A. Christopher Bryant
University of Cincinnati - College of Law
University of Richmond - School of Law
Hastings Constitutional Law Quarterly, Vol. 29, p. 373, 2002
U of Cincinnati Public Law Research Paper No. 07-35
In 1952, President Harry S. Truman promulgated an Executive Order that authorized federal government seizure of the nation's steel mills to support United States participation in the Korean conflict, but the Supreme Court held that Truman lacked any power to seize the property in Youngstown Sheet & Tube Co. v. Sawyer. In 2001, President George W. Bush promulgated an Executive Order that authorized trial by military commissions of non-U.S. citizens whom the American government suspects of terrorism in domestic cases and concomitantly denied these persons access to the federal courts. This article undertakes an analysis of the Bush Executive Order through the prism of Youngstown and ascertains that the president has no power to bar these domestic terrorism suspects from invoking the jurisdiction of the federal courts.
The article's first section assesses relevant constitutional text, applicable history, and governing case precedent in exploring the development of the critical issues involved in the Bush Order. Next it evaluates legal measures that responded to the September 11 terrorist strikes, focusing on the USA PATRIOT ACT and the Bush Order. The third part examines the police action in Korea during the early 1950s. Next, Youngstown is applied to the Bush Order, showing that the directive is unconstitutional insofar as it precludes federal courts from exercising jurisdiction granted by federal statute. The article concludes by urging the Bush Administration not to invoke the Order's provision that purportedly eliminates any federal court scrutiny of detainment or trials authorized by the directive.
Note: This article was published before the Supreme Court decisions in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld.
Number of Pages in PDF File: 70
Keywords: Constitutional law, Presidential power, federal scrutiny, terrorism
JEL Classification: K33, K42Accepted Paper Series
Date posted: February 5, 2008
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