Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part III)

The battle over the National Bank was another interesting issue in our history. Congress and President Washington passed a law to implement a National Bank that was a controversial and bitter battle. However, the Court did not rule on its Constitutionality for nearly 20 years in McCulloch v. Maryland (1817). Chief Justice Marshall upheld the law as Constitutional by adhering to many of Alexander Hamilton’s arguments when Congress first passed the legislation 20 years earlier. But in the 1830s President Andrew Jackson vetoed the passing of legislation for a Second National Bank with a note declaring the act was unconstitutional. Jackson was completely within his right to act as he did. So, even if Congress and SCOTUS are in agreement, the Executive has some power to overcome their majorities with a veto (so long as both houses do not have a two-thirds majority to override the presidential veto). In fact, Congress used its Constitutional prerogative and failed to pass National Bank Legislation in 1811 and 1817. The National Bank issue displayed that different Constitutional interpretations by the different branches of government were acceptable and totally within their powers and prerogative to do so.

The modern Court and Executive generally battle over War Powers. The Court ruled against the Bush Administrations war on terror several times: Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boomediene v. Bush (2008). In Hamdi the Court recognized that the Executive could detain enemy combatants but declared the prisoners had a right to due process. Similarly, in Rasul the Court held that enemy combatants could petition federal courts for a writ of habeas corpus. In Hamden, the Court declared that the Bush Administration had no right to order military tribunals. As a result, Congress passed the Military Commissions Act (MCA) in 2006 but in Boomediene the Court held that the MCA was unconstitutional because it allowed for a suspension of a writ of habeas corpus for detainees. There is little doubt that the Court in the above cases were influenced by Abu Ghraib and the use of enhanced interrogation techniques. But the Constitution holds that the president is Commander in Chief and has total war time authority, not the Courts since the President is privy of national security information that the Court would not know. Of course, this may explain why the Supreme Court had a history of honoring hundreds of egregious Executive War Time measures and powers prior to 9/11: Dozens of cases over the Espionage Act of 1917, Korematsu v. United States (internment of Japanese-Americans, 1942), Ex parte Quirin (1942), Johnson v. Eisentrager (1950), and Campbell v. Clinton (1999) to name a few. In Campbell, the Court held that Congress had no standing to sue the president for violating the War Powers Resolution by moving unilaterally into war without Congressional approval. Of course, many presidents have violated this provision of the Constitution including Harry Truman in Korea. In Quirin, the Court held that military tribunals used to convict and execute eight Germans captured in WWII was constitutional. In Eisentrager, the Court held that U.S. Courts had no jurisdiction over German prisoners of war held in Germany. From these cases, one would conclude that if Lincoln could suspend a writ of habeas corpus for U.S. citizens, Bush could suspend a writ of habeas corpus for non-citizen detainees; if Wilson could imprison American citizens for practicing their First Amendment rights, then Bush could indefinitely detain any enemy combatant for violating the rights of American citizens; if the Courts had no jurisdiction over detainees in Germany, then the Courts should have no jurisdiction over detainees in Guantanamo; if FDR could detain American citizens indefinitely without a writ of habeas corpus, then Bush could detain enemy combatants indefinitely without a writ of habeas corpus; if military tribunals were allowed for enemy detainees in WWII, then they should be allowed for terrorists 60 years later; and if Bill Clinton and Harry Truman could violate the Constitution and move unilaterally to go to war to protect national security, then Bush could move unilaterally to define the laws of war against terrorists to protect national security. These Bush terrorism cases protected the rights of non-citizen war criminals at the expense of the rights of American citizens. In fact, most War Powers disputes brought before the High Court have resulted with no decision. In cases such as Goldwater v. Carter and Crockett v. Reagan (1982) the Court said these were political questions where the Court has no jurisdiction over disputes between Congress and the Executive branches. Furthermore, the most disturbing part of the Supreme Court decisions overturning Bush anti-Terrorism policies was how the Court provided non-citizens with the rights of American citizens. Moreover, enemy combatants were provided more rights than persons serving in our military. In fact, in Solorio v. United States (1987) the Court held military court-martial trials only depend on the status of the accused being in the military. In other words, a member of the military would face military court-martial trials for offenses that occur outside the realm of the military. Remember, military courts do not have to satisfy all the procedural protections for the accused as required in federal constitutional courts afforded to enemy combatants. What’s worse, enemy combatants are not prisoners of war. Enemy combatants violate the rules of war and not only hide behind innocent civilians but commit war atrocities and crimes against their enemies including civilians. Why should enemy combatants receive a federal trial whereas United States military personnel committing acts similar to those of enemy combatants would face a court martial trial in a military tribunal?

