The Supreme Court, Separation of Powers, and the Protection of Individual Rights during Periods of War or National Security Emergency

Abstract

The Supreme Court, Separation of Powers, and the Protection of Individual Rights during Periods of War or National Security Emergency* ROBERT F. TURNER To paraphrase Lincoln, there is little that I could say on the history ofthe Supreme Court’s handling ofcivil-liberties issues during periods ofwar or national emergency that could add or detract from the truly masterlyjob ChiefJustice William Rehnquist has already done in All the Laws But One.1 I highly recommend that book to any who have not yet read it. Because the ChiefJustice has provided such an outstanding overview ofthe subject, I shall depart a bit from what I might otherwise have said on this topic. While I do not intend to challenge the Chief Justice’s book—I would give it a grade of AH—one of my goals this evening is to challenge another popular book. In 1990, my very able friend Professor Harold Koh, ofYale Law School, published a volume called The National Security Constitution. It was se­ lectedby the American Political Science Asso­ ciation forthe 1991 RichardE.NeustadtAward as “the bestbook on the Americanpresidency,” and has been tremendously influential in the academic community.2 In the book, Professor Koh argues against what he called “unchecked executive discretion”3 in foreign affairs. He ar­ gues two points that I believe are fundamen­ tally mistaken. First, he perceives a struggle within the judiciary between two foreign pol­ icyparadigms, each representedby a landmark twentieth-century Supreme Court decision. He then argues thatthe courts have been too reluc­ tant to intervene in this area. Professor Koh’s central thesis is that the Court’s landmark 1936 decision in United States v. Curtiss-Wright Export Corporation* 324 JOURNAL OF SUPREME COURT HISTORY The Court’s 1936 decision in Curtiss-Wright con­ cerned an alleged violation of a prohibition of sales of arms or munitions to certain countries in South America. These men and women worked the produc­ tion line at a St. Louis plant making airplanes for the Curtiss-Wright Corporation. was essentially, to use his word, “trumped” by Justice Robert H. Jackson’s concurring opin­ ion in the 1952 case of Youngstown Sheet & Tube Co. v. Sawyer, often referred to as the “Steel-Seizure Case.”5 Candidly, I think Professor Koh has pre­ sented us with a false dichotomy. I see no fun­ damental conflict between Curtiss-Wright and Youngstown. For more than sixty years, the Supreme Court has been guided by CurtissWright in dealing with issues of foreign af­ fairs. The case has been cited time and again by the Court in literally scores of decisions since 1936, making it the most frequently cited foreign-affairs case in our history. Indeed, it is evident that Justice Jackson himself saw no conflict between his views in the Steel Seizure case and in the earlier Curtiss-Wright case, since he expressly cited Curtiss-Wright as con­ trolling authority for foreign-affairs cases in which the President acts with the concurrence of Congress6—a fact pattern he proceeded to distinguish from that ofthe Steel Seizure case. Those of you who are knowledgeable about Curtiss-Wright will likely realize by the time I am finished that 1 believe the Court achieved the right result—but for the wrong reasons. It remains the seminal case in the area of foreign affairs, however, and I think rightly so. 1 believe that Professor Koh has made a simple but serious error. Because administra­ tion lawyers, in attempting to justify President Truman’s order directing Commerce Secretary Charles Sawyer to seize privately owned steel mills during the Korean War, made reference to his “Commander-in-Chief” and “war” powers, Koh asks us to view the case as comparable to Curtiss-Wright. Butas Columbia Law School’s Professor Louis Henkin correctly observed in his 1972 volume on Foreign Affairs and the Constitution, “Youngstown has not been con­ sidered a ‘foreign affairs case.’”7 Indeed, the distinction is clear from even a cursory reading ofboth Justice Hugo Black’s majority opinion and Justice Jackson’s concur­ rence. Consider this language from the opinion ofthe Court: The order cannot properly be sus­ tained as an exercise ofthe President’s military power as Commander in Chief of...