Roosevelt & C-i-C Powers

Sat Jan 28 13:43:03 PST 2006

Well, that was the one example to which I referring in my question last night.  If I recall my Fisher, Biddle didn't make the CiC argument in his briefs, but did suggest it at oral argument, and Stone nearly jumped out of his seat in incredulity.
  ----- Original Message ----- 
  From: Jonathan Adler 
  To: conlawprof at lists.ucla.edu 
  Sent: Saturday, January 28, 2006 2:29 PM
  Subject: Roosevelt & C-i-C Powers

  The federal government's briefs in Quirin argued that the executive power over enemy combatants was "absolute" and could not be limited by Congress or the courts. (See Louis Fisher, Nazi Saboteurs on Trial at 94 ("Biddle and Cramer underscored their position that the judgment of trying the saboteurs lay solely with the President, and that neither Congress nor the judiciary could interfere with his decisions.")).  This was not their primary argument, as they also maintained that they were acting consistent with relevant Congressional acts, but the argument was made nonetheless.  Of course, the Supreme Court declined to endorse this expansive position in Quirin.  As I recall, Fisher's book also suggests that it was well understood at the time that the saboteurs would be executed no matter what the Supreme Court held. In addition, Roosevelt claimed that the conspirators were not entitled to any process in civilian courts.

  JHA

  ------------------------------

  Jonathan H. Adler

  Associate Professor

  Case Western Reserve University School of Law

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  From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
  Sent: Saturday, January 28, 2006 1:11 PM
  To: Marty Lederman; DavidEBernstein at aol.com; mschor at suffolk.edu; VOLOKH at law.ucla.edu
  Cc: conlawprof at lists.ucla.edu
  Subject: Re: The Left, patriotism, and threats to the Capacity of My In Box

  Sorry:  I meant to add that, to his credit, David was hinting at an actual ConLaw question here, and one actually related to my question of yesterday, to boot! 

  So, on the "merits":

  In what way did FDR and Wilson ever claim "far broader presidential powers" than Bush has ever claimed?  In particular, when did FDR (or Wilson) ever claim the right under the C-i-C Clause to violate duly enacted statutes?  (There actually is an FDR speech in which he threatened this -- but I think it was mostly throat-clearing, in an attempt to browbeat Congress to amend the law.  Can you even imagine Geroge Bush having made a public speech demanding that Congress amend FISA or else he'll violate it?  Not his modus operandi.)  

  I'm not familiar with any FDR threat to execute the Quirin conspirators even in the teeth of a SCOTUS injunction.  Sounds very interesting.  More info, please.

    ----- Original Message ----- 

    From: Marty Lederman 

    To: DavidEBernstein at aol.com ; mschor at suffolk.edu ; VOLOKH at law.ucla.edu 

    Cc: conlawprof at lists.ucla.edu 

    Sent: Saturday, January 28, 2006 9:46 AM

    Subject: The Left, patriotism, and threats to the Capacity of My In Box

    Are there any "secessionist" fans among us?  Any non-patriots (as if that appellation could possibly shed more light than heat)?  Am I the only one who thinks that this listserv has increasingly veered far from its ostensible subject and who yearns for the Good Ol' Days when we actually used to have rigorous, interesting discussions about, uh, constitutional law?  (No, really:  they actually existed for at least a month or two there, back before Bush v. Gore.)  

    I know that's very Twentieth-Century of me, but I'm an old-fashioned guy; and anyway, I have an ulterior motive -- namely, getting info from this learned assemblage on the constitutional (history) question I asked last night.

    P.S.  I do have a very capacious view of what counts as "constitutional law."  Really.  Just sayin' . . . 

      ----- Original Message ----- 

      From: DavidEBernstein at aol.com 

      To: mschor at suffolk.edu ; VOLOKH at law.ucla.edu 

      Cc: conlawprof at lists.ucla.edu 

      Sent: Saturday, January 28, 2006 9:27 AM

      Subject: Re: The Left, patriotism, and threats to the constitutionalorder

      I'm just wondering how many of you secesssion fans think that there should have been secession during WWII, when FDR claimed far broader presidential powers than Bush has ever claimed, and in fact sent the AG to tell the USSC that he was going to execute the conspirators in the Quirin case regardless of what the USSC held in that case?  And let's not even get started on Woodrow Wilson... I sense a distinct lack of historical perspective here.

      In a message dated 1/28/2006 9:06:25 AM Eastern Standard Time, mschor at suffolk.edu writes:

        If love of a quasi-mystical sense of country and not love of constitutional principles now binds the nation together, then President Bush has little to fear when he claims that no law limits his mandate to protect our nation.

      David E. Bernstein
      Visiting Professor
      University of Michigan School of Law
      Professor
      George Mason University School of Law
      http://mason.gmu.edu/~dbernste

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