Double-Checking Executive Emergency Power: Lessons from Hamdi and Hamdan

The "war on terror" launched in the wake of the September 11, 2001 terrorist attacks and the internment of several hundred alleged "enemy combatants" has triggered several important legal issues regarding the status of these detainees and the executive branch's authority to detain them. These questions go to the heart of an unresolved debate about the scope of executive branch emergency power. The Constitution, while vague in its allocation of emergency power, allots some role to each of the three branches. While the executive has historically taken the lead, there are ill-defined limits to executive authority which depend largely on the nature of congressional action. This spectrum of executive authority, which increases proportionately to the level of express congressional approval but may be blocked by congressional limitation, establishes an "executive power baseline" for the current debate over enemy combatant detention, under the rubric established in Justice Jackson's concurring opinion in the Steel Seizure Case. While there may be reasons to consider the executive power baseline as outdated, the Supreme Court still follows it as an organizing principle. This was plain in the tetrad of detainee cases decided by the court between 2004 and 2006 (Rasul v. Bush, Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Hamdan v. Rumsfeld). While some have viewed these cases collectively as a stinging rebuke of executive power by the judiciary, a more careful reading shows the Court exerting a "double-check" in combination with Congress that is fully consistent with the executive power baseline and represents consistent application of the Steel Seizure approach. In none of the detainee cases did the Supreme Court reach issues of inherent constitutional executive authority. Instead, by emphasizing the presence Congressional authorization for certain executive activities, and implicit limitation on others, the Court has forced the political branches to work together. This article examines the ways in which the recent enemy combatant decisions develop, follow and reinforce the double-check approach. It also examines what may be the next great watershed issue in this area, the question whether the courts can ever deploy a judicial "single-check" of government authority. In theory they should do so where the joint action of Congress and the president transgresses constitutional limits applicable to both. The article examines three nascent theories based on preserving Article III jurisdiction, setting limits on the suspension of habeas corpus, and applying principles of criminal-law due process to the conduct of military war-crimes tribunals. Of the three, the article favors the due process approach, which has received its most authoritative development in the concurrences and dissents in World War II detention cases by Justices Frank Murphy and Wiley Rutledge. With the enactment of the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), Congress has now given the executive branch much of the authority it seeks over the detention and trial of enemy combatants. The military commissions that were objects of executive fiat in Hamdan are now legislatively authorized "Article I courts." The article suggests that this act of ownership by Congress does much to remove the constitutional objections the Court raised in Hamdan. It also serves the important democratic function of giving the people an opportunity to react to congressional policy, as they arguably did in the 2006 federal elections. The Court will hear yet another detainee case in the coming term. Although the Court might choose to exert a single-check on the political branches of government on due process clause, suspension clause, or Article III grounds, this is unlikely. While the Court could also scrutinize the wording of the MCA to create a narrow holding based on implicit limits on Congressional authorization, thus once again employing the double-check approach, the more likely outcome is that will sustain limits on federal jurisdiction and await the results of military commission proceedings. This has the merit of showing judicial restraint in a time of emergency, but it also ensures that an unfettered executive does not run amok.