PART II:
P O I N T S O F C O N F L I C T
B E T W E E N T H E B R A N C H E S
JUDICIAL REVIEW
“Specic guarantees in the Bill of Rights have
penumbras, formed by emanations from those
guarantees that help give them life and substance.”
--Justice William Douglas,
Griswold v. Connecticut (1965)
The U.S. Supreme Court’s power to strike down acts of Congress
and executive actions that conflict with the Constitution is
known as judicial review. This power has been acknowledged
since the Supreme Court’s 1803 decision in Marbury v. Madison,
which was the first time the Supreme Court declared an act of
Congress unconstitutional.
The judiciary’s exercise of judicial review has been an enduring
source of conflict between the federal judiciary and the
legislative and executive branches. In recent years, many
conflicts have centered on two distinct constitutional issues:
first, the right to privacy, and second, federalism (the balance
of power between the federal and state governments). Both
issues, in different ways, demonstrate the challenges the Court
faces in interpreting the language of the Constitution to address
present-day concerns.
The Right to Privacy
A right to privacy is not explicitly mentioned in the
Constitution. The Supreme Court has found, however, that
other explicit rights enumerated in the Constitution contain
an implied right to privacy (enumerated rights are those rights
specifically named in the Constitution). For example, the First
Amendment guarantees a right to private association; the
Fourth Amendment guarantees a right to be secure against
unreasonable search and seizure; the Fifth Amendment creates
a “zone of privacy” in its right against self-incrimination; and the
Fourteenth Amendment protects personal liberty. Moreover,
the Ninth Amendment provides that the enumeration of certain
rights in the Constitution does not deny other unenumerated
rights that are retained by the people.
In a 1965 decision, Griswold v. Connecticut, 381 U.S. 479, the
Court decided that “emanations” from the Constitution’s
enumerated rights form “penumbras” that help give “life and
substance” to constitutional guarantees. (A penumbra is an
area of partial illumination that lies between areas of full
darkness and full light.) The Court implied that the “full light”
DIALOGUE ON THE SEPARATION OF POWERS
of enumerated rights cast a penumbra over, and protect,
unenumerated but related rights. In Griswold, a penumbral
right to privacy in the Constitution was held to protect the
privacy of a marriage. The Court held that marital privacy
included the decision of a married couple to use contraceptive
devices.
Controversy over the right to privacy reached a peak in 1973
with the Supreme Court’s decision in Roe v. Wade, 410 U.S.
113. The Roe decision extended the right of privacy to protect
a woman’s decision to terminate her pregnancy. The right
extended in Roe was qualified, but it placed few restrictions
on the decision to abort a fetus during the first three months,
or first trimester, of pregnancy. The Roe decision located the
right to privacy primarily within the Fourteenth Amendment’s
guarantee that no state can deprive a person of liberty without
due process of law. In a dissenting opinion, Justice Rehnquist
argued against a right to privacy that would protect firsttrimester abortions. “To reach its result,” he argued, “the Court
necessarily has had to find within the scope of the Fourteenth
Amendment a right that was apparently completely unknown to
the drafters of the Amendment.”
Although Roe was decided more than thirty years ago, the
controversy that surrounds the decision has not gone away. In
recent nomination hearings for new Supreme Court justices,
senators from both parties have tried to discover whether the
nominee supports the Roe decision or might limit or overrule
it. The debate over the right to privacy is largely a debate
over how the Constitution should be interpreted. The Court’s
right-to-privacy decisions interpret the Constitution’s language
broadly. But if Roe and related right-to-privacy cases are
controversial because of the expansive reading they give to the
Constitution’s language, restrictive readings of that language
have proved equally controversial.
Federalism
Article I of the Constitution gives Congress the power to
regulate interstate commerce (this provision is known as the
Commerce Clause). It also gives Congress power to pass laws
“necessary and proper” to give effect to its powers. In the
late 1930s, the Supreme Court began to interpret the phrase
“interstate commerce” more broadly. This broad interpretation
of the phrase gave much deference to Congress’s decisions
to pass legislation covering a wide range of activities. These
included a variety of social and environmental, as well as
clearly commercial, issues.
