Substantive Law Study Support

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)

A Joint Resolution of May 28, 1934, provided: “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.” Violation was made punishable as a crime. The President issued two proclamations, one on the date of the Resolution, putting it into operation; the other on November 14, 1935, revoking the first proclamation.

Held: 1. The Joint Resolution is not an unconstitutional delegation of legislative power to the Executive. 2. The powers of the Federal Government over foreign or external affairs differ in nature and origin from those over domestic or internal affairs. 3. The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

A nationwide steel strike called by the steelworkers’ union prompted the president to issue a proclamation ordering the secretary of commerce to take over the steel mills in order to avoid a national catastrophe. The president believed it was within his constitutional power to order the takeover; the mill owners argued that the president’s order was actually a legislative function that belonged to Congress, and the president was exceeding his constitutional authority. A district court agreed with the mill owners.

Held: The Supreme Court found that the president’s power to issue the order to take over the steel mills needed to originate from Congress or the Constitution, and it did not. The president had no authority to issue the proclamation since this matter did not involve an exercise of his military power or foreign affairs. The judgment of the district court was affirmed.

The Prize Cases: Brig Amy Warwick, 67 U.S. 635 (1862)

Neutrals may question the existence of a blockade, and challenge the legal authority of the party that has undertaken to establish it. One belligerent, engaged in actual war, has a right to blockade the ports of the other, and neutrals are bound to respect that right. To justify the exercise of this right, and legalize the capture of a neutral vessel for violating it, a state of actual war must exist, and the neutral must have knowledge or notice that it is the intention of one belligerent to blockade the ports of the other. To create this and other belligerent rights, as against neutrals, it is not necessary that the party claiming them should be at war with a separate and independent power: the parties to a civil war are in the same predicament as two nations who engage in a contest and have recourse to arms.

The present civil war between the United States and the so-called Confederate States, has such character and magnitude as to give the United States the same rights and powers which they might exercise in the case of a national or foreign war; and they have, therefore, the right to institute a blockade of any ports in possession of the rebellious States.

Ex parte Milligan, 71 U.S. 2 (1866)

Circuit Courts, as well as the judges thereof, are authorized, by the fourteenth section of the Judiciary Act, to issue the writ of habeas corpus for the purpose of inquiring into the cause of commitment, and they have jurisdiction, except in cases where the privilege of the writ is suspended, to hear and determine the question, whether the party is entitled to be discharged.

Held: The Court determined that military rule could not take the place of civil courts in areas where the civil courts and government remained open and operational. Morrison v. Olson, 487 U.S. 654 (1988)

This case presents the question of the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978 (Act). It arose when the House Judiciary Committee began an investigation into the Justice Department’s role in a controversy between the House and the Environmental Protection Agency (EPA) with regard to the Agency’s limited production of certain documents that had been subpoenaed during an earlier House investigation. The Judiciary Committee’s Report suggested that an official of the Attorney General’s Office (appellee Olson) had given false testimony during the earlier EPA investigation, and that two other officials of that Office (appellees Schmults and Dinkins) had obstructed the EPA investigation by wrongfully withholding certain documents. A copy of the Report was forwarded to the Attorney General with a request, pursuant to the Act, that he seek appointment of an independent counsel to investigate the allegations against appellees. Ultimately, pursuant to the Act’s provisions, the Special Division (a special court created by the Act) appointed appellant as independent counsel with respect to Olson only, and gave her jurisdiction to investigate whether Olson’s testimony, or any other matter related thereto, violated federal law, and to prosecute any violations. When a dispute arose between independent counsel and the Attorney General, who refused to furnish as “related matters” the Judiciary Committee’s allegations against Schmults and Dinkins, the Special Division ruled that its grant of jurisdiction to counsel was broad enough to permit inquiry into whether Olson had conspired with others, including Schmults and Dinkins, to obstruct the EPA investigation. Appellant then caused a grand jury to issue subpoenas on appellees, who moved in Federal District Court to quash the subpoenas, claiming that the Act’s independent counsel provisions were unconstitutional and that appellant accordingly had no authority to proceed. The court upheld the Act’s constitutionality, denied the motions, and later ordered that appellees be held in contempt for continuing to refuse to comply with the subpoenas. The Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution, Art. II, 2, cl. 2; the limitations of Article III; and the principle of separation of powers by interfering with the President’s authority under Article II.

Held: 1. There is no merit to appellant’s contention that the constitutional issues addressed by the Court of Appeals cannot be raised on this appeal from the District Court’s contempt judgment. 2. It does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division. 3. The powers vested in the Special Division do not violate Article III, under which executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Article III. 4. The Act does not violate separation of powers principles by impermissibly interfering with the functions of the Executive Branch.

Something to Consider

Assume that Jones, a U.S. citizen, is arrested in the United States and is incarcerated. Can he be denied a right to file a petition for writ of habeas corpus? Can he be tried by a military tribunal? Suppose that the USA Patriot Act of 2001 authorizes the president to suspend the writ of habeas corpus and order a trial by a military tribunal for all suspected terrorists working as agents of foreign powers, would your answer change? (Follows Ex parte Milligan)

The Court suggests that one reason for its decision was that the president made a general claim that confidentiality was important, but he did not claim a “need to protect military, diplomatic, or sensitive national security secrets.” Could a president defeat any subpoena by claiming national security? Should a president be able to do so? (Follows United States v. Nixon)