Presidental powers Essay

In 2008, The dictatorial court of justice heard and decided a subject involving a fundamental right of citizens, that of habeas principal. Habeas operate is the right of an accuse person to go before a magistrate (judge) and hear and react to the charges under which they are universe held. In this fictitious charactericular grammatical field of study, Boumediene v. Bush (2008) a total of complications are involved in what at start blush appears to be a relatively simple determi republic. Throughout history, the administrator tree come a recess has assumed extra- extreme occasions in clock of fight.A troublesome aspect of this phenomenon is the accompaniment that the executive director Branch itself nigh oft quantify defines the term and limitations of its own major major power. Historic completelyy, the decision maker Branch has acted in clock of contendfare as it pleased, pleading the exigencies of fight, and has deferred judgments about their serves u ntil after the point. (Smith, 1997) The Executive has excessively had an adversarial relationship with some(prenominal) the legislative and Judicial Branches with reckon to these issues.Despite supply in the constitution designed to exclude much(prenominal) evetualities, the reality is that, in judgment of convictions of war, all the branches of government are complicit in granting the executive branch dictatorial powers, including the cogency to suspend habeas corpus. (Smith, 1997) The flexing of executive muscle during times of war began in the united terra firmas as early as 1798. prexy buttocks Adams encouraged congress to pass the terra incognita and Sedition Acts, which severely curtailed speech and score criticisms of the government, . Sedition Acts 1798) and gave the Executive the power to deliver non-citizens the Executive deemed dangerous to the peace and preventive of the unify States. (Alien Act 1798) The fact that relation passed these bills elabora tes a number of informative primal points regarding the issue. First, the Alien Act avoided thoroughgoing contravene by designating as its targets non-citizens. (Alien Act 1798) Also, Congress, as an entity of the government, felt that the Sedition Act served them as well as the executive. (Sedition Acts 1798) A bring forward point here is that the exigent dowery in this role consisted of an unannounced war. central the logic behind allowing extra- radical presidential power during war is the fact that the executive shadowernot declare war, congress must do this. (Smith, 1997) Thus, the circle surrounding the Alien and Sedition Acts initiated a dubious and dangerous precedent wherein the chairwoman is allowed to determine when and if a state of war exists in order to act extra-constitutional powers. It should be noted that these Acts, and Adams exertions under them, did not go unchallenged. (Smith, 1997) They gave opusicular strength to the Jeffersonian Republicans usur p that Federalist government exercised too much power.They also provoked Kentucky and Virginia to publish resolutions promoting the notion of State sovereignty. (Virginia and Kentucky Resolutions 1798-9) The outrage caused by these truths became a major(ip) factor in Adams loss to Jefferson in the election of 1800. (Smith, 1997) In a sense, thence, unrivalled could argue that the Constitutional design of patronize elections remedied the abuse of executive power. This argument, however, ignores the failure of the checks and reposes carcass to correct the problem. Ironically, the next President to show the use of extra-constitutional authority during an un state war was Thomas Jefferson. Smith, 1997) He attempted to do the Embargo Act of 1807 by charging violators with treason.This action was quickly repudiated by the federal courts. (Smith, 1997) In this instance, checks and balances worked. It should be noted, however, that Jefferson only acceded to the will of the chat ups because he did not feel it a fitted cause to ignore them. (Smith, 1997) While Andrew capital of Mississippis tenure as president served as a model for ignoring both checks and balances, and states rights, he did not bother to defense his actions as the exigencies of a state of war(Smith, 1997).This being the case, while his administration did serve to illustrate a great weakness in the system of checks and balances, that of lack of enforcement power, it is not oddly relevant to this thesis. The root president to exercise extra-constitutional power during a declared war was Abraham Lincoln. (Smith, 1997) Lincoln first suspended habeas corpus in areas in lawlessness against the fall in States. One could argue on a legal basis that he did zilch particularly unconstitutional in this case because the areas in question were in rebellion and his authority over them dubious at best. Smith, 1997)However, when Lincolns policy-making opponents in the loyal fall in States began voicing immunity to his act, he suspended Habeas Corpus end-to-end the nation in 1862, and began jailing citizens for criticizing his actions. (Lincoln, 1862) Additionally, he began to follow American citizens in legions judicial system courts for treason, precipitating the death penalty in some cases. (Smith, 1997) It wasnt until 1866, after the war and Lincolns death that the Supreme Court rejected Lincolns actions, restored habeas corpus, and set aside a military tribunals sentence. Ex parte Milligan, 1866) defence reaction of the writ, argued Justice Davis for the Court, do it impossible for the accused to attain redress from the admittedly one-sided military tribunal. (Ex parte Milligan, 1866) During WWII, the issue of individual constitutional rights of citizens during war time again reared its head with Executive Order 9066.This order authorised the Military to designate citizens of Nipponese agate line as dangerous, (Roosevelt, 1942)deprive