Keerthi Chalamalasetty
Edited by Braxton Bullock, Sahith Mocharla, and Jia Lin
I. Introduction
At the nexus of American democracy lies the delicate balance of the imperative for decisive military action in times of conflict and the constitutional safeguards designed to maintain effective checks and balances between the three branches of government. This tripartite structure of the United States federal government allows for the necessity of a central figure to exercise his executive authority while sharing power with the legislative and judicial branches. This balance of power is integral to upholding the democratic values that are foundational to the United States of America. However, it hangs on a delicate thread as both its interpretation and utilization has evolved significantly over the course of American history. The most consequential issue regarding executive authority comes from the exercise of Presidential War Powers and the division of power between the legislative and executive branches of government when declaring and executing a war. Though the roles of the legislative and executive branch are central to engaging in a war, there is one branch that often gets overlooked in the process—the judicial branch. Most notably, the Supreme Court of the United States has played a significant role in both restraining and expanding presidential war powers from Abraham Lincoln’s Civil War to George W. Bush’s Global War on Terror. The role of the Supreme Court is to be the arbiter of the law–as it does not have the constitutional right to declare or execute a war–but, more importantly, it has the right to actively and retroactively interpret the constitutionality of legislative or executive actions.
The Constitution of the United States has effectively delineated the duties of the three branches of government. To begin, Article I of the U.S. Constitution lists enumerated rights that are inherent to the role and function of Congress. In the subject matter for war powers, it is set forth in Article I, Section 8, Clause 11 of the Constitution that Congress has the right “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” however, declaration of war itself is not sufficient to executing a war [1]. Hence, it becomes evident that ‘War Powers’ spill over to the executive branch and place authority in the President as the Commander-in-Chief. This centralizes the authority of decision making when the nation is at war, allowing for efficient decision-making in times of conflict. The famous aphorism, “The United States cannot have 535 secretaries of states,” illustrates the necessity for the existence of one central authority when it comes to executing the war [2]. As in moments of conflict, you cannot rely on the approval of all 535 members of Congress when making a timely decision.
Following the declaration of war from Congress, the duties of the President can be found in Article II of the Constitution. Article II, Section II of the US Constitution categorizes the President’s duties as the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” [3]. It becomes apparent that the role of Congress is to declare war, as the branch directly elected by the people requires a majority to represent the interests of the people. Consequently, the President, also elected by the people, is then given the central authority to execute the war in the interests of the country’s citizens. While it initially seems that the duties of each branch are clearly defined, there has been constant conflict and controversy over the balance of power between the legislative and executive branches of government since the inception of the United States of America. Hence, to resolve conflicts during wartime, the Supreme Court has issued landmark rulings meant to handle the delicate balance of central authority and the protection of constitutional rights, which underscores the significance of the court's exercise of judicial review in interpreting the constitutionality of a presidential action during a time of crisis through both restraining and expanding presidential war powers.
From the Civil War to the Global War on Terror, the characterization and judicial interpretation of presidential powers has drastically changed given the circumstances of war. The three most crucial time periods when presidents have had to conduct the most significant exercise of their war powers are the American Civil War, The Second World War, and The Global War on Terror following the September 11 attacks–these wars are crucial moments in American history that defined the future course of the country. During the Civil War, Chief Justice Roger Taney presided as a federal circuit judge and restrained the presidential powers of President Abraham Lincoln in Ex Parte Merryman (1861) by declaring, that Congress, and not the President has the authority to suspend the writ of habeas corpus during wartime [4]. However, the Supreme Court’s interpretation of war powers evolved during the Second World War as the court expanded Presidential War Powers and employed judicial deference to the executive branch [5]. Lastly, following the September 11 attacks, the Supreme Court was more deliberate with striking a balance between granting the executive authority and protecting individual liberties [6]. During this time period, the legislative branch passed the Authorization for Use of Military Force of 2001, which allowed the President to utilize appropriate forces to avert future acts of terrorism against the United States [7]. Therefore, substantially expanding executive war powers in a time of military crisis due to the circumstances of the terrorist attack.
