Congress, the Commander-in-Chief, and the Separation of Powers After Hamdan

Abstract:     
In Hamdan v. Rumsfeld, the U.S. Supreme Court held that military tribunals established by President Bush were unlawful because they were inconsistent with the Uniform Code of Military Justice, concluding that, Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. Moreover, the Court reached this conclusion notwithstanding debates in recent years over the Commander-in-Chief override, and the considerable questions as to Congress's power to interpose substantive limitations on the President's war powers.

In this Essay, I compare the rationale behind Justice Stevens's majority opinion in Hamdan with two early Supreme Court decisions - Little v. Barreme and Brown v. United States - and suggest that Hamdan is, or at least appears to be, the reaffirmation of a formalist approach to separation of powers cases in fields where Congress has legislated. Thus, although the key passage from Hamdan cites Justice Jackson's canonical concurrence, the logic of the opinion is more comparable to the forgotten concurrence of Justice Clark.

But the harder question is whether Hamdan's separation-of-powers formalism is anything more than sui generis. Thus, the Essay concludes by suggesting that the common thread, in Little, Brown, Youngstown, and Hamdan, is the strength of the textual argument in favor of Congress's regulatory power. After Hamdan, then, courts and commentators alike may well need to pay far closer attention to the specific congressional powers implicated in each case where the Executive Branch argues that Congress cannot interfere.

Keywords: Hamdan, separation of powers, war powers, military tribunals, Youngstown, Commander-in-Chief, presidential power, wiretapping

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