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In many of the canonical separation of powers cases, the Court seems to recognize that there is a non-delegation doctrine problem lurking in the background, but then goes on to resolve it on different grounds.

First, consider Humphrey’s Executor v. United States (1935). We all study that case for the proposition (contra Miers) that the President does not have absolute removal power over independent officers. But, writing for the Court, Justice Sutherland hints that there could be a problem with Congress creating the “quasi-legislative and quasi-judicial agencies,” but quickly dismisses it:

The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.

While the case primarily rejected the President’s power to remove FTC Commissioners, it tacitly upheld the legality of these quasi-legislative and quasi-judicial chimeras. A holding that the latter were unconstitutional would have certainly meant the commissioners were purely-executive, and could be fired by the President.

Second, consider United States v. Curtiss-Wright (1936). In short, Congress passed a resolution that effectively gave the President the authority to decide how to craft a criminal statute that prohibited the sale of arms to countries the President determines:

‘Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and if after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress.

Pursuant to this authority, President Roosevelt created a proclamation identifying Bolivia and Paraguay as the specified countries.

I do hereby admonish all citizens of the United States and every person to abstain from every violation of the provisions of the joint resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such provisions will be rigorously prosecuted.

Curtiss-Wright challenged the indictment in SDNY, and argued that the President could not prosecute him under the authority of the proclamation, as the joint resolution amounted to an unlawful delegation of the legislative power to the President. The SDNY judge agreed, and dismissed the indictment in part. For reasons I do not entirely understand, the case was appealed directly to the Supreme Court, and skipped the 2nd Circuit.

Writing for the Court, Justice Sutherland acknowledged that this issue is raised by the appeal, and explains that if the matter was of purely domestic law, there would indeed be a non-delegation doctrine problem (recall that he was writing for 8 Justices, Justice McReynolds dissenting).

The points urged in support of the demurrers were, first, that the joint resolution effects an invalid delegation of legislative power to the executive . . . . Whether, if the Joint Resolution had related solely to internal affairs it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive, we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the category of foreign affairs. The determination which we are called to make, therefore, is whether the Joint Resolution, as applied to that situation, is vulnerable to attack under the rule that forbids a delegation of the law-making power. In other words, assuming (but not deciding) that the challenged delegation, if it were confined to internal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory?

The Court avoided the issue, finding that the President did not need to rely on any delegation from Congress whatsoever. Rather, the President had the inherent authority pursuant to the Constitution. (The vitality of this holding is in serious doubt following Zivotofsky v. Kerry).

Third, in Hirabayashi v. United States (1943), the defendant asserted that the military curfew–promulgated by military officers acting on congressional statutes–violated the non-delegation doctrine.

The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.

Chief Justice Stone emphatically rejected this argument:

What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power. The mandate of the Constitution that all legislative power granted “shall be vested in Congress” has never been thought, even in the administration of civil affairs, to preclude Congress from resorting to the aid of executive or administrative officers in determining by findings whether the facts are such as to call for the application of previously adopted legislative standards or definitions of Congressional policy.

Fourth, INS v. Chadha (1983) considered the constitutionality of the so-called one-house veto. But antecedent to the one house veto, through the Immigration and Nationality Act, Congress delegated to the President the authority to decide not to remove specific individuals. One house of Congress could then override that decision, and force the executive to remove the individual. There are serious non-delegation doctrine problems here. Justice Powell acknowledges this in his concurring opinion:

Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies

Congress is giving a legislative-type authority to the President to make exceptions to statutes. (We are far away from the “prosecutorial discretion” species of non-enforcement of today). Second, Congress has given itself the power to force the President to remove specific individuals, the quintessential executive prosecutorial power. (And, I might add a violation of the Bill of Attainder clause. Did you know that Circuit Judge Anthony M. Kennedy heard this case for the 9th Circuit, and found that the case also raised “serious bill of attainder and equal protection problems.”). The Court resolved Chadha on fairly narrow, bicameralism and presentment grounds, but the non-delegation doctrine was certainly lurking in the backdrop.

