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The U.S. Supreme Court and The Imperial Presidency
How President Bush Is Testing the Limits of His Presidential Powers


Friday, Jan. 16, 2004

Can the President of the United States arrest any American he suspects of being a terrorist and toss him in a military brig, deny him a lawyer, omit to bring any charges against him -- yet indefinitely keep him imprisoned nonetheless?

Can the President kidnap foreigners charged with violating federal law, and bring them to the United States to stand trial? How about Osama bin Laden, for starters?

These are only a few of the issues raised by cases now pending before the U.S. Supreme Court that will examine the limits of presidential powers. As David Savage, the legal writer for the Los Angeles Times, has noted, this is a remarkable collection of cases.

"[T]he justices have voted to take up five cases that test the president's power to act alone and without interference from Congress or the courts," Savage explains. The description of these cases, as Savage has ably summarized them, is startling: "They involve imprisoning foreign fighters at overseas bases, holding American citizens without charges in military brigs, preserving the secrecy of White House meetings, enforcing free-trade treaties despite environmental concerns, and abducting foreigners charged with U.S. crimes."

What the Supreme Court has placed on its agenda, in short, is the Imperial Presidency -- that is, the Presidency in which the Executive largely acts alone, pushing the Constitution to the limits and beyond. And how the Justices deal with this overwhelmingly important topic could affect the reelection prospects of the Bush presidency, for, as David Savage notes, at least four of the five rulings are anticipated to be handed down during the summer of 2004 -- right in the middle of the presidential campaign.

The High Court and Nixon's Imperial Presidency

Pulitzer Prize-winning historian Arthur Schlesinger, Jr.'s The Imperial Presidency gave the term its currency. He traces its growth from George Washington to Richard Nixon, showing how a presidency never contemplated by the founders has evolved. As a basis for their authority, presidents typically cited their role as commander-in-chief -- an undefined constitutional term -- and "inherited powers" other presidents had used before them.

After Nixon pushed the presidential powers even further than past presidents had, both the Congress and Supreme Court acted to curtail his activities. In the name of protecting national security, Nixon wanted to be able to wiretap without the approval of a judge. The authority for this power? Before the Court of Appeals, Nixon relied on a vague "historical power of the sovereign to preserve itself" and "the inherent power of the President to safeguard the security of the nation."

Later, arguing the issue before the Supreme Court, the government got even more vague -- just loosely using the national security contention. In the end, the Court -- in the ironically named case United States v. United States Court for the Eastern District of Michigan (which became known as the Keith Case) -- said no. Joining the opinion were all of Nixon's own appointees -- except William Rehnquist, who recused himself.

In another Supreme Court case, New York Times Co. v. United States, Nixon also tried, but failed to get the Supreme Court to extend Executive powers. Then, Nixon's government sought an order blocking publication of the Pentagon Papers. It claimed the release of the classified documents that had been leaked to The New York Times, The Washington Post, and other newspapers, could harm national security. Again, Nixon lost.

Then, in United States v. Nixon, Nixon resisted turning over to the Watergate Special Prosecutor his taped conversations. He asserted his implied authority to invoke "executive privilege." But once again, he lost: It was the Supreme Court's unanimous decision that the privilege did not protect the tapes, when a grand jury had sought the information. This ruling, of course, ended Nixon's presidency.

After Nixon had departed, the Supreme Court also addressed Nixon's effort to impound federal funds -- to not spend money that Congress had appropriated. Nixon claimed he was only doing as his predecessors had done (albeit a bit more aggressively than they had). But the Court again unanimously ruled against him. It held that the president had exceeded his constitutional authority.

In short, at the zenith of the Imperial Presidency era, the Supreme Court consistently ruled in such a way as to pull the presidency back into Constitutional balance with the other branches. Its rulings were wise, for the alternative would have been to allow presidential power to burgeon, at the expense of the balance of power with the Legislative and Judicial branches.

Bush's Imperial Presidency?

Not inaccurately, the Bush presidency has been called imperial, in Schlesinger's sense. The evidence? Its "preemptive" and "preventive" military policy, its contentions that it can go to war regardless of whether Congress approves, its policies calling for American world domination, and its unprecedented blending of national security policy and domestic law enforcement. In my view, these policies and positions not only easily establish the Bush presidency as imperial, they also rank it beyond anything in the annals of the modern American presidency. This may be the most imperial Presidency our history has yet seen.

I've spoken with Arthur Schlesinger about it -- asking him if he thought the Bush presidency fit his description of an imperial presidency. In response, he chuckled, and said, "I'd certainly say this is an imperial presidency."