II. The American Civil War
The American Civil War marked the first major war that the newfound republic faced in the midst of tumultuous domestic political division. The Civil War, occurring between 1861-1865, was not only a conflict between the North and the South over the controversial issues of states’ rights and slavery, but it was a test to the nation’s commitment to the founding principles of constitutional democracy and unity that the country was built upon [8]. The issue of presidential war powers was at the nexus of the Court, as the court was adjudicating the balance between executive authority and civil liberties. On April 12, 1861, just a month after President Abraham Lincoln assumed office, confederate forces attacked Fort Sumter in South Carolina—marking the beginning of the Civil war [9]. Consequently, as an effort to prevent the further proliferation of war, Lincoln officially suspended the writ of habeas corpus on September 25, 1862. Lincoln had priorly suspended the writ of habeas corpus in 1861 in Maryland to prevent civilian unrest. The reasoning behind his decision was based on Article I, Section 9, which states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” [10]. Habeas Corpus is a Latin term for “that you have the body,” and the writ of habeas corpus is utilized to bring a person before court to determine if a person’s imprisonment is legal [11]. At the outbreak of the war, mobs in Baltimore, Maryland attacked the American militia on their route to Washington D.C. and disrupted various communication systems that were detrimental to the union war efforts. As a result, Lincoln initially suspended the writ of habeas corpus geographically from Washington to Pennsylvania and allowed for the arrests of rioters. Most notably, John Merryman, a Baltimore resident, was arrested on May 25, 1861 and taken to Fort McHenry in Baltimore. However, his brother-in-law petitioned for a writ of habeas corpus to Chief Justice Taney and was successful in its issuance. As a result, General George Cadwalader, a military commander, was required to bring John Merryman to the district court in Maryland. However, General Cadwalader refused to do so due to Lincoln’s initial suspension of the privilege of writ of habeas corpus [12]. Failure to comply with Taney’s request caused him to issue a comment on this situation in Ex Parte Merryman in his dual role as a Chief Justice of the United States Supreme Court and federal circuit court judge and question the ambiguous and unlawful charges brought upon Merryman. Taney’s comments seemed to rely on the idea that “Congress is of necessity the judge of whether the public safety does or does not require it; and its judgment is conclusive” [13]. Hence, Taney is negating the idea that the President’s exercise of wartime authority expanded to Article I, Section 9 of the Constitution. This is significant as the court exercised judicial review to emphasize that Congress, and crucially not the president, had the power to suspend the writ of habeas corpus in times of conflict. Additionally, it emphasized the significance of civil liberties and their protection in tumultuous times. Specifically, the idea that even though the President may have the right to suspend the writ of habeas corpus during wartime, the suspension could only be applicable to military personnel and not to be utilized to detain ordinary civilians. To support this, Taney claimed that “There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military” [14]. Therefore, signaling an era of restraint from the court as the issue of presidential war powers was being introduced into discussion. Taney’s comment in Ex Parte Merryman illustrates the restriction of Lincoln’s decision to suspend habeas corpus during wartime and enforcing the judicial check on the executive branch in a time of political strife. This is significant as the court upheld civil liberties and set an important precedent for future legal interpretations of executive authority and presidential war powers. However, due to ideological differences between Lincoln and Taney on the issue, the decision was not followed and Lincoln justified his decision in front of Congress in July 1861 by claiming that he was obligated by his presidential oath to see that all laws were followed, and argued that he could suspend the writ of habeas corpus if that was the way to ensure that the laws were followed [15]. This case emphasizes that the role of the judicial branch is to issue judgments as a check on the other branches, while the enforcement of judicial rulings is entirely in the hands of the executive and legislative branches.
After the establishment of the legal precedent on presidential war powers in Ex Parte Merryman, there was another important legal precedent on military authority set during this era that came to be known as Ex Parte Milligan. As the war came to a decisive end on April 9, 1865, The Supreme Court, in 1866, decided whether a civil court had jurisdiction over a military tribunal in Ex Parte Milligan [16]. The case was significant as it dealt with the issue of military tribunals that were established during wartime, examining the balance between civil liberties and the limits of military authority. In the court case, it was established that Lambdin P. Milligan was accused of aiding the Confederacy by conspiring to free prisoners who owed allegiance to the Confederacy. As a result of this accusation, he was arrested in 1864, and tried by a military court in Indiana that had been under the authority of Lincoln during the Civil War, and was sentenced to hang. As a result of this decision, Milligan’s legal counsel sought to reverse the decision by seeking a writ of habeas corpus and questioning the constitutionality of the decision as it had been made through a military tribunal. After several days of oral arguments, on April 3, 1866, in a unanimous decision by the court, Justice David Davis wrote the opinion of the court claiming that civilians being subject to trials by military commissions created by the President are unconstitutional. The reasoning behind this decision was that Milligan had been deprived of his constitutional right to a trial by jury [17]. This decision established a significant legal precedent that not only declared it unconstitutional to have a civilian be subject to a military trial when there are civil courts in the region, but it declared the creation of the military tribunals, itself, in times of war in regions where there were functioning civil courts unconstitutional. Hence, placing a restriction on war powers during times of conflict.