Finally, consider Clinton v. City of New York (1998). The line-item veto, much like the statute at issue in Chadha, gave the President the legislative-like power to amend statutes by choosing which ones to enforce. Like in Chadha, Justice Stevens resolves the case on the “narrow ground” based on the “finely wrought” procedure of of bicameralism and presentment. In Chadha, Congress didn’t comply with Art. I, Sec. 7 (only one house voted). In Clinton, the President didn’t comply withArt. I, Sec. 7 (his only options after presentment are to sign or veto–not cancel). Stevens acknowledges, but expressly rejects the non-delegation doctrine issue:

The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act’s cancellation provisions violate Article I, §7, of the Constitution, we find it unnecessary to consider the District Court’s alternative holding that the Act “impermissibly disrupts the balance of powers among the three branches of government.” 985 F. Supp., at 179

Justice Scalia’s dissenting opinion (which I go back and forth on) directly acknowledges the non-delegation doctrine.

As much as the Court goes on about Art. I, §7, therefore, that provision does not demand the result the Court reaches. It no more categorically prohibits the Executive reduction of congressional dispositions in the course of implementing statutes that authorize such reduction, than it categorically prohibits the Executive augmentation of congressional dispositions in the course of implementing statutes that authorize such augmentation–generally known as substantive rulemaking. There are, to be sure, limits upon the former just as there are limits upon the latter–and I am prepared to acknowledge that the limits upon the former may be much more severe. Those limits are established, however, not by some categorical prohibition of Art. I, §7, which our cases conclusively disprove, but by what has come to be known as the doctrine of unconstitutional delegation of legislative authority: When authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers.

Though the non-delegation doctrine is one life support, it isn’t dead. The Court always seems to recognize it, acknowledge it is uncomfortable with it, and then look the other way.

Today we will continue our discussion of deeds and warranties.

Finally, we will reference this Texas General Warranty Deed in class. Here is a sample warranty deed from Texas, an earnest money contract.

Today’s lecture notes are here.

The lecture notes are here.

The Executive Power II- Foreign Affairs and War

• Inherent Executive Powers (308).
• Executive Powers for Foreign Affairs (383-385).
• Curtiss-Wright (385-390).
• Dames & Moore v. Regan (392-399).
• The War Power (411-413).
• ISIS
• Practice and Precedent (415-416).
• Prisoners of War and Civilian Detention (439-440).
• Korematsu v. United States (454-468)

Curtiss-Wright

Curtiss-Wright was a manufacturer of aircrafts and other military equipment, founded in 1929.

This is Curtiss-Wright’s headquarters in Caldwell, New Jersey (circa 1941).

Curtiss-Wright got in trouble by selling weapons to Bolivia during the Chaco War (1932-1935), where Bolivia was fighting against Paraguay.  The Chaco region was thought to contain oil. Bolivia and Paraguay, both poor landlocked countries, had difficulty obtaining arms. This was largely due to the fact that Congress, through a joint resolution, gave President Roosevelt the power to embargo arms shipments to any country engaged in the Chaco war. Curtiss-Wright sent bombers and fighter planes to Bolivia, notwithstanding the embargo, and was indicted.

Here are Paraguayan (not Bolivian) soldiers manning a machine gun during the Chaco war.

Dames & Moore v. Regan

This is Thomas Regan, who was the secretary of the treasury in Dames & Moore v. Regan.

This is the logo for the Dames & Moore Group Company.

Justice Rehnquist wrote Dames & Moore v. Regan in a short span of 8 days. There are several remarkable aspects of this opinion. First, Rehnquist cites as the definitive statement of executive power Justice Jackson’s concurring opinion Youngstown Sheet & Tube Co. v. Sawyer.

Of course, Rehnquist clerked for Jackson that term. As Judge Bybee noted in this article:

Rehnquist’s first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court . . . . On May 16, 1952, the Court voted 6-3 in conference to reject Truman’s claim of authority to seize the steel mills.15 As Justice Jackson described the vote to his then-law clerks William Rehnquist and C. George Niebank, Jr., “Well boys, the President got licked.’

