[Q]The U.S. Supreme Court and The Imperial Presidency
How President Bush Is Testing the Limits of His Presidential Powers
By JOHN W. DEAN
----
Friday, Jan. 16, 2004
Can the President of the United States arrest any American he suspects of being a terrorist and toss him in a military brig, deny him a lawyer, omit to bring any charges against him -- yet indefinitely keep him imprisoned nonetheless?
Can the President kidnap foreigners charged with violating federal law, and bring them to the United States to stand trial? How about Osama bin Laden, for starters?
These are only a few of the issues raised by cases now pending before the U.S. Supreme Court that will examine the limits of presidential powers. As David Savage, the legal writer for the Los Angeles Times, has noted, this is a remarkable collection of cases.
"[T]he justices have voted to take up five cases that test the president's power to act alone and without interference from Congress or the courts," Savage explains. The description of these cases, as Savage has ably summarized them, is startling: "They involve imprisoning foreign fighters at overseas bases, holding American citizens without charges in military brigs, preserving the secrecy of White House meetings, enforcing free-trade treaties despite environmental concerns, and abducting foreigners charged with U.S. crimes."
What the Supreme Court has placed on its agenda, in short, is the Imperial Presidency -- that is, the Presidency in which the Executive largely acts alone, pushing the Constitution to the limits and beyond. And how the Justices deal with this overwhelmingly important topic could affect the reelection prospects of the Bush presidency, for, as David Savage notes, at least four of the five rulings are anticipated to be handed down during the summer of 2004 -- right in the middle of the presidential campaign.
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The Executive Power Cases the Court Will Hear Soon
As I noted at the start of this column, it has been three decades since the Court will have tackled such important presidential power questions -- with such potential political implications for a presidential race. For that reason, the five cases that raise these questions should be on the radar screen of all president -- and Supreme Court -- watchers.
The cases are:
Sealed Case. A case so secret it does not appear on the Court's docket, and the Solicitor General simply refers to it as "this matter ? that is required to be kept under seal." In fact, it is not all that secret. It involves Mohamed Kamel Baellahouel, who wants the Court to rule on whether he was improperly secretly jailed. The government want to argue its case in secret. But some twenty news organizations are opposing this extreme secrecy.
Hamdi v. Rumsfeld. This case raises the rights of an American citizen -- Yaser Hamdi -- who was captured overseas and held in the United States as an "enemy combatant." Hamdi was arrested in Afghanistan.
Rasul v. Bush, and Al Odah v. United States. These cases address the habeas corpus rights of aliens detained at the U.S. base in Guantanamo Bay, Cuba. The government is maintaining that these aliens do not have the right to file habeas corpus petitions in U.S. federal courts.
Padilla v. Rumsfeld. This case involves Jose Padilla, a U.S. citizen who is being held indefinitely, in a military prison, as an "enemy combatant." He was arrested when deplaning in Chicago. (Thus, his case may be treated differently from that of Hamdi, who was arrested abroad, in Afghanistan.) The Second Circuit, in a 2-1 ruling, held that Padilla's detention violated the Non-Detention Act of 1971, which asserts that no citizens may be held by the federal government "except pursuant to an act of Congress." The Government is appealing, claiming that the President has power to unilaterally cause such detentions to occur.
Cheney v. Judicial Watch and Sierra Club. This case involves the right of the vice president (and, by implication, of the president) to refuse to turn over documents in a civil lawsuit. The suit seeks to determine if Cheney violated the Federal Advisory Committee Act (the law that forced First Lady Hillary Clinton to open up her sessions on health care). [/Q]
The rest of the article is well worth the read. Bush is more like Nixon according to John Dean. Actually, he has expanded the power of the presidency more than Nixon. The Supreme Court put Nixon back into his place. It will be interesting to see if the Supreme Court will do so to this President.
http://writ.news.findlaw.com/dean/20040116.html
How President Bush Is Testing the Limits of His Presidential Powers
By JOHN W. DEAN
----
Friday, Jan. 16, 2004
Can the President of the United States arrest any American he suspects of being a terrorist and toss him in a military brig, deny him a lawyer, omit to bring any charges against him -- yet indefinitely keep him imprisoned nonetheless?