The American Civil War marked an era of significant political strife and division within the nation. The tension between the executive and the judicial branch was evident as the Supreme Court encountered significant challenges in maintaining the balance between national security and adhering to the civil liberties enshrined in the constitution. In Ex Parte Merryman, Chief Justice Taney’s comments signified the restriction of the presidential war powers to suspend the writ of habeas corpus. Similarly, at the end of the war, Ex Parte Milligan illustrated the restriction of military authority as it was declared unconstitutional to subject civilians to military trials when there are civil courts present in the region. Together, they set an important legal precedent in an era of political turmoil that limited the power of the executive during subsequent war times.
III. The Second World War
The Second World War ranging from 1939-1945 was the largest and deadliest conflict in human history, leading to the deaths of upwards of 50,000,000 people. The war was fought between the Axis and Allied powers over the spread of Nazi Germany, Fascist Italy, and a militaristic Japan. The war began with Germany’s invasion of Poland on September 1, 1939 and soon after with the declaration of War on Germany by France and Great Britain on September 3, 1939 [18]. However, it was not until 1941 that the United States entered the conflict due to the bombing of Pearl Harbor by Japan. On December 7, 1941, “a date that will live in infamy,” as proclaimed by President Franklin D. Roosevelt [19], Japan conducted an aerial attack on the United States naval base in O‘ahu Island, Hawaii [20]. As a response, the United States declared war on Japan on December 8, 1941 with unanimous support in the House of Representatives and only one dissenter in the Senate [21]. The United States’ involvement in the Second World War was critical as it began significant industrial and military mobilization efforts and brought the war to an end by dropping the atomic bombs on Hiroshima and Nagasaki on August 6 and August 9, 1945, respectively [22]. The Second World War was a crucial time period where the United States established its dominance on the international stage and stood as a global leader. In accordance with the legislative and executive branches in agreement over the necessity of the war, the judicial branch was a strong supporter of the full exercise of presidential war powers in landmark cases during this era of turbulent struggle.
The first major Supreme Court case on the issue of executive authority occurred at the beginning of the United States’ involvement in the Second World War. In Ex Parte Quirin (1942), the Court decided whether the President exceeded his wartime authority by ordering a military trial by commission for German saboteurs, hence violating the individual’s right to the Fifth and Sixth Amendments [23]. The case concerns a failed attempt in June 1942 by German agents to sabotage targets belonging to the United States. The eight agents traveled to the United States by submarine and four of them arrived in New York, while the other four landed in Florida. However, their conspiracy was not successful as some of them backed out of the mission and one of them turned himself into the Federal Bureau of Investigation (FBI). As a result of the mission’s failure, President Roosevelt ordered a trial by military commission and the commission found all of the men guilty and sentenced them to death. However, Roosevelt reduced the sentence of the men who turned themselves into life imprisonment. Additionally, seven of the eight men sought a writ of habeas corpus and argued that their trial was unlawful due to its violation of the Fifth and Sixth Amendments as the President had exceeded his authority by establishing military commissions. In a unanimous decision, authored by Chief Justice Harlan Stone, the court declared that the conspirators' purpose was to sabotage targets belonging to the United States and they violated the rule of law and were officially declared as enemy combatants. Additionally, Chief Justice Stone argued that since Congress had authorized trial by military commission for enemy combatants under the Articles of War, it can thereby be concluded that the President did not exceed his wartime authority [24]. This decision was significant as it not only expanded presidential war powers compared to the restriction of those powers by the Supreme Court in the Civil War era, the decision also narrowed the scope of the Ex Parte Milligan ruling by allowing for trials conducted by military commissions in specific instances of trying unlawful enemy combatants. Hence, after several decades of the Ex Parte Milligan decision, the Ex Parte Quirin decision narrowed the scope of when trials by military commissions could be conducted displaying the evolving interpretation of presidential war powers in different eras and circumstances.