Yet, Youngstown was written by Jackson himself, with little involvement by his clerks. In fact Rehnquist and his co-clerks suggested resolving the case on non-separation of powers grounds.

To begin, Jackson’s law clerks had very little hand in drafting his opinions generally and little role in preparing the Youngstown concurrence specifically. 30 Thus, the Youngstown concurrence represented Jackson’s, not Rehnquist’s, work product. In fact, archival materials indicate law clerk Rehnquist suggested alternate non-separation of powers grounds on which Youngstown might have been resolved. In an apparently unsolicited memorandum to Justice Jackson, William Rehnquist and his co-clerk proposed they undertake additional research for Youngstown. Interestingly, all the issues proposed non-separation of powers grounds for resolving the appeal–e.g., by balancing equities on the preliminary injunction, etc.31 To be sure, the 1952 clerk memorandum, standing by itself, would be a thin reed to support a claim that Rehnquist had doubts about resolving the separation of powers question in Youngstown against the President. It might merely suggest Rehnquist favored the parsimonious adjudication of constitutional cases by resort to avoidance. The memorandum, however, does not stand by itself. In his book The Supreme Court, Rehnquist, without mentioning his prior memorandum, expressed doubts about how Youngstown was resolved. Noting that the separation of powers issue was not well settled, but in his view “more or less up for grabs,” he believed Youngstown might have been resolved on the balancing of equities and that the law on those issues favored the executive.32

When pressed to write Dames & Moore v. Regan in a short span of 8 days, Rehnquist elevated Jackson’s concurrence to the effect holding of the case (and modified it along the way). And guess who was clerking for Justice Rehnquist in 1981 when Dames & Moore was decided.

A young pup names John G. Roberts (first from the right), who would go on to replace his boss as the Chief Justice of the United States.

On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.

Judge Roberts cited the decision last year in an opinion accepting the Bush administration’s position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.

Korematsu v. United States

This is a young Fred Korematsu.

This is Fred Korematsu later in life.

This is an announcement the United States Government posted, ordering “all persons of Japanese ancestry” to be rounded up.

It says:

Pursuant to the provisions of Civilian Exclusion Order No. 33, this Headquarters, dated May 3, 1942, all per- sons of Japanese ancestry, both alien and non-alien, will be evacuated from the above area by 12 o’clock noon, P. W . T., Saturday, May 9, 1942.

No Japanese person living in the above area will be permitted to change residence after 12 o’clock noon, P.W.T., Sunday, May 3, 1942, without obtaining special permission from the representative of the Commanding General

The Civil Control Station is equipped to assist the Japanese Population affected by this evacuation in the following ways:

1. Give advice and instructions on the evacuation.
2. Provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of

property, such as real estate, business and professional equipment, household goods, boats, automobiles and livestock.

3. Provide temporary residence elsewhere for all Japanese in family groups.
4. Transport persons and a limited amount of clothing and equipment to their new residence.

 

Here is a piece of U.S. Government propaganda explaining the “relocation” and do the “job as a democracy should. With consideration.”

Fast-forward to 12:30 when the narrator says there are no constitutional problems with the internment.

Here is a map of the “relocation centers” and camps.

The San Francisco Examiner announces the “Ouster of all Japs in California near.”

This is a so-called “temporary camp” or “assembly center” that were set up in public places, like fairgrounds, before the Japanese-Americans could be transported to the “Detention centers” dubbed “Relocation Centers.”

This is the Topaz Internment Center in Utah, where Fred Korematsu was sent.

Here are Americans locked up in internment camps.

Another photographed of interned Americans.

Here are Americans being rounded up on busses to the middle of the Utah desert.

Here is Eleanor Roosevelt at an internment camp.

This great picture contains a meeting of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi, who also had companion cases before the Supreme Court.

And here is Fred Korematsu posing with Rosa Parks.

In 1990, Korematsu received a redress letter and a reparations check for his internment.

President Clinton would Korematsu the Presidential Medal of Freedom in 1998.

Korematsu passed away in 2005.

