Challenging the Executive: The Constitutionality of Congressional Regulation of the President's Wartime Detention Policies

I. INTRODUCTION The war on terrorism has involved several clashes on the political home front, with the President and Congress asserting conflicting policies. A recent example is Congress's effort to deny funding to transfer detainees from Guantanamo Bay to the United States for prosecution and to place strict, almost impossible conditions on the President's use of funds to release or transfer detainees to other countries. In the study of national security law, especially during the war on terrorism, "the lion's share of academic attention" has focused on the scenario reflected in Justice Jackson's Youngstown Category II analysis, which examines the President's inherent authority to act in the absence of congressional authorization.1 Yet Youngstown Category III scenarios, where presidential action conflicts with congressional authorization, are "now at the forefront of the most important clashes between the political branches" and deserve more careful attention.2 Most studies using the Youngstown framework focus on the scope of presidential power - either in absence or in contravention of congressional authorization.3 However, the Youngstown framework is also relevant to a crucial correlative question: When are congressionally imposed restrictions on the President unconstitutional? This question arises regardless of whether the President eventually acts in contravention of the will of Congress. Louis Fisher has warned that "[t]he precise jurisdictions and fields of operation for Congress and the President will always elude us."4 Regardless of the difficulty in reaching an ultimate conclusion, a comprehensive framework is necessary for evaluating the scope of Congress's constitutional authority when Congress seeks to limit the President's wartime or foreign affairs authority. This Comment argues that Congress may constitutionally constrain the President as long as the legislative action does not violate a mandatory provision or express restriction of the Constitution and does not impede on an exclusive presidential power. Therefore, an appropriate analytical framework should involve the following considerations: (1) mandatory provisions of the Constitution; (2) express restrictions on the authority of Congress or the federal government; (3) the scope of the relevant constitutional grants of power for each branch; and (4) whether a particular power is exclusively lodged in one branch. As the following discussion will suggest, the constitutionality of a particular restriction is a highly contextual analysis that depends on the specific powers in question. This Comment argues that under this framework, the recent restrictions on the President's authority to prosecute detainees and the restrictions on the transfer of detainees to other countries are constitutional. This Comment will proceed as follows: Part II will present the problem of the conflicting presidential and congressional policies regarding Guantanamo Bay. Part III will present a framework for analyzing the constitutionality of congressional restrictions. Part IV will apply this framework by looking at the constitutional sources and scope of presidential and congressional authority over wartime detention and foreign negotiations. Part V will conclude. II. PRESIDENTIAL & CONGRESSIONAL GUANTANAMO BAY POLICY President Obama faces growing congressional resistance to his detention policies. A brief discussion of the political climate sets the stage for a discussion of the most recent restrictions Congress has placed on the President. A. Political Climate While campaigning for the presidency, Barack Obama promised that, once in office, he would close the detention facilities at Guantanamo Bay, Cuba.5 The Bush Administration had used the detention center to hold suspected terrorists away from the battlefield but outside the reach of the United States judicial system.6 That policy brought strong criticism by political opponents and international observers. …