The most prominent Supreme Court case of this era came towards the end of the war in Korematsu v. United States (1944), where the court considered whether both the legislative and the executive branch went beyond the scope of their war powers by restricting the rights of Japanese Americans [25]. In Korematsu, the crux of the case relied on the constitutionality of Executive Order 9066, which was established in February 1942 and required Japanese Americans to relocate from military areas and surrounding communities to internment camps for the purpose of national security. After the order was established, Fred Korematsu, a Japanese-American man, who defied the order by failing to report to the internment camps, was arrested for violating the order and was convicted in a federal district court. He was given the sentence of five years of probation [26]. The case was appealed to the Supreme Court and in a 6-3 decision, the Court declared that the executive order was constitutional under the reasoning that it was out of military necessity. In the majority decision, Justice Hugo Black reasoned that the executive order was both constitutional because it did not display racial prejudice and prevented the west coast from potential invasion. In addition, the court argued that Congress had already established the law, which reinforces judicial deference, the notion that the role of the judicial branch is to pass judgment on the law rather than make it. Korematsu follows the line of the previous cases made in this era as the interpretation of presidential war powers became narrower and curtailed to the circumstances of the war.
After the end of the Second World War, the United States had been involved in the Korean War under the Truman Administration. The Korean War, which occurred from 1950-1953, was a conflict between the Democratic People’s Republic of Korea and the Republic of Korea, and the conflict heightened when the former invaded the latter with the aid of the Soviet Union. As a result, the United States became involved through the United Nations in 1950 [27]. In April 1952, President Harry S. Truman issued an executive order instructing the Secretary of Commerce, Charles Sawyer, to seize the operation of most of the nation’s steel mills. As a result of this contentious action, The Supreme Court case Youngstown Steel & Tube v. Sawyer, argued in 1952, asked the question of whether the President had the constitutional right to seize the operation of steel mills during wartime. In a 6-3 opinion for Youngstown Steel & Tube, Justice Hugo Black argued that the President did not retain the executive authority to take possession of private property as it had not been enshrined in a constitutional statute. Hence, President Truman’s decision to seize the mill was unconstitutional as it was not in his presumed right as the “Commander-in-Chief” to settle labor disputes [28]. This is significant as the court defines the role of the President to not make the law but to execute it. Youngstown Steel & Tube v. Sawyer illustrates that this era was not marked by a complete expansion of executive authority, but rather, that the Court also emphasized judicial review and reaffirmed that effective separation of powers is essential to the foundation of the United States of America.
The era of the Second World War and its influence into the latter part of the twentieth century was composed of significant landmark decisions that led to the reinterpretation and the expansion of presidential war powers. From Ex Parte Quirin to Korematsu v. United States, the executive authority of the president increased as Ex Parte Quirin provided a narrower interpretation of the Civil War era case Ex Parte Milligan by legitimizing the ability for trial by military commissions for unlawful enemy combatants. Similarly, Korematsu v. United States declared that Executive Order 9066 was constitutional as the establishment of internment camps were not racially motivated but it was taken in measure to secure the west coast in the face of a potential invasion. In comparison to the Supreme Court cases in the Civil War era, the Supreme Court in the Second World War era granted more presidential war powers through the practice of judicial deference. However, as the court expanded presidential war powers, it limited the boundaries of executive authority. In the case of Youngstown Steel & Tube v. Sawyer, the court reemphasized the significance of separation of powers and the court’s role in that by adjudicating the law and interpreting the actions of its supplementary branches.
IV. The Global War on Terror
On September 11, 2001, a series of aerial attacks were conducted by militant groups associated with al-Qaeda, an Islamist militant group, on American soil. New York City and Washington D.C. were both attacked and with mass casualties and destruction at the beginning of the twenty-first century [29]. The attacks fundamentally reshaped the global political landscape and international security policies around the world [30]. Shortly after the attacks, Congress passed the Authorization for Use of Military Force (AUMF) on September 18, 2001 to grant the President the authority to utilize all “necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United states by such nations, organizations, or persons” [31]. Consequently, as a result of the attack and the creation of AUMF, President Bush’s “global war on terror” was in full efforts in the subsequent years to eradicate the seeping influences of terrorism around the world. The Global War on Terror was deemed as the “new cold war,” but unlike fighting against Soviet Communism, this time it was in efforts to eradicate the influence of terrorism around the world [32]. This new war required a strong executive; however, enforcing strong executive actions sparked points of controversy surrounding its legality and the true legitimacy of executive authority during a contentious period. These questions and debates around legal issues soon came before the Supreme Court in a series of court cases known as the “terror cases” that reshaped the court’s view of executive authority and presidential war powers [33].
