No Class on Wednesday October 24

I think our final class cancellation (already made-up) will be next Wednesday October 24, 2012.

Additional Reading For Tomorrow

For Wednesday's class, in addition to Assignment no. 17, please read the first few pages of Assignment no. 18 (p. 503-512).

War Powers

Here is the problem with understanding which branch has the war power--the Constitution provides that the war power is a shared power, that both the President and the Congress have a not-so-well defined role.

Art. I, section 8 provides that Congress has the power "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

Art. II, section 2 provides that "The President shall be commander in chief" of the armed forces.

 The Supreme Court is very reluctant to intervene in cases involving war and the use of military power.

As Dean Chemerinsky explains: "[T]he Supreme Court rarely has spoken as to the constitutionality of the president using troops in a war or war-like circumstances without congressional approval.  In fact, the only Supreme Court case to address the issue was in the unique context of the Civil war and the actions of the president to deal with the rebellion. In the Prize cases, the Court ruled that the president gad the power to impose a blockade on Southern states without a congressional declaration. No other Supreme Court case has addressed the constitutionality of presidential war making without a congressional declaration of war."

No Class--Wednesday October 10

I will be in Arizona on a 3-school speaking gig from October 8-10.

I will be speaking on "The United States Senate: Equal Representation, the Movement to Repeal the Seventeenth Amendment, and Federalism."

October 11--Global and Local Perspective on Human Trafficking

In lieu of a make-up class for conflicts that are coming in a few weeks, I am assigning you to attend the Human Trafficking conference: October 11 @ Noon in the Auditorium.

People are not property, and human trafficking is a truly global issue of human rights. Each person owns his or her own body, and I think it is very important to learn about the issues that will be discussed at this conference.

It won't be on the exam, but it is very important that we be aware of this issue.

Hamdi v. Rumsfeld--page 417

Yaser Hamdi is an American citizen who was "residing in Afghanistan in 2001. The Government claims he took up arms with the Taliban and was captured in Afghanistan. He is being held in a South Carolina military prison as an "enemy combatant," but he has never been charged with any crime.

Hamdi's father sought a writ of habeas corpus arguing that Hamdi's "detention in the United States without charges, access to an impartial tribunal, or assistance of counsel" violates Due Process.

The Fourth Circuit agreed with the Government's position and held that Hamdi was not entitled to any type of due process or hearing.

The first issue before the Supreme Court was whether the President ("the Executive") has the authority to detain an American citizen apprehended as an enemy combatant in a foreign country.

Does the President have the inherent executive power to do this?

---Art. II, section 1: "The executive power shall be vested in a President of the United States of America."

--Art. II, section 2: " The President shall be commander in chief of the Army and Navy of the United States."

Or, alternatively, does the President have the authority to do this if authorized to do so by Congress?

What are the two acts of Congress that are relevant?

--18 USC sect 4001 provides that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." [designed to prevent situations such as the Japanese internment camps of WW II] p. 419
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--AUMF: One week after 9/11, Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons" engaged in terrorism against the United States. p. 417-418

What does Justice O'Connor and the Plurality hold?

p. 420 The plurality held that "once it is sufficiently clear that the individual is...an enemy combatant,"
the President has legislative authority under the AUMF to detain Mr. Hamdi.

Justice Thomas is the 5th vote in favor of the power to detain under the President's 'war powers" under Art. II: "the President has constitutional authority to protect the national security and...this authority carries with it broad discretion....it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive." p. 433

The second issue is what, if any, procedural rights are available to Hamdi.

The Court held that Hamdi was entitled to due process--at the minimum some kind of meaningful factual hearing.

The case was remanded for a determination of exactly what process was due, but before the remand was held the Government and Hamdi reached an agreement: "In exchange for Hamdi being released from custody, he agreed to leave the country, renounce his citizenship, and never to take up arms against the United States."

Nebraska Marriage Amendment--Standing and 11th Amendment

Nebraska State Constitution » I-29

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I-29. Marriage; same-sex relationships not valid or recognized.

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Source

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416. 

Pls. were gay couples who challenged only the second sentence of the Marriage Amendment. They sued the Nebraska Attorney General to enjoin his enforcement of the second sentence of the law.

Nebraska did not recognize any kind of civil union even before the Marriage Amendment passed. The Attorney General was not involved in any present action to enforce the second sentence.


Do Pls. have standing to challenge the amendment?


Does the 11th Amendment bar this suit against enforcement?