Can the President kidnap foreigners charged with violating federal law, and bring them to the United States to stand trial? How about Osama bin Laden, for starters?
These are only a few of the issues raised by cases now pending before the U.S. Supreme Court that will examine the limits of presidential powers. As David Savage, the legal writer for the Los Angeles Times, has noted, this is a remarkable collection of cases.
"[T]he justices have voted to take up five cases that test the president's power to act alone and without interference from Congress or the courts," Savage explains. The description of these cases, as Savage has ably summarized them, is startling: "They involve imprisoning foreign fighters at overseas bases, holding American citizens without charges in military brigs, preserving the secrecy of White House meetings, enforcing free-trade treaties despite environmental concerns, and abducting foreigners charged with U.S. crimes."
What the Supreme Court has placed on its agenda, in short, is the Imperial Presidency -- that is, the Presidency in which the Executive largely acts alone, pushing the Constitution to the limits and beyond. And how the Justices deal with this overwhelmingly important topic could affect the reelection prospects of the Bush presidency, for, as David Savage notes, at least four of the five rulings are anticipated to be handed down during the summer of 2004 -- right in the middle of the presidential campaign.
-----------------------------------------------------------------------------------
CUT
------------------------------------------------------------------------------------
The Executive Power Cases the Court Will Hear Soon
As I noted at the start of this column, it has been three decades since the Court will have tackled such important presidential power questions -- with such potential political implications for a presidential race. For that reason, the five cases that raise these questions should be on the radar screen of all president -- and Supreme Court -- watchers.
The cases are:
Sealed Case. A case so secret it does not appear on the Court's docket, and the Solicitor General simply refers to it as "this matter ? that is required to be kept under seal." In fact, it is not all that secret. It involves Mohamed Kamel Baellahouel, who wants the Court to rule on whether he was improperly secretly jailed. The government want to argue its case in secret. But some twenty news organizations are opposing this extreme secrecy.
Hamdi v. Rumsfeld. This case raises the rights of an American citizen -- Yaser Hamdi -- who was captured overseas and held in the United States as an "enemy combatant." Hamdi was arrested in Afghanistan.
Rasul v. Bush, and Al Odah v. United States. These cases address the habeas corpus rights of aliens detained at the U.S. base in Guantanamo Bay, Cuba. The government is maintaining that these aliens do not have the right to file habeas corpus petitions in U.S. federal courts.
Padilla v. Rumsfeld. This case involves Jose Padilla, a U.S. citizen who is being held indefinitely, in a military prison, as an "enemy combatant." He was arrested when deplaning in Chicago. (Thus, his case may be treated differently from that of Hamdi, who was arrested abroad, in Afghanistan.) The Second Circuit, in a 2-1 ruling, held that Padilla's detention violated the Non-Detention Act of 1971, which asserts that no citizens may be held by the federal government "except pursuant to an act of Congress." The Government is appealing, claiming that the President has power to unilaterally cause such detentions to occur.
Cheney v. Judicial Watch and Sierra Club. This case involves the right of the vice president (and, by implication, of the president) to refuse to turn over documents in a civil lawsuit. The suit seeks to determine if Cheney violated the Federal Advisory Committee Act (the law that forced First Lady Hillary Clinton to open up her sessions on health care). [/Q]
The rest of the article is well worth the read. Bush is more like Nixon according to John Dean. Actually, he has expanded the power of the presidency more than Nixon. The Supreme Court put Nixon back into his place. It will be interesting to see if the Supreme Court will do so to this President.
http://writ.news.findlaw.com/dean/20040116.html