There were many Congress and SCOTUS battles over individual liberties and civil rights. The Court in 1883 overruled the Civil Rights Cases (Civil Rights Act of 1866 and 1875). It took another 80 years for Congress to pass the Civil Rights Act of 1964. The Court would undo the harm it inflicted in 1883 in the 1954 case Brown v. School Board. In Bradwell v. Illinois (1873) the Court denied women the right to practice law, but five years later Congress passed legislation overruling the Court decision. In Mueller v. Oregon (1908) and West Coast Hotel v. Parrish (1937) the Court placed hour and wage limits only on women to remove them from the workforce. In Goldman v. Weinberger (1985) the Court held that military dress codes could not be violated even for religious purposes such as wearing a yarmulke or turban. Within a year Congress passed legislation to correct this error. Goldman v. Weinberger was a classic case of Constitutional Avoidance which is doctrine where the Court rules on cases based on statutory regulations instead of over Constitutional issues. In Goldman v. Weinberger, the Court avoided the Constitutional issue of Religious Liberty and instead ruled on the Air Force statutory dress code. Other than religious freedom Constitutional avoidance has been used in disputes over state and municipal immunity, the right to travel, and fugitives from justice. One final example of Constitutional avoidance was in Puerto Rico v. Branstad (1987). The Constitution says fugitives must be returned to the State with jurisdiction over the crime and it makes no mention of territories such as Puerto Rico. But in this case, the Court held fugitives can be returned to territories based on language in the 1793 statute which mentions territories and therefore the Court avoided the question as it applies to the Constitution. Many scholars would argue High Court decisions over criminal defendant rights were also examples of Constitutional avoidance. In Mallory v. United States (1957), Miranda v. Arizona (1966), and United State v. Wade (1967) the Court protected criminal defendants using a Congress statute “Federal Rules and Criminal Procedure” instead of the Constitution. Of course, many saw the decision in these cases as providing criminals more rights than the victims. Moving on, in Department of Human Resources of Oregon v. Smith (1990) the Court held that drug laws were Constitutional even if they violated an Indian religious ritual to use peyote. Congress passed the Religious Freedom and Restoration Act (RFRA) of 1993 to combat the Smith decision. The Court fired back by ruling against RFRA in City of Boerne v. Flores in 1997 by inventing a new test of proportionality and congruence. In General Electric Company v. Gilbert (1976) the Court held that the company’s health care plan which did not include pregnancy complications did not violate the equal protection clause. Congress would add a provision to the Title VII of the Civil Rights Act to overrule the Court’s holding in Gilbert. In some cases, rights collide and Congress must pass legislation to overcome the dispute. For instance, in Zurcher v. Stanford Daily (1978) First Amendment and Fourth Amendment rights collided. In the case the Court ruled a warrant to search the Stanford Daily newspaper to find photos they took of a protest (Police wanted to ascertain evidence as to who attacked them during the protest) was Constitutional. Congress would later pass legislation making third party searchers for evidence available through a “subpoena first” before a warrant. A subpoena would allow the party to turn over pertinent materials without a search. Similarly, in United States v. Miller (1976) the Court held a warrantless search bank records of citizens was Constitutional. However, Congress passed the Right to Financial Privacy Act of 1978 which made third party searches of financial information illegal without a warrant.