The lead plaintiff in a related case was Gordon Hirabayashi. In Hirabayashi, the Court upheld curfews directed towards Japanese Americans because the nation was at war with Japan.

And this is Mutsuye Endo.

 

In 2004 and 2005, despite his failing health, and inability to attend 44 arguments, Chief Justice Rehnquist refused to retire. Jan Crawford aptly summarized the Chief’s perspective on retirement in Supreme Conflict:

He was not indecisive, but fatalistic— the kind of man who would think, “If I can do my job today, I’m going to do it.” All through June, every weekday, Rehnquist was going to work in his chambers at the Court. That was an entirely different outlook than Rehnquist had once had. Two decades earlier, Rehnquist would shake his head and tell clerks he “never can understand why justices stay so long.” Several of his older law clerks, at their annual reunion months before he learned he had thyroid cancer, reminded Rehnquist that he once was puzzled about why some justices insisted on saying on the Court past their prime. “It turns out you look at it differently when you’re looking at it from this perspective,” he responded.

But what would have happened if Rehnquist became extremely ill–so ill that he could no longer cast votes–but he refused to resign. Or, imagine the year is 2020 or 2024, and an Octogenarian Justice is incapacitated, and unable to perform the duties of his or her office. But, rather than resigning, he or she is hoping to live long enough until the next election, when a President of his or her choosing is able to appoint a replacement. William Brennan tried, but he couldn’t wait out Reagan and Bush 41. Same for Thurgood Marshall.

What would happen? I recall reading that in the waning days of Justice Douglas’s tenure, the other Justices effectively disregarded his presence, and would not let him cast the deciding vote in any case. Would there be any internal mechanism for the other Justices to declare an incapacitated Justice is, to borrow the words of the 25th Amendment, “unable to discharge the powers and duties of his office”? Would this determination then trigger the President’s power to fill the vacancy? I don’t anticipate this happening. Timing a retirement to coincide with a President of your choosing seems to be the norm; but delaying retiring, even you cannot serve as a Justice is wildly inappropriate. In light of the drama that resulted from Rehnquist’s refusal to step down until it was too late, it is worth thinking about.

Last week I blogged about Adam Liptak’s article about Justices who crib language from briefs. I noted that though the entire piece seemed to focus on Justice Thomas, we didn’t find out till paragraph 15 that Justices Ginsburg and Sotomayor have virtually indistinguishable measures. Orin Kerr made a similar observation.

The Times Public Editor weighs in. First, here is an explanatory email from Liptak.

By five different measures, Justice Thomas wrote majority opinions that shared language with source materials more than his colleagues did. This was true of parties’ briefs, friend-of-the-court briefs and lower-court decisions, according to three studies and related data that considered two separate time periods. That seemed unusual and worth exploring, and it opened a window onto the phenomenon of shared language in judicial decisions.

The explanation for Justice Thomas’s consistently high rates of overlapping language, offered at the beginning of the article, was benign: When he is writing for the court, he concentrates on minor, technical cases in which shared wording is particularly common. His many dissenting and concurring opinions, the article added, were another matter, often making expansive and original contributions to constitutional law.

It is true, as the article noted, that Justice Thomas’s rates of shared language were by some measures only modestly higher than those of some other justices. But they were consistently so. Other measures showed that Justice Thomas in the last decade signed a disproportionate share of individual majority opinions with particularly high levels of overlapping language.

The answer to your question, then, is that the article focused on Justice Thomas because he was the consistent outlier.

The Editor offers a brief reply:

I thought the article’s language was quite careful, and, from what I can tell, accurate. But the overall impression it left may well have overstated the case. Part of that was conveyed by the headline, “Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own,” which, while also accurate, seemed to suggest something close to plagiarism.

The headline and graphic of Thomas–which Liptak (most likely) did not choose–no doubt accentuated the focus on CT. I think the piece could have been improved significantly had there been more than one brief, passing references to other Justices who have similar rates–even if it is in only one study. Reading till paragraph 16 felt like a bait and switch–mention it earlier, and I don’t think I would have minded nearly as much.