Dean's World

You've heard about the Supreme Court's ruling by now:

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a strong rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

This stuff — war powers, the Geneva Convention — is not my speciality, but I was involved in one short exchange on one of my alumni email lists:

On Jun 29, 2006, at 10:37 AM, [my friend] wrote:

The only thing I found kind of odd was a quote [from] Justice Thomas who, during reading of his opinion, said the decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy".

Whether that's true or not, how is it relevant? If the law is a violation of the constitution, what does it matter if it helps or hampers the president?

I replied,

I think we may be missing something. The Constitution and SCOTUS recognize that the President is the Commander in Chief and has very broad powers to make war and defend the country. The question here is whether his war powers are broad enough to encompass these tribunals, and they answered no. But certainly whether the President is helped or hampered in his execution of those powers, how much he is or is not, and what other competing interests there must be, are part of that discussion.

Well, that's the depth I can get you to, as the official legal talent among the contributors here. In fact, there's much more going on here. I recommend clicking here to get into