Hamdi meets Youngstown: Justice Jackson's wartime security jurisprudence and the detention of "enemy combatants".

• Author: Cleveland, Sarah H.
• Position: Wartime Security and Constitutional Liberty

More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution--that "Eighteenth-Century sketch of a government hoped for" (1)--struggles both to preserve fundamental liberties and to protect the nation against fundamental threats. Drawing upon his collective experience as a solo practitioner with only one year of formal legal education at Albany Law School; government tax and antitrust lawyer, Solicitor General, and Attorney General in the Roosevelt Administration; Associate Justice to the Supreme Court; and Representative and Chief of Counsel for the United States at Nuremberg, Justice Jackson sought to explain how the foreign affairs powers were distributed within the national government, how they related to constitutional civil liberties, and the appropriate role of the courts in achieving that balance.

Jackson was no dove; in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, he announced that he would "indulge the widest latitude of interpretation to sustain [the President's]" power to command, "at least when turned against the outside world for the security of our society." (2) But Jackson also understood that claims of national security were themselves one of the greatest threats to the fidelity of constitutional governance. By the time he reached the Court, he viewed the war powers as "the Achilles Heel of our constitutional system," (3) due to the claims of necessity and the corresponding challenges to judicial protection of liberty that security crises bring. His powerful insights in his Youngstown concurrence into how a liberal democracy must reconcile the tension between security and liberty continue to dominate any reasoned analysis of national security questions.

This comment, offered in Jackson's honor on the fiftieth anniversary of his death, addresses the contribution of Justice Jackson's wartime security jurisprudence to contemporary questions of executive detention of "enemy combatants," and particularly to the recent decision in Hamdi v. Rumsfeld. (4) Hamdi, of course, involved the executive's claimed authority to indefinitely detain a U.S. citizen accused of fighting with the Taliban in Afghanistan. This comment argues that Justice O'Connor's plurality opinion and Justice Thomas' dissent in that case missed a fundamental point of Justice Jackson's Youngstown analysis by failing to rigorously scrutinize claims that Congress had authorized such detentions. The Justices thus failed to appreciate the importance which Jackson placed on explicit participation by Congress in legitimizing deprivations of liberty in times of crisis. The Hamdi Court's ultimate conclusion that executive detention of a citizen could not occur absent basic procedural protections, however, was consistent with Justice Jackson's preference for legal process as the most effective defender of individual freedom.

YOUNGSTOWN AND CONGRESSIONAL AUTHORIZATION

It is impossible to exaggerate the significance of Justice Jackson's concurrence in Youngstown for U.S. foreign relations jurisprudence. My colleague at the University of Texas, Sandy Levinson, regards the concurrence as "the greatest single opinion ever written by a Supreme Court justice," (5) and I certainly will not disagree with him here. Although Justice Black's majority opinion in Youngstown dealt the fatal blow to President Truman's effort to seize the steel mills during the Korean War, it was Justice Jackson's concurrence that established the starting framework for analyzing all future foreign relations and individual liberties problems. Justice Jackson explained how the Constitution's cryptic and deeply ambiguous division of authority between Congress and the President in wartime--the grant of the power to declare and regulate war to one and the Commander in Chief power to the other--should be elaborated in practice.

Jackson rejected Justice Black's formalistic view that the powers of Congress and the executive were hermetically sealed and instead envisioned the branches in a symbiotic relationship. The Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity," (6) he wrote, and presidential powers accordingly "are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." (7) Jackson thus famously set forth a three-tiered continuum of presidential power. First, where the President acts "pursuant to an express or implied authorization of Congress," executive power is "at its maximum." (8) In the second tier, where Congress has been silent, the President may act in the "zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." (9) Finally, where the President acts contrary to the "expressed or implied will of Congress, his power is at its lowest ebb." (10)

Jackson envisioned this continuum of executive authority as accompanied by an inverse role for the courts. Executive actions taken in the first category, with congressional authorization, "would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." (11) In other words, where the executive and Congress acted together, the courts should largely defer. But actions taken in the third category, in the face of a statutory denial of authority, "must be scrutinized with caution." (12)

Although Youngstown is viewed as one of the bulwarks against executive excesses in times of emergency, individual liberties notably have little to do with Jackson's framework. The Youngstown concurrence instead offers a structural mechanism for identifying the existence of enumerated power and ensuring that the constitutional separation of powers is preserved. Neither Jackson nor the Court reached the Fifth Amendment due process and just compensation claims raised by the plaintiffs. And the constitutional rights that Jackson mentioned--such as the Third Amendment's prohibition against quartering of soldiers, (13) the Fifth Amendment's mandate of due process of law, (14) and Article I's provision for the suspension of habeas corpus (15)--were deployed to underscore his view that Congress, rather than the executive, possessed the power to limit liberties in the face of security threats, not to suggest that the Constitution prohibited such actions altogether. Jackson's survey of other foreign practices likewise led him to conclude that "emergency powers are consistent with free government only when their control is lodged" in Congress. (16) Indeed, he pointed to the ample emergency powers that Congress could grant the President as evidence that there was no need for the power to be exercised without a statute. (17) Within the constitutional system, Jackson concluded, the President's command power "is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress." (18)

Jackson and the other members of the Youngstown majority found that Congress had denied the claimed seizure power to the President. In other words, Truman was acting in Jackson's third category: the President had acted contrary to the express or implied will of Congress. But the conclusion was not necessarily obvious; one might plausibly place the seizure in either of Jackson's other two categories. Congress could have been deemed silent, since nothing in the text of the Taft-Hartley Act or other relevant statutes expressly prohibited other forms of seizure. (19) One could even argue that Congress had impliedly approved the policy, either through the "mass of legislation" that Congress had enacted (as Chief Justice Vinson suggested in dissent) (20) or by taking no action after the seizure. (21) In short, one judge's "implied approval" by Congress could be another's "silence" and still another's "implied disapproval." Jackson's framework thus is not a prophylactic. It is not a substitute for the hard work of judging.

The critical lesson of Jackson's opinion in Youngstown was twofold: Jackson believed that the Constitution gave Congress, not the Commander in Chief, the authority to limit civil liberties in wartime, and he believed that courts must rigorously scrutinize congressional meaning before finding such authorization. A court must find real, specific evidence of congressional authorization to find that Congress has approved an executive action infringing on fundamental liberties. Jackson had been a proponent of broad executive powers as Roosevelt's pre-war Attorney General (22) and early in his tenure on the Court had flirted with advocating that courts abstain from reviewing presidential exercises of the war powers. (23) But by Youngstown, he viewed both the congressional and judicial checks on the executive as vitally important. He also viewed his approach as fully consistent with the Court's broad constructions of executive power in other cases, (24) which involved explicit delegations of legislative power to the President. (25)

If congressional authorization is to be the touchstone for protecting liberty in times of crisis, however, that authorization must be meaningful. The theme of requiring clear congressional authorization to legitimize deprivations of liberty runs through much of Jackson's jurisprudence. Jackson's opinions in Korematsu, Knauff, Mezei, and Youngstown all evidenced a reluctance to find congressional authorization where fundamental liberties were at stake. In Korematsu v. United States, Jackson rejected Justice Black's willingness to read ambiguous congressional language as authorization for the exclusion of individuals based solely on their Japanese ancestry. (26) He pointedly noted that neither Congress nor the President had explicitly authorized a military exclusion policy based on race. (27) In dissenting from...