Roosevelt & C-i-C Powers
Jonathan H. Adler
jha5 at case.edu
Sat Jan 28 15:54:34 PST 2006
I thought the claim of "absolute" authority was in the brief (I don't have
my Fisher handy at the moment). In any event, I think it is clear that the
FDR administration thought it had fairly sweeping powers, and the Supreme
Court (even in Quirin) refused to give the administration all that it
wanted.
JHA
-----Original Message-----
From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Saturday, January 28, 2006 4:43 PM
To: Jonathan Adler; conlawprof at lists.ucla.edu
Subject: Re: Roosevelt & C-i-C Powers
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
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
----------------------------------------------------------------------------
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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