These Supreme Court’s “terror cases” were constitutional cases dealing with the implications of the terrorist attack on American soil on September 11, 2001, and its direct consequences. The first terror case was argued in 2004 under Rasul v. Bush where the court dealt with the question of whether the court system within the United States had the appropriate jurisdiction to hear appeals filed by foreign nationals that were held by U.S. military officials in Guantanamo Bay. Rasul v. Bush was a suit brought forth by men captured by the United States in Afghanistan or Pakistan during the Global War on Terror. The petitioners argued that these men were detained by the United States military and placed into Guantanamo Bay. As a result, the petitioners filed a writ of habeas corpus questioning the legality of their detention and argued that the Fifth Amendment had been violated because they were not granted an attorney or access to a court. However, the respondents in the suit, the federal government, argued that these individuals were not U.S. citizens, and thus, federal courts did not have jurisdiction to hear their case. Additionally, the argument that the United States did not have sovereignty on this matter was also forwarded as Guantanamo Bay was located in Cuba, which meant the case was not under the federal jurisdiction of the United States [34]. Now, in regards to this issue of whether the court system within the United States had jurisdiction to grant the appeal filed by non-U.S. citizens held by the United States in Guantanamo Bay was at the nexus of the court case. To this, the Supreme Court ruled in a 6-3 decision that the courts did have a jurisdiction to listen to the appeals due to the control exercised by the United States in Guantanamo Bay. Hence, since the military rights were exercised, it was sufficient to assume that habeas corpus rights applied to the individuals who filed the appeal [35]. This ruling is significant as it extends habeas corpus rights to foreign nationals due to the fact that the United States Military, not Cuba, had sovereignty over the functionality of Guantanamo Bay and allows for the courts to have jurisdiction to hear these matters.
The landmark decision set in Rasul v. Bush decision was issued on the same day as another Supreme Court case dealing with the subject powers of executive authority and its implications. This case came to be known as Hamdi v. Rumsfeld in which the Court was tasked with determining whether or not a detained U.S. citizen in Guantanamo Bay had his Fifth Amendment rights violated. Hamdi v. Rumsfeld established that Yaser Hamdi, the petitioner, was an individual who was detained in Afghanistan by the military and transported to Guantanamo Bay under the fact that he was declared as an “enemy combatant.” However, it was soon revealed that Hamdi was an American citizen and was later transferred to a prison in Virginia. As a result, his father filed a writ of habeas corpus and his lawyer argued that the government had violated Hamdi’s Fifth Amendment right to due process because they did not conduct a trial by court. However, the federal government, the respondent in this case, had argued that it was under the jurisdiction of presidential war powers to restrict the United States court system in times of emergency and in cases of combatting “enemy combatants” of the United States. This controversial case made it to the Supreme Court and the court was tasked with answering two questions. The first question was regarding the government’s actions and whether it had violated Hamdi’s right to due process in the Fifth Amendment. Next, the court was also addressed with the issue of whether the constitutional doctrine of separation of powers requires judicial deference to the executive for what he deems as an “enemy combatant,” American citizen or not [36]. In regards to this complex issue, the Supreme Court issued a plurality opinion where six justices agreed that the federal government cannot restrain the ability of a citizen in the United States to have access to a trial conducted by a neutral arbiter to determine the lawfulness of his detention. However, the Court’s plurality ruled against the fact that the constitutional doctrine of separation of powers meant the judicial deference had to be held and the Court did not have the jurisdiction to hear Hamdi’s petition for a writ of habeas corpus [37]. Hence, Hamdi v. Rumsfeld was a landmark ruling that challenged the implications of restricting citizens in the United States’ right to due process and the right to a trial in front of a neutral party. It is important to consider that Rasul v. Bush and Hamdi v. Rumsfeld, both decisions issued on the same day, marked the beginning of the Supreme Court’s interpretation of the “terror cases” and established legal precedents on the matter of executive authority during war time and the extent of which a president could exercise his war powers. The cases built upon each other and narrowed the scope of executive authority and its direct consequences in the twenty-first century.