The fact that five cases currently before the Supreme Court address the question of presidential powers -- and whether or not the Bush presidency has exceeded them -- speaks for itself. Bush has had almost twice as many such cases before the Court as Nixon had, in half the time.

The new level of exertion of presidential authority is a combination of the circumstances following 9/11, the war on terrorism, and Vice President Dick Cheney's long held views on executive power. Accordingly, these are hardly small issues with this presidency. In fact, they are precisely the issues that will be an integral part of the debate during the presidential campaign.

Democrats, and many Republicans, believe that Bush and Cheney have pushed too far, taken too many liberties, and far exceeded the constitutional boundaries -- many of them defined by these cases. For that reason, it is difficult to suggest a collection of cases, over our history, that were more likely to have a political impact -- whichever way the Supreme Court rules.

Stated more bluntly: Rulings for Bush will help him politically. Conversely, holdings against him will show a president who is operating outside the Constitution.

Will the Supreme Court Place Checks on the Bush Presidency?

Predicting Supreme Court rulings is a tricky business. Yet it is clear that the current Court is more center-to-conservative than the Court that checked Nixon's activity. And when members of the Court start thinking about leaving the high bench -- and several on this Court have been mulling that for some time -- they also think about who will be in the White House to select their successor.

Without dissecting the legal matters at issue in each of these cases -- all with their own complexes and nuances -- at this time, it is not possible to know how the Court will rule. Some pundits claim, however, that the recent ruling of the Court not to review the case of Center for National Security Studies v. Justice Department is a favorable omen for the Administration.

There, the court rejected a petition, joined by twenty-three news organizations, that it should hear a high profile case involving First Amendment and Freedom of Information Act issues. The result was to allow the government -- specifically, the Justice Department -- to continue to withhold the names and other details about the hundreds of Muslims and other Middle Eastern men rounded up, and detained (even abused, according to the Justice Department's Inspector General's report) after 9/11.


The pundits have suggested that this denial of review shows that the Bush administration is correct to be confident that it will win the executive power cases before the Court. But frankly, I don't believe anything can be read into a decision of the Supreme Court not to review any case, even this one.

For one thing, the issues in Center for National Security Studies are quite distinct from the issues in the other pending executive authority cases. Second, as with virtually all denials of review, no one outside the Court can really understand why Justices turned down the case. Those pundits who claim otherwise are thus off the mark.

The Executive Power Cases the Court Will Hear Soon

As I noted at the start of this column, it has been three decades since the Court will have tackled such important presidential power questions -- with such potential political implications for a presidential race. For that reason, the five cases that raise these questions should be on the radar screen of all president -- and Supreme Court -- watchers.

The cases are:

    • Sealed Case
    • . A case so secret it does not appear on the Court's docket, and the Solicitor General simply refers to it as "this matter … that is required to be kept under seal." In fact, it is not all that secret. It involves Mohamed Kamel Baellahouel, who wants the Court to rule on whether he was improperly secretly jailed. The government want to argue its case in secret. But some twenty news organizations are opposing this extreme secrecy.
    • Hamdi v. Rumsfeld
    • . This case raises the rights of an American citizen -- Yaser Hamdi -- who was captured overseas and held in the United States as an "enemy combatant." Hamdi was arrested in Afghanistan.
    • Rasul v. Bush
    • , and Al Odah v. United States. These cases address the habeas corpus rights of aliens detained at the U.S. base in Guantanamo Bay, Cuba. The government is maintaining that these aliens do not have the right to file habeas corpus petitions in U.S. federal courts.
    • Padilla v. Rumsfeld
    • . This case involves Jose Padilla, a U.S. citizen who is being held indefinitely, in a military prison, as an "enemy combatant." He was arrested when deplaning in Chicago. (Thus, his case may be treated differently from that of Hamdi, who was arrested abroad, in Afghanistan.) The Second Circuit, in a 2-1 ruling, held that Padilla's detention violated the Non-Detention Act of 1971, which asserts that no citizens may be held by the federal government "except pursuant to an act of Congress." The Government is appealing, claiming that the President has power to unilaterally cause such detentions to occur.
    • Cheney v. Judicial Watch and Sierra Club
    • . This case involves the right of the vice president (and, by implication, of the president) to refuse to turn over documents in a civil lawsuit. The suit seeks to determine if Cheney violated the Federal Advisory Committee Act (the law that forced First Lady Hillary Clinton to open up her sessions on health care).

Given the importance of all of these cases (with their implications), I've got them on my docket, and plan to follow them in the coming weeks and months.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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