them of property and confine t hem in relocation camps without charge and with no burden of proof to justify their incarceration. Roosevelt, 1942) This action is frightening for a number of reasons first, it was aimed at citizens, not non-citizens, it clearly violated several(prenominal) elements of the constitution and virtually every part of the Bill of Rights, (Roosevelt, 1942) it went unchallenged by most of the United States citizenry, and it was essentially upheld by the US Supreme Court in 1944. (Korematsu v. United States) The courts defense of the actions taken pursuant to Executive Order 9066, that is, Japanese Exclusion and Interment, was to argue that the exigencies of war made it necessary.The court inexplicably dismissed the notion that the temperament of the order itself was racist, and condoned the actions taken under it as necessary for the security of a nation at war. (Korematsu v. United States, 1944) The relationship of the legislative branch to these circumstances, going all the counsel b utt to 1798, is complicit. They passed the sedition acts, passed laws in uniformity with Lincolns findings, and offered no objections to Roosevelts behavior.It wasnt until the era of Vietnam that the Legislative branch began to actively oppose executive miscarry using war as an excuse. (Smith, 1997) When Lyndon Johnson, and then Richard Nixon used executive power to lead an less-traveled war, Congress responded with the contend Powers Act. (1973) This law makes pointed and explicit references to the Constitution and frames itself as restoring the constitutional balance of power by change the time and constitution with which the President can act militarily without the consent of congress.This is the first time that Congress has recognized the constitutional problems associated with undeclared wars. (War Powers Act, 1973) All of this history is the footing upon which executive, judicial and legislative action occurred with respect to the war on terrorism in the post- 9-11 Uni ted States. The Executive has informally redefined the disposition of war, and in so doing, has effectively transposed the balance attempted by the War Powers Act. Smith, 2007)The genius of checks and balances, since 2001, has regressed to WWII levels of abuse, but this time without even the nominal justification of a declared war. Political considerations of short-sighted politicians led to the passage and renewal of the patriot Act of 2001.While most of this law contains reasoned measures to increase interior(prenominal) security, section 106 contains passing troublesome actors line in that it appears to give the executive a blank check when dealing in activities that are counter to terrorist activities.It reads, in part when the United States is engaged in fortify hostilities or has been attacked by a contrasted country or foreign nationals, seize any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign cou ntry that he determines has planned, authorized, aided, or engaged in such(prenominal) hostilities or attacks against the United States and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or progress of these purposes. Patriot Act of 2001 HR 3162 RDS (2001) (italics added) low this umbrella, provisions, such as unwarranted cable taps at bottom the United States change by reversal nominally legal. The federal courts, including the Supreme Court, pitch rallied around some of the provisions of the Pat riot Act, while rejecting others. A key part of the act Scrutinized by Supreme Court is the denial of habeas corpus to enemy combatants held in Guantanamo Bay.In 2004, the Court determined that such enemy combatants had the right to petition for habeas corpus. (Rasul v.Bush) The argumentation within the argument held that despite the fact that the area of detention in this case was Guantanamo Bay in Cuba, the U. S. held sufficient jurisdiction that the right of Habeas Corpus did indeed apply. (Rasul v. Bush, 2004) This case opened the door to detainees challenging the nature of their detention on constitutional grounds. For the first time, the Courts heard circumstances and conditions of detainees and were able to make the constitutionality of these activities. (Smith, 2007) Finally, in 2008, a deeply split Supreme Court took the final criterion in securing detainees rights under the constitution by allowing them to appeal their detention to civilian courts.This ending states that the president had acted unconstitutionally in denying civilian due process. (Boumedien v. Bush, 2008) The fact that this case was extremely semipolitical in nature, having potentially world-shaking impact on the presidential elections, illustrates a fundamental shift in the balance of power between the three branches of government. The power of the purse by which Congress could nominally control military actions by directional backing has been blunted by political considerations. Members of Congress cannot advocate cutting or eliminating funding for operations already in progress, since that action would manifestly compromise security, and bring out the lives of US military combatants.To advocate for funding cuts to military operations would be political suicide thus the pendulum of War Powers has shifted back to the executive. Thought the constitution grants the singular power to declare war to congress, it is frustratingly vague as to what constitutes such a declaration. (Smith, 1997)That ambiguity has been employ by the Executive Branch to handgrip the country mired in an unpopular war, and to exercise significant extra-constitutional powers both within and outside of the United States. While the nature of the dynamic between the Legislative and Executive branches in matters pertaining to war have historically been amiable, in the case of Vietnam and afterward, the relationship has been harebrained and hostile.