The “terror cases” did not end with Rasul v. Bush and Hamdi v. Rumsfeld as the issues were deliberated until the end of the decade. Two years later, in 2006, the court listened to another landmark case known as Hamdan v. Rumsfeld, where it was faced with two important questions building upon the two preceding cases. These questions asked whether the enumerated rights under the Geneva Conventions could be enforced through the federal court system by the principle of habeas corpus. Next, the issue of military commissions came before the court just like it had in Ex Parte Milligan and Ex Parte Quirin. However, this time, the court was tasked to decide where the military commission established to try war criminals was under the authority of Congress or the President of the United States of America. The facts of this case were similar to the preceding ones regarding the writ of habeas corpus as the petitioner, Salim Hamdan, was detained and placed into Guantanamo Bay. As a result, he sought a writ of habeas corpus with a federal district court. However, before a ruling was issued, he was tried under a military tribunal and was declared an “enemy combatant” to the United States. Days after, the district issued a writ of habeas corpus which was later reversed by the court of appeals. Hence, the case made it to the Supreme Court and the Court in a 5-3 decision answered that neither Congress nor the President had the right to set up these military commissions; hence, they had to be complacent with the American law and the larger list of laws of war. Consequently, it was argued that the Geneva Convention could be utilized along with the Uniform Code for Military Justice [38]. These two cases illustrate the evolving nature of presidential war powers and the Supreme court’s interpretation of executive wartime authority. As compared to Ex Parte Milligan and Ex Parte Quirin, Hamdan v. Rumsfeld limited unilateral executive authority in the hands of the President. All together, the “terror cases” played a pivotal role in affirming the Courts’ jurisdiction in hearing habeas corpus petitions from foreign nationals, highlighting due process of a U.S. Citizen to contest his detention and emphasizing the adherence to international standards in wartime. Therefore, striking a balance between national security and the constitutional protection of individual rights even in times of conflict.
V. Conclusion
The issue of presidential war powers has been reinterpreted and debated for years since the inception of the nation and the constitution’s characterization of powers attributed to the president. Presidential War Powers are a necessary component of executive authority in times of conflict when decisive military action must strike a balance between strengthening national security and maintaining civil liberties. The evolving nature of the issue is dependent on the circumstances of each conflict, various methods of utilizing war powers, and uniting the nation in times of conflict. Hence, it would be incorrect to solely interpret the Supreme Court’s rulings on cases as simply increasing or decreasing presidential war powers. Rather, through analyzing these eight cases during different eras, it is important to understand that each case is different, the circumstances of each war is different, and the authority that the president needs for each situation is different. Hence, over time, the scope of presidential powers have just become narrower and specific to when and how a president can utilize his powers. Accordingly, one needs to interpret this issue on a case-by-case basis and understand that each Supreme Court case has made the President’s powers and role as the commander-in-chief more narrower and clearer. It is also important to understand that the scope of war powers are subject to change in the future as this is an issue that is continuously being analyzed and debated. Therefore, this nuanced issue allows us to understand that the interpretation of presidential war powers has been subject to change due to the circumstances of each conflict, the utilization of those powers by each president, and the Supreme Court’s interpretation of those issues during each era.
[1] U.S. CONST. art. 1, § 8, cl. 11
[2] Ted Carpenter, 535 Secretaries, CATO Institute (2012), https://www.cato.org/commentary/535-secretaries-state
[3] U.S. CONST. art. 2, § 2, cl. 1
[4] Scott Bomboy, Lincoln and Taney’s Great Wit Showdown, National Constitution Center (2023), https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown
[5]- Amanda L. Tyler, Courts and the Executive in Wartime: A comparative study of the American and British Approaches to the Internment of Citizens during World War II and Their Lessons for Today, California Law Review (2019),
[6] Michael Boyd, Constitutional Cases Resulting from the 9/11 Attacks, National Constitution Center (2023), https://constitutioncenter.org/blog/constitutional-cases-resulting-from-the-9-11-attacks
[7] Authorization for Use of Military Force, Pub. L. No. 107-40, § 2, 115 Stat. 225 (2001)
[8] Allen Guelzo, The Political Thought of Abraham Lincoln, Hertog Foundation (2015), https://hertogfoundation.org/resources/the-political-thought-of-abraham-lincoln#:~:text=The%20Survival%20of%20Constitutional%20Democracy,scale%20democracy%20in%20the%20world.
