It was deferring to racism.
Roosevelt’s executive order also transferred Americans of Japanese descent to “relocation centers” located in various states. They were imprisoned not on grounds of disloyalty or subversive activity but solely for reasons of race. A 6-3 Court in Korematsu v. United States (1944) upheld this policy. In subsequent litigation in the 1980s, Hirabayashi and Korematsu prevailed in court by demonstrating that the executive branch had committed fraud on the court by withholding key evidence.
CHIEF JUSTICE EARL WARREN CONCLUDED IN 1962 THAT, IN A TIME OF EMERGENCY, THE JUDICIAL BRANCH IS NOT COEQUAL OR INDEPENDENT. FOR THAT REASON, OTHER AGENCIES OF GOVERNMENT MUST BEAR THE BURDEN OF DETERMINING WHETHER ACTIONS TAKEN ARE CONSONANT WITH THE CONSTITUTION.
The scope of judicial deference to presidential power is underscored by Chief Justice Earl Warren in an article published in the New York University Law Review in 1962. He concluded that in a time of emergency the judicial branch was not independent or coequal. For that reason, other agencies of government “must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution.” For that reason, “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 other words, the Court ruled that the government’s action was constitutional when it was not.
In Knauff v. Shaughnessy (1950), the Supreme Court again deferred to the executive branch in deciding to deport Ellen Knauff. It did not matter to the district court, the Second Circuit, or the Supreme Court that her exclusion rested on confidential information withheld from her attorney and federal judges. In his dissent, Justice Jackson raised this objection: “Security is like liberty in that many are the crimes committed in its name.” On August 29, 1951, an immigration appeals board concluded there was inadequate evidence to justify Knauff’s exclusion. On November 2, 1951, Attorney General J. Howard McGrath agreed with that decision and she was released from Ellis Island to begin life in America.
The state secrets privilege depends heavily on the Supreme Court’s 1953 decision in United States v. Reynolds. In this lawsuit, three widows sought the government’s accident report to determine the government’s responsibility for the death of their husbands in the crash of a B-29 bomber. In lower court, both the district judge and the Third Circuit agreed it was essential that the judiciary receive the report to be read in camera. It was necessary for independent courts to read and analyze documents the executive branch withheld from plaintiffs because they contained confidential information. As the Third Circuit explained, the government could too easily “assert a privilege against any disclosure of records merely because they might prove embarrassing to government officers.”
That fundamental principle was not followed by the Supreme Court. Without examining the report, the Court held for the executive branch. Inconsistently, it claimed that on the issue of access to sensitive documents, a court “must be satisfied from all the evidence and circumstances” before it decides to accept the claim of privilege. But unless a court independently evaluates a document it is at risk of being deceived by self-serving and misleading executive claims. The Court announced that judicial control “over the evidence of a case cannot be abdicated to the caprice of executive officers.”
But how would the Court reach that judgment unless it required that a sensitive document be made available to Justices for their independent analysis? In deciding the case in this manner, the Court served the executive branch, not justice. Three dissenters (Black, Frankfurter, and Jackson) provided no evaluation of the majority opinion. Instead, they merely dissented “substantially for the reasons set forth in the opinion of Judge Maris below” in the Third Circuit.
In 1995, the executive branch declassified the B-29 accident report. Five years later, the widows and their attorneys gained access to it. In reviewing the report, they discovered that it contained no state secrets at all. What it did disclose was clear evidence that the plane had such serious mechanical problems the government should not have allowed it to fly. The widows decided to file a claim of coram nobis, charging the executive branch with fraud on the judiciary. After they lost in district court and the Third Circuit, the Supreme Court denied cert.
ON APRIL 29, 2011, THE JUSTICE DEPARTMENT EXPLAINED THAT THE STATE SECRETS PRIVILEGE WAS BEING APPROPRIATELY INVOKED IN PENDING CASES.
From 2004 to 2008, Supreme Court decisions in Hamdi, Rasul, Hamdan, and Boumediene repeatedly rejected a number of broad constitutional claims offered by the executive branch regarding presidential power. This assertion of judicial independence is explained in part by reviewing oral argument on April 28, 2004, in the cases involving Yaser Esam Hamdi and Jose Padilla. Although they were U.S. citizens, the administration referred to them as “enemy combatants” without access to standard procedural safeguards.
During the two hearings, Justices asked Deputy Solicitor General Paul Clement about methods of interrogation. Were detainees subject to abuse? He advised the Court that the administration complied fully with the treaty against torture and understood that abusive techniques do not produce reliable information. Those who question detainees realized the importance of developing “a relationship of trust.” In response to other questions, Clement explained that if any U.S. interrogator abused detainees they would be brought before a court-martial. After oral argument had concluded, later that evening there were photos available to people around the world showing how the United States treated prisoners at the Abu Ghraib detention center in Iraq. The Justices learned they could not depend on testimony from a top official in the Justice Department.
Following the 9/11 terrorist attacks, the Bush administration invoked the state secrets privilege to justify various actions by the executive branch. Some of the litigation focused on the practice of taking individuals from the United State to other countries for abusive interrogation, a policy called “extraordinary rendition.” After President Obama took office, he announced that the state secrets privilege had been overused by the Bush administration, requiring new safeguards to avoid executive abuse. However, on April 29, 2011, the Justice Department explained that the state secrets privilege was being appropriately invoked in pending cases, including the extraordinary rendition cases of Khaled El-Masri, Maher Arar, and Jeppesen Dataplan. The administration also relied on the privilege for cases involving NSA surveillance (Shubert v. Obama).
In 2013, the D.C. Circuit in Zivotofsky v. Kerry invoked the erroneous sole-organ doctrine five times to conclude that statutory language enacted in 2002 “impermissibly infringes” on the President’s power to recognize foreign governments. In response, I filed an amicus brief with the Supreme Court on July 17, 2014, asking it to correct the erroneous dicta in Curtiss-Wright because it had improperly promoted independent presidential power in external affairs and led to a weakening of constitutional checks and balances.
In Zivotofsky v. Kerry (2015), the Supreme Court finally rejected the sole-organ doctrine but adopted a replacement model that attributed to the President not only the property of “unity” but four qualities they found in Alexander Hamilton’s Federalist No. 70: decision, activity, secrecy, and dispatch. The Court failed to understand that those same five qualities have produced presidential initiatives that led to severe damage to public policy and constitutional values.
Louis Fisher is a Scholar in Residence at The Constitution Project and Visiting Scholar at the William and Mary Law School. He is the author of Supreme Court Expansion of Presidential Power: Unconstitutional Leanings (University Press of Kansas, 2017).