Associate Professor, University of Miami School of Law; Associate Professor (as of Fall 2007), American University Washington College of Law. This Article benefited tremendously from discussion at a junior faculty colloquium hosted by PrawfsBlawg (http://prawfsblawg.blogs.com) in conjunction with the University of Miami School of Law. For that discussion, and many of the better ideas contained herein, I owe thanks to Mario Barnes, Jennifer Collins, Ben Depoorter, Mark Fenster, Jason Solomon, Howard Wasserman, Lesley Wexler, David Zaring, and most especially Dan Markel. Thanks also to Bobby Chesney and Patrick Gudridge for their comments and camaraderie. By way of disclosure, I played a recurring role on the legal team for the Petitioner in Hamdan. Needless to say, the views and opinions expressed herein are mine alone, and do not in any way represent the position of Hamdan or his counsel.
"[I]t is doubtless both futile and perhaps dangerous to find any epigrammatical explanation of how this country has been governed."1
Depending on whom you ask, the Supreme Court's June 2006 decision in Hamdan v. Rumsfeld2 was either a decisive, landmark, and unprecedented victory for civil libertarians,3 a disturbing example of both judicial activism and of marked disrespect for the proper deference owed to the President during wartime,4 or, in some cases, both.5 To those with the former view of Hamdan's hyperbole, the decision is the modern Youngstown,6 and the most important constitutional law decision in the half-century since the Court rejected President Truman's seizure of the steel mills.7 To those with the latter view, Hamdan was a disastrouslyPage 935 myopic usurpation of judicial power, necessitating a strong and swift reaction from the political branches8 (which came, of course, in the form of the Military Commissions Act of 2006).9 Although they manifest diametrically opposite viewpoints, what these two views have in common is a unified and mutually reinforcing sense of Hamdan's doctrinal, political, and even social importance.10
This Article takes a somewhat different position. To be sure, Hamdan was immensely important. But the Court's decision was important not because it was unprecedented, but because it was precedented. In holding that the military tribunals established by the Bush Administration to try suspected "enemy combatants" detained at Guant·namo Bay, Cuba,11 failed to comport with various procedural and substantive requirements imposed by the Uniform Code of Military Justice (UCMJ)12 and the Geneva Conventions,13 and that the tribunals were therefore unlawful,14 Hamdan necessarily concluded that the President could not disregard valid substantive limitations that Congress placed upon his authority during wartime. As Justice Stevens wrote forPage 936 the majority, "[w]hether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers."15 In so holding, Hamdan arguably reaffirmed (rather than invented) a straightforward conception of the proper separation of war powers that is almost as old as the Republic itself, dating back to Chief Justice Marshall's opinion in Little v. Barreme,16 one of the so-called "Quasi-War"17 cases.18
In Little, Chief Justice Marshall was emphatic in distinguishing between unilateral presidential power in the face of congressional silence, and presidential authority in the face of countervailing statutory limitations. Thus, Marshall held unlawful U.S. Navy Captain George Little's seizure of a Danish vessel sailing from a French port during the Quasi-War because Congress had only authorized seizures of vessels sailing to French ports:
It is by no means clear that the president of the United States whose high duty it is to "take care that the laws be faithfully executed," and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that . . . the 5th section [of the 1799 Non-Intercourse Act]19 gives a special authority to seize on the high seas, and limits that authority to the seizure ofPage 937 vessels bound or sailing to a French port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.20
At first blush, this framework may sound familiar, evoking the distinctions seized upon by Justice Jackson in his canonical and celebrated concurrence in Youngstown (which Justice Stevens cited in the critical footnote in Hamdan to support the enforceability of congressional limitations on the war power).21 Yet Jackson's typology has proven largely ineffective for resolving cases where the constitutional authority of both Congress and the President are implicated-and overlap-as is true in most war powers cases. Nor does Jackson's concurrence resolve the question of when presidential power might "disable" legislative interference. Thus, Jackson's concurrence neither explicitly supports nor rejects the "Commander-in-Chief override"-a theory of executive power that has gained prominence in the aftermath of September 11.22 The "Commander-in-Chief override" maintains that statutes otherwise purporting to limit the President's exercise of his "war powers" cannot do so without unconstitutionally infringing upon the Commander-in-Chief Clause.23 To the extent that both the President and Congress could claim constitutional authority in areas implicating the "override," Jackson's concurrence provides virtually no guidance in assessing which must yield-the statute or the President.
In Little, however, Chief Justice Marshall provided his own answer to that question: so long as the statute imposing limits upon the President's war powers is a valid exercise of Congress's powers, the limits are binding and enforceable, and the President lacks inherent constitutionalPage 938 authority to act in contravention thereof.24 Moreover, up until Youngstown, there were absolutely no decisions by the Supreme Court disavowing or otherwise expressing even implicit disagreement with the theory underlying Little. Even in Youngstown itself, Little was not forgotten; we need look no further than the completely overlooked and neglected opinion of the completely overlooked and neglected Justice, Tom C. Clark.
Concurring in the judgment, Justice Clark began by invoking Chief Justice Marshall's opinion in Little.25 After noting that "the Constitution does grant to the President extensive authority in times of grave and imperative national emergency,"26 Clark, who had served as Attorney General under President Truman, echoed Marshall's focus on the enforceability of substantive congressional limitations:
I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand.27
Although many have since read Justice Clark's opinion as expressly embracing theories of inherent presidential emergency power,28 the first clause of the above passage is perhaps even more important than the second, for it suggests, in stronger terms than Justice Jackson's far-more-scrutinized concurrence, that congressional limitations on presidential war powers are enforceable so long as they are valid.29 TwoPage 939 of the other overlooked concurrences in Youngstown-Justice Frankfurter's and Justice Burton's-were to similar effect.30 Hamdan, in relying upon a theory of the separation of war powers that has its origins in Little v. Barreme, might thus be best understood as the vindication of these forgotten Youngstown concurrences, and as the repudiation of the half-century-long "drift" that may well have been the unintended result of Justice Jackson's far more celebrated opinion in the same case. On the Little v. Barreme/Clark/Burton view of the separation of powers, the Commander-in-Chief override is patently unjustifiable and facially invalid, and cannot survive Hamdan.
But can it really be that easy?
Scholars have long debated-and many have emphatically rejected- this conception of Congress's "disabling" power: the idea that Congress can disable a President from acting simply by enacting a statutory prohibition that is within the scope of its constitutional authority.31 How, then, are we to reconcile the elegant simplicity of this theory of the separation of powers, which is thematically at the heart of the Hamdan opinions of Justices Stevens, Kennedy, and Breyer...