[9] Civil War Begins, U.S. Senate, https://www.senate.gov/artandhistory/history/minute/Civil_War_Begins.htm#:~:text=At%204%3A30%20a.m.%20on,beginning%20of%20the%20Civil%20War.
[10] Abraham Lincoln, A Proclamation on the Suspension of Habeas Corpus, The Gilder Lehrman Institute of American History (1862), https://www.gilderlehrman.org/history-resources/spotlight-primary-source/proclamation-suspension-habeas-corpus-1862
[11] Habeas corpus, Legal Information Institute, https://www.law.cornell.edu/wex/habeas_corpus
[12] See [4], Scott Bomboy, Lincoln and Taney’s Great Wit Showdown, National Constitution Center (2023), https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown
[13] See [4], Scott Bomboy, Lincoln and Taney’s Great Wit Showdown, National Constitution Center (2023), https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown
[14] See [4], Scott Bomboy, Lincoln and Taney’s Great Wit Showdown, National Constitution Center (2023), https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown
[15] Habeas corpus, Britannica, https://www.britannica.com/topic/habeas-corpus
[16] Ex parte Milligan, Oyez, https://www.oyez.org/cases/1850-1900/71us2
[17] Ex Parte Milligan, Britannica, https://www.britannica.com/event/Ex-Parte-Milligan
[18] World War II, Britannica, https://www.britannica.com/event/World-War-II
[19] Speech by Franklin D. Roosevelt, New York (1941) (on file with the Library of Congress), https://www.loc.gov/resource/afc1986022.afc1986022_ms2201/?st=text
[20] Pearl Harbor Attack, Britannica, https://www.britannica.com/event/Pearl-Harbor-attack/The-attack
[21] S.J. Res. 116, Declaration of War on Japan (1941), https://www.visitthecapitol.gov/artifact/sj-res-116-declaration-war-japan-december-8-1941#:~:text=On%20December%208%2C%201941%2C%20Congress,388%E2%80%931%20in%20the%20House.
[22] Atomic Bombings of Hiroshima and Nagasaki, Britannica, https://www.britannica.com/event/atomic-bombings-of-Hiroshima-and-Nagasaki
[23] Ex parte Quirin, Oyez, https://www.oyez.org/cases/1940-1955/317us1
[24] See [23], Ex parte Quirin, Oyez, https://www.oyez.org/cases/1940-1955/317us1
[25] - Korematsu v. United States, Oyez, https://www.oyez.org/cases/1940-1955/323us214
[26] Facts and Case Summary - Korematsu v. U.S., Administrative Office of the United States Courts, https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-korematsu-v-us
[27] Korean War, Britannica, https://www.britannica.com/event/Korean-War
[28] Youngstown Sheet & Tube Company v. Sawyer, Oyez, https://www.oyez.org/cases/1940-1955/343us579
[29] September 11 Attacks, Britannica, https://www.britannica.com/event/September-11-attacks
[30]The Global Impact of 9/11: Twenty Years On, Wilson Center (2021), https://www.wilsoncenter.org/event/global-impact-911-twenty-years
[31] See [7], Authorization for Use of Military Force, Pub. L. No. 107-40, § 2, 115 Stat. 225 (2001)
[32] Daalder & Lindsay, Nasty, Brutish and Long: America’s War on Terrorism, Brookings Institution (2001), https://www.brookings.edu/articles/nasty-brutish-and-long-americas-war-on-terrorism/
[33] See [6], Michael Boyd, Constitutional Cases Resulting from the 9/11 Attacks, National Constitution Center (2023), https://constitutioncenter.org/blog/constitutional-cases-resulting-from-the-9-11-attacks
[34] Rasul v. Bush, Oyez, https://www.oyez.org/cases/2003/03-334
[35] Rasul v. Bush, 542 U.S. 466 (2004), Justia, https://supreme.justia.com/cases/federal/us/542/466/
[36] Hamdi v. Rumsfeld, Oyez, https://www.oyez.org/cases/2003/03-6696
[37] See [36], Hamdi v. Rumsfeld, Oyez, https://www.oyez.org/cases/2003/03-6696
[38] Hamdan v. Rumsfeld, Oyez, https://www.oyez.org/cases/2005/05-184
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