Then, in 1995, the Supreme Court tightened its interpretation of
the Commerce Clause. In 1990, Congress had passed a law called
the Gun-Free School Zones Act. That law made it a federal
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crime “for any individual knowingly to possess a firearm at a
place that the individual knows, or has reasonable cause to
believe, is a school zone.” Alfonso Lopez, Jr., then a 12th-grade
student, brought a concealed gun into his high school in Texas.
He was charged with violating the Gun-Free School Zones Act.
In United States v. Lopez, 514 U.S. 549, a 5-member majority of
the Supreme Court held that Congress had violated limits on its
constitutional powers in passing the act.
The majority’s decision was based on the principle of
federalism. Just as the principle of separation of power divides
government powers among the three branches, the principle
of federalism divides government power between the federal
and the state governments. Powers that the Constitution does
not grant to the federal government are reserved to the state
governments and, ultimately, to the people. The Gun-Free
School Zones Act was, in the words of Chief Justice William
Rehnquist, “a criminal statute that by its terms has nothing
to do with ‘commerce’ or any sort of economic enterprise,
however broadly one might define those terms.”
Four members of the Court disagreed. They argued that the
Court should limit itself to asking whether Congress could
have had a rational basis for determining that the activity in
question could affect interstate commerce. A “rational basis”
test generally defers to a decision of Congress. The Court asks
only whether a reasonable connection could be made between
a law and a legitimate government interest. Justice Breyer, for
example, argued that Congress could rationally believe that
the effect of violent crime on the quality of education might
substantially affect interstate commerce.
As with the right to privacy cases, the federalism decisions have
been a topic of concern among senators in recent Supreme
Court confirmation hearings. Senator Arlen Specter (R-PA), chair
of the Senate Judiciary Committee that conducts hearings on
the confirmation of Supreme Court nominees, has spoken of “an
imbalance in the separation of powers between the Congress
and the court.” He has also expressed his concern with what
he describes as “the denigration by the court of congressional
authority.” He has specifically mentioned the Court’s recent
federalism decisions in these criticisms.
Focus Questions
• Do you think the framers intended to create a Constitution with
language flexible enough to cover issues that were not part of
political debate or government policy in 1787? If so, what are the
limits on how far the Constitution’s language can extend?
• Do you think that judges are obliged to narrowly interpret the
language of the Constitution and limit its meaning to what was
intended by the framers in 1787 or by the framers of subsequent
amendments? If so, how do judges ensure that they have
accurately discovered the framers’ original intent?
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• Do you think the Court should take different approaches to
different provisions of the Constitution? For example, should
language involving individual liberties be read broadly or
narrowly? Why? Would you take the same or a different approach
to language involving limits on government powers? Explain the
reason for your answer.
ADVICE AND CONSENT
“In every exercise of the power of appointing to
ofces, by an assembly of men, we must expect to
see a full display of all the private and party likings
and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who
compose the assembly.”
--Alexander Hamilton, Federalist Paper No. 76 (1788)
Article II gives the President power to nominate federal judges,
ambassadors, members of the cabinet, and other public officials
“by and with the advice and consent of the Senate.”
The Constitution provides little guidance on how the advice and
consent process should work. By placing the nomination power
in Article II, however, it gives the President the upper hand in
selecting nominees—senators cannot choose the nominees,
although they can reject them. George Washington, the first
President, set the pattern for later executive appointments by
insisting that he had sole responsibility for making nominations.
Advice from the Senate would come after the nomination had
been made.
The Senate’s advice and consent role is hardly a “rubber stamp”
for the President. The Senate has shown greater deference to
executive branch appointments that end with a President’s
term. According to the Senate’s website, fewer than two percent
of nominees to executive cabinet positions have been explicitly
rejected. Federal judges, however, have lifetime tenure in their
positions once their nominations are confirmed by the Senate.
Nominees to the highest federal court, the U.S. Supreme Court,
have drawn especially close scrutiny. The Senate reports that
almost one quarter of all Supreme Court nominations have
failed to be confirmed, although failed confirmations became
less common during the twentieth century.
Article I of the Constitution gives the Senate power to
“determine the rules of its proceedings.” Over the course of
its history, the Senate has developed numerous rules and
traditions that affect how the Senate gives its advice and
consent. Today, two of the most important of these rules and
traditions for federal judicial nominations are the use of Senate
committees and the filibuster.
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Senate Committee on
the Judiciary
In 1816, the Senate formalized its use of standing committees—
permanent committees that have specific responsibilities
spelled out in the Senate’s official rules. The Committee on the
Judiciary was among the original committees created. Since the
late 1860s, it has been responsible for reviewing nominations
to the federal judiciary and deciding whether to submit those
nominations to a full vote in the Senate.
Beginning in the twentieth century, the committee’s evaluation
of judicial nominees became more public and more intense. In
1925, Harlan Fiske Stone was the first Supreme Court nominee
summoned to testify before the Judiciary Committee. Since
1955, all Supreme Court nominees have appeared before the
committee, and these hearings are now broadcast live to
the public. Questioning of nominees now typically lasts for
several days, with each member of the committee given several
opportunities to question the nominee on his or her past record
and judicial philosophy.
A disfavored nominee might never make it out of committee
to a full vote on the Senate floor. The committee can simply
refuse to act on the nomination, or it can vote to not send the
nomination on to the full Senate for a vote. If a majority of the
committee members approve of the nominee, the committee
submits the nomination to the full Senate for a vote.
Focus Questions
• If you were in a position to advise the President, would you
recommend that he consult with members of the Senate before
making nominations to the Supreme Court? Why or why not?
If you think consultation would be a good idea, how would the
process ideally work? What weight, for example, should the
President give to the opinion of senators from another party?
• The committees of the Senate allow members to develop
special expertise in some of the many issues that come before
the Senate. Do you think the Judiciary Committee should have the
power to keep a judicial nominee from a full vote in the Senate
if a majority of the committee’s members disapprove of the
nominee? Why or why not?
• Filibusters have been threatened or used against the nominees
of both Democratic and Republican presidents. Do you think
the Senate is within its constitutional powers in using filibusters
to prevent judicial nominees from being confirmed? Why or
why not? Would you approve of a change in Senate rules that
eliminated filibusters in judicial nominations? Explain the reason
for your answer.
The Filibuster
Even if a nominee makes it through committee and has the
support of a majority of the Senate’s members, an organized
minority of at least 40 percent of the senators can block a vote
on the nominee through use of the filibuster.
The filibuster grows from the Senate tradition of providing its
members the opportunity for unlimited debate on issues before
them. Senators opposing a measure before the Senate can
prevent the vote by “filibustering”—refusing to end debate.
The ability to filibuster was limited in the early twentieth
century by the introduction into Senate procedures of a
device known as cloture. Cloture ends debate upon the vote
of a sufficient number of senators. Today, three-fifths (or 60
percent) of the Senate is required for cloture. This enables 41
members of the 100-member Senate to maintain a filibuster.
In 1968, the filibuster was used for the first time against a
Supreme Court nominee. In recent years, actual or threatened
filibusters of nominees to the federal judiciary have become
more common. Threats by the current Democratic minority
in the Senate to filibuster some of President Bush’s judicial
nominees have in turn led to threats by the Republican majority
to change the Senate’s rules, eliminating the use of filibuster in
judicial nominations. Filibusters have historically been used by
both parties when they were in the minority, and a key group
of senators from both parties have thus far expressed their
reluctance to abolish the filibuster.
DIALOGUE ON THE SEPARATION OF POWERS
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EXECUTIVE PRIVILEGE
“The separate powers were not intended to
operate with absolute independence.”
--Chief Justice Warren Burger,
United States v. Nixon (1974)
The President relies upon the members of his cabinet and other
close advisers to offer candid and honest advice on a host of
policy issues. It has long been understood that the President’s
advisers should not have to worry about how their words might
be interpreted by others when they are called upon to give the
President their opinions and advice. The doctrine of executive
privilege protects the confidentiality of the President’s
discussions with his advisers.
The term executive privilege does not appear in the
Constitution. Instead, it is an implied privilege that the
Supreme Court has recognized as necessary to the workings
of the executive branch in carrying out the powers granted to
it in Article II. But the judiciary has refused to acknowledge
that the President has an absolute privilege to protect the
confidentiality of his conversations with advisers. Instead,
it is a presumptive privilege—one that is presumed to apply
unless another branch or interest asserts an equally or more
compelling reason for why the privilege should not apply.
discovered ties between the burglars and members of the
Republican Nixon administration and eventually implicated
the President himself.
By order of President Nixon’s Attorney General, a special
prosecutor was appointed and was given powers to seek
evidence on the break-in and ties to members of the executive
branch. The special prosecutor asked a federal district court to
issue a subpoena, a legal order that requested the production
of tape-recordings of private meetings between the President
and others in the White House. The President resisted, citing his
executive privilege to keep these meetings confidential.
In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court
issued a landmark ruling that defined the limits on executive
privilege. The Court rejected the President’s arguments that his
privilege was absolute. While recognizing that “the President’s
need for complete candor and objectivity from advisers calls
for great deference from the courts,” the Court also noted
that “the separate powers [established by the Constitution]
were not intended to operate with absolute independence.”
The privilege is strongest when a need to protect military,
diplomatic, or sensitive national security secrets is involved.
It is weakest “when the privilege depends solely on the broad,
undifferentiated claim of public interest in confidentiality.”
Even in the weakest case, the executive branch is entitled to a
presumption of privilege. However, the Court ruled that a weak
presumption can be overcome by a compelling need to access
the privileged information. In this case, it was the need of the
federal judiciary to ensure the fair administration of justice in a
particular criminal case.
Presidents remain free to continue to assert executive privilege
when they think it applies. Recently, for example, President
Bush has asserted the privilege in refusing to disclose records
written by nominees to the Supreme Court who, earlier in their
careers, worked as legal advisers for the executive branch. One
nominee, who was serving as White House counsel at the time
of her nomination, withdrew her nomination. She claimed that
demands by senators for access to records from her service as
White House counsel created an irreconcilable conflict with her
nomination. At the same time, senators argue that the assertion
of executive privilege in these cases interferes with their ability
to be fully informed in the exercise of their power of “advice
and consent” in Supreme Court nominations.
Focus Questions
• The public interest served by the executive privilege is ensuring
The most famous ruling on executive privilege arose from the
Watergate Scandal that ultimately led to the resignation of President
Richard M. Nixon in 1974. The Watergate Scandal began when a
group of men broke into the headquarters of the Democratic Party’s
national committee at the Watergate complex in Washington, D.C.
The burglars, in turned out, were taking photos of Democratic
records and adjusting wire-tapping equipment that had been
installed in an earlier break-in. Investigation of the break-in
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that the President has the benefit of complete and open advice
before making decisions on national policy issues. Why is this an
important public interest? Are there competing public interests
that are not served by the executive privilege? If so, how would
you balance these interests?
• In United States v. Nixon, the Supreme Court indicated that
the executive privilege is strongest when issues of military,
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diplomatic, or sensitive national security issues are involved. Do
you think there are other issues that should be strongly protected
by the privilege? What are they? Are there issues that you think
do not merit strong protection by the privilege? Provide reasons
and examples.
• A judge who is nominated to the Supreme Court typically has
a public record of published opinions that can be evaluated
as part of the Senate’s confirmation hearings. The record of
a lawyer nominated to the Court is usually not as public and
may consist mainly of advice offered to a client. Such advice is
usually protected by a lawyer-client privilege. The lawyer-client
privilege is similar to the executive privilege in that in protects a
client’s interest in open and honest advice from a lawyer. Should
this privilege be less important if a Supreme Court’s nominee
was a lawyer who worked for the government—that is, if the
government was the lawyer’s “client”? Why or why not?
WA R P O W E R S
“Only Congress itself can prevent power from
slipping through its ngers.”
—Justice Robert Jackson, Youngstown Sheet & Tube
Co. v. Sawyer (1952)
Article I, Section 8, of the Constitution gives Congress many
powers relating to war and the military. In addition to the
power to declare war, the Constitution also gives Congress the
power to create, maintain, and make rules governing the armed
forces. More generally, Article I, Section 8 gives Congress power
over the federal government’s budget, including expenditures
to “provide for the common defense . . . of the United States.”
The Constitution also gives the President certain, and largely
unspecified, powers as “commander in chief of the Army and
Navy of the United States.” It is generally agreed that the
President’s powers as commander in chief include the power
to use military forces to repel an attempted invasion of U.S.
territory or to authorize other uses of military forces to protect
U.S. interests in instances where an immediate, and limited,
response is required.
Since the end of World War II, the United States has assumed a
leading role in world affairs. It has engaged in military actions
in the Middle East, Central Europe, Africa, Asia, Latin America,
and the Caribbean. Most of these actions have involved
commitment of military forces by the President without prior
authorization by Congress. Concerns over expansion of the
executive’s war powers since World War II have resulted in
several major conflicts among the branches.
DIALOGUE ON THE SEPARATION OF POWERS
T h e Yo u n g s t o w n D e c i s i o n
In 1950, President Harry Truman had convinced the United
Nations to authorize use of a multinational force, led by the
United States, to fight an invasion of South Korea by North
Korean troops. This was the first major military engagement of
the Cold War. President Truman described U.S. involvement as
a “police operation” carried out under United Nations auspices.
He did not seek a declaration of war from Congress.
In 1952, the nation’s steel mills were threatened by a strike,
which would have shut down production of steel necessary for
military efforts in Korea. President Truman ordered seizure of
the steel mills to prevent the strike, citing his powers as chief
executive and commander in chief.
In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952),
the Supreme Court ruled that the President’s seizure of the
mills violated the constitutional limits on his power. The
Court’s opinion noted that, even though “theater of war”
was an expanding concept in the modern world, it could not
encompass the executive’s seizure of private property within
the United States to keep a labor dispute from stopping
production of a material needed for a military effort abroad.
“This is a job for the Nation’s lawmakers,” the Court declared,
“not for its military authorities.”
In a concurring opinion, Justice Jackson noted that the
Constitution vests war powers in the hands of the Congress and
the President. (A concurring opinion is written by a justice who
agrees with the Court’s decision.) “The Supreme Court,” Justice
Jackson wrote, “may say that power to legislate for emergencies
belongs in the hands of Congress, but only Congress itself can
prevent power from slipping through its fingers.”
T h e Wa r P o w e r s R e s o l u t i o n
of 1973
In 1973, Congress moved to reassert its war powers by passing
the War Powers Resolution. The United States was at the end
of its engagement in the Vietnam War, another military conflict
in which Congress had made no formal declaration of war.
President Nixon vetoed the War Powers Resolution, but his veto
was overridden by Congress and was passed into law.
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The War Powers Resolution has a few key provisions:
• Section 3 requires the President “in every possible instance” to
consult with Congress before he commits U.S. forces to hostilities
abroad or to situations where hostilities are clearly imminent.
• Section 4 requires that, absent a declaration of war, the
President is to report to Congress within 48 hours when U.S.
forces have been engaged in hostilities.
• Section 5 requires the President to terminate engagement
of forces within 60 days after a report is (or is required to be)
submitted to Congress.
• Section 5 also provides that Congress can direct the President
to remove forces by a resolution of both the House and the
Senate.
Although the War Powers Resolution was meant to strike a
better balance between Congress and the President, it is widely
perceived as a failed effort. First, it implicitly acknowledges
that most military conflicts today are initiated by decision of
the President, not by the Congress’s declaration of war. Second,
the executive branch has consistently maintained that the
resolution is an unconstitutional infringement on executive
powers. Presidents have reported on many military conflicts
to Congress since the resolution passed, but only once has
a president specifically cited the reporting requirements in
Section 4. And in that case, the military engagement reported
on had already ended. Third, current U.S. military capabilities
often enable the military to initiate and complete a military
engagement well within the 60 day window permitted by
Section 5 of the resolution.
The Supreme Court has never ruled on the constitutionality
of the War Powers Resolution. Although individual members
of Congress have tried to enforce the resolution in the lower
federal courts, the courts have been reluctant to intervene in
what they see as a political issue to be worked out between the
Congress and the executive branch.
P re s i d e n t i a l Wa r P o w e r s a n d
Enemy Combatants
Current executive actions in the “war on terror” have raised
new concerns over the President’s war powers. Since the
terrorist attacks of September 11, 2001, the Congress has passed
two Authorizations for Use of Military Force (AUMFs). The
first, which became law on September 18, 2001, authorized the
President “to use all necessary and appropriate force against
those nations, organizations, or persons” who were involved
in the September 11 attacks. This AUMF covered the conflict in
Afghanistan between U.S. forces and their Afghan allies, on one
side, and the Taliban and members of al Qaeda, on the other.
The second AUMF, passed in October 2002, authorized the use
of force in Iraq.
The AUMFs passed by Congress leave little question as to
the President’s authority to fight the conflicts in Afghanistan
and Iraq. Instead, current war power concerns have focused
largely on the status of enemy combatants who were captured
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in these conflicts, especially Afghanistan, and transferred to a
U.S. military detention facility at Guantanamo Bay, Cuba. Many
of these individuals have been held for several years without
being charged with a crime. Others are scheduled to be tried
by a military commission that was established by an executive
order of the President.
In 2004, the Supreme Court decided two cases involving
Guatanamo detainees challenging their status as enemy
combatants. In Hamdi v. Rumsfeld, 542 U.S. 507, the court
held that detentions of enemy combatants were within the
President’s powers as authorized by the 2001 AUMF. It also
held, however, that a citizen who had been classified as an
enemy combatant had to be informed of the factual basis for his
classification and be given an opportunity to rebut those facts
before a neutral decision maker. “We have long since made
clear that a state of war is not a blank check for the President
when it comes to the rights of the Nation’s citizens,” Justice
O’Connor wrote in her opinion for the Court. In the second
case, Rasul v. Bush, 542 U.S. 466, the Court also held that the
federal courts have jurisdiction to consider challenges to the
legality of the detention of foreign nationals captured abroad
who are being held on territory under U.S. control (including
Guantanamo Bay).
Debate over the fate of enemy combatants continues to
unfold and involves all three branches. The Supreme Court is
scheduled to hear a case that questions the President’s power
to establish military commissions to try enemy combatants.
This case involves both the extent of the powers granted by
the AUMF Congress passed in 2001 and the issue of whether an
international treaty on the treatment of prisoners of war (the
Geneva Convention) would be violated if enemy combatants are
tried by military commissions. Meanwhile, Congress has passed
a new law, the Detainee Treatment Act of 2005, which strictly
limits the jurisdiction of the courts to hear an action relating
to “any aspect of the detention” of an individual detained at
Guantanamo Bay.
Focus Questions
• Why do you think the framers of the Constitution placed the
power to declare war in the hands of the Congress? Why is it
important that the executive branch have separate war powers?
• Congress ultimately controls the money that supports the army
and pays for U.S. involvement in military conflicts abroad. Is this
a sufficient check on the executive’s ability to engage forces in
conflicts without the authorization of Congress? Why or why not?
• Detention of enemy combatants until the end of hostilities has
been a common practice in past military conflicts. The war on
terror is unique, however, in that it involves non-state actors—
individuals and organizations such as al Qaeda. In a more
traditional conflict between two nations, hostilities cease when
one side surrenders or the two nations formally agree to end the
conflict. How will we know when hostilities have ended in the war
on terror? Should the unique qualities of this conflict affect our
treatment of detained enemy combatants? Why or why not?
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