3. Checks and Balances The Imperial Presidency

4. Youngstown v. Sawyer (1952) Robert H. Jackson’s Opinion Jackson divided Presidential authority vis a vis Congress into three categories, ranked in descending order of legitimacy: (1) those cases in which the President was acting with express or implied authority from Congress, (1) those cases in which the President was acting with express or implied authority from Congress, (2) cases in which Congress had thus far been silent, and (2) cases in which Congress had thus far been silent, and (3) cases in which the President was defying congressional orders. He classified this case as falling within the third category. (3) cases in which the President was defying congressional orders. He classified this case as falling within the third category.

5. The Attorney General Gonzales in a speech at Georgetown University on January 24, 2006 said: “Just a few days after the events of September 11th, Congress enacted a joint resolution to support and authorize a military response to the attacks on American soil. In this resolution, the Authorization for Use of Military Force, Congress did two important things. First, it expressly recognized the President’s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” Second, it supplemented that authority by authorizing the President to, quote, “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” in order to prevent further attacks on the United States.” NPR: Key Figure in Wiretapping Suit Goes Public NPR: Key Figure in Wiretapping Suit Goes Public

6. Limiting the Bush Administration’s War On Terror Detainee Treatment Act of 2005 The amendment was added to the Defense Appropriations Act of 2006 by Senator John McCain. The amendment was added to the Defense Appropriations Act of 2006 by Senator John McCain. The amendment prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay, by confining interrogations to the techniques in Army Field Manual. The amendment prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay, by confining interrogations to the techniques in Army Field Manual. President Bush’s Response: "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.“ (Signing Statement) President Bush’s Response: "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.“ (Signing Statement) NPR: Scalia Enters Debate on Constitution and Torture NPR: Scalia Enters Debate on Constitution and Torture

7. Reining in the Bush Administration’s War On Terror “Enemy Combatants” Hamdi v. Rumsfeld (2006) & Hamdan v. Rumsfeld (2006) Precedents that reined in the Imperial Presidency: 1. Ex Parte Milligan (1866) & Ex Parte Merryman (1866) 2. Ex Parte Quirin (1942) 3. Youngstown v. Sawyer (1952) “We have long made it clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Justice O’ Connor, Hamdi Meet the JAG Lawyer Who Prompted Bush's Detainee Bill Meet the JAG Lawyer Who Prompted Bush's Detainee Bill

8. War Powers Act of 1973 Rein in the Imperial Presidency A response to the way LBJ escalated the war in Vietnam. A response to the way LBJ escalated the war in Vietnam. An attempt to limit the power the Gulf of Tonkin Resolution had given the president. An attempt to limit the power the Gulf of Tonkin Resolution had given the president.