Thursday, August 20, 2015

The Power of the Executive vs. the Reason of the Courts

Justice Jackson (Oyez Project)
In response to my post on Justice Jackson's dissent in Korematsu, John Barrett, professor of constitutional law at St. John's University, forwarded me his excellent law review article A Commander's Power, a Civilian's Reasons: Justice Jackson's Korematsu Dissent, published in Law and Contemporary Problems, Vol. 68 (2005).  

Professor Barrett is currently writing a biography of Justice Jackson, seemingly a truly remarkable man. Barrett is a clear and engaging writer. I look forward to his book. 

In the meantime, professor Barrett has helped further clarify my thinking on Justice Jackson and Korematsu.  Specifically the framing of the issue as a struggle between Power and Reason. 

We live in a state with a lot of power: the most powerful army the world has ever seen, powerful and sophisticated police forces, and powerful and developed intelligence services. As a constitutional democracy we subordinate a lot of this power to the rule of law--to reason. 

Presidents, the military, and the police wield power. Although their power is usually moderated and restrained by laws, regulations, and tradition, in the final analysis Power can trump Reason. It can trump the rule of law. If push comes to shove, Presidents and military commanders can ignore the courts...and there is nothing the courts can do about it.

Sometimes Presidents explain the reasons behind their actions, but their explanations tend to be more political than reasoned.  Military and police forces are not accustomed to provide either reasons or explanations for their actions. 

Judges provide extensive reasons for their decisions. Judicial decisions have force only to the extent they are accepted, and they are accepted only by dint of their persuasiveness in developing reasons why we should follow them. This force of Reason is backed up by tradition, by statutes, and by a constitution... but above all by our acceptance, and by the state's willing subordination of its power to Reason. 

Professor Barrett in his article directs us to a speech Justice Jackson delivered late in life at the University of Buffalo (he died prematurely at 62 years of age). There he framed the issue he was dealing with in Korematsu as follows: 

"The issue as we get it (in cases like Korematsu) is more nearly this: Measures violative of constitutional rights are claimed to be necessary to security, in the judgment of officials who are best in a position to know, but the necessity is not provable by ordinary evidence and the court is in no position to determine the necessity for itself. What does it do then?"  

In his Buffalo speech Justice Jackson distinguishes the three approaches taken in Korematsu as follows: 1) bending the constitution to accommodate the military action in light of the emergency (Black’s opinion); 2) refusing to yield to military necessity and calling the action a clear constitutional violation, letting the chips fall where they may (Roberts and Murphy); and 3) setting Korematsu free “under judicial commitment" (because the order was unconstitutional) but the court should not interfere if the military “attempted to enforce the measure” (Jackson's dissent).   

I’m not sure what Jackson meant by “judicial commitment” in his Buffalo speech. In the opinion he said “set free.”  Is he hedging in Buffalo?  As professor Barrett explains in his article, Jackson was concerned about (cognizant of) the fact that the judiciary is ultimately at the mercy of the executive and military for following the order. I understood Justice Jackson to mean the court should not grant an injunction in the opinion.  In Buffalo he explained that what he had in mind was akin to suspending the writ of habeas corpus.  That suggests he is saying “call it as you see it” like Roberts and Murphy, but know that the military may not go along, and be ready to accept the military’s power over the court’s Reason when that happens.  

Justice Jackson's important insight, that the military will (and must) do unconstitutional things in time of war to protect the country, was lost on the majority.  It seems to me this insight by Jackson is (a) correct, and (b) really valuable for thinking about the issues.  I think Jackson is also correct that the need to call a reasonable military action “constitutional” (by definition) is really dangerous. 

Professor Barrett states in his article that Jackson "all but urged courts to treat as non-justiciable any citizen’s claim that a war-time military action was unconstitutional” (at p. 61). He cites to prof. Gudridge as sharing that view.  I disagree with them. As professor Barrett points out elsewhere in the article, Jackson was deeply empathetic with Korematsu as an individual.  He would have set him free, even recognizing that the executive and military might not obey. I don’t think he would want to bar the courthouse door to him. 

In case of Korematsu, decided in ’45, the practical situation (Japanese fully on defensive, war nearing its end) was such that it was unlikely the military would not honor a ruling by the court that the exclusion order of Japanese from the West Coast was unconstitutional. There was no reason, therefore, to declare this case non-justiciable in 1944. Cf the companion case, Endo, wherein the court essentially put a halt to internment, but on non-constitutional grounds.  

The imbalance between Power (the will of the military) and Reason (the constitutional judgment of the court) would have been more pronounced in 1942, in the immediate wake of the Pearl Harbor attack.  What should a trial court have done faced with a challenge to the military exclusion order in the summer of ’42?  That’s a tough case, and at the heart of the issue because the military power might trump constitutional reason at that point--i.e. there is risk the military would have ignored the order.   

What should a trial court have done if confronted with extra-judicial actions by the military or intelligence services in the “war on terror” in late 2001  2011?  In 2015?  In the conflict between Reason and Power, Reason is stronger in 2015 whereas Power may have been ascendant in 2011.  Jackson’s opinion, in essence, says this fluctuation in the power-struggle between Reason and Power should not affect the constitutional analysis—which must always be based on reason.

I think Jackson was right that Korematsu raises issues that go to the heart of the ultimate power centers in a constitutional democracy and that this presents a struggle between Reason and Power. Jackson did not have a neat answer to resolve this conflict in Korematsu because there is no neat answer.  It’s just a condition of constitutional democracy.  

One place where this Jacksonian Power vs. Reason formulation might be helpful is in thinking about John Yoo's and Jay Bybee's roles in creating the torture memo’s.  Professor Barrett indicates how Jackson, as attorney  general in the late 1930's, was helping to spy on civilians that might be a threat in the future, and how he helped devise ways to subvert the will of Congress on going off the gold standard. He obviously did not do this because he was a "bad man." In these examples, Jackson was acting in the service of the Power of the executive—and perhaps contrary to the Reason of law. Similarly, Yoo and Bybee, in crafting the torture memos that gave cover to the CIA to proceed with enhanced interrogation, acted reasonably (if unconstitutionally) in the service of Power: they were helping the military “do the dirty work that needs to be done to protect the country” in a time of crisis.  Applying Justice Jackson’s pragmatism in distinguishing the Reason of the law from the Power of the executive in war, courts might clearly declare that, e.g., “enhanced interrogation” is unconstitutional—as the cases present themselves—but refuse to hear a criminal action from ambitious prosecutors, or civil litigants,  against the likes of Yoo or Bybee for their (reasonable?) actions undertaken in the service of military power in a time of war/national emergency.  As Justice Jackson knew well from his experience as prosecutor at Nuremberg, however, there is a point where Power so oversteps its bounds that the correct response is a war crimes trial.  Locating that line in a given case is why judges get paid the big bucks (20% in cash and 80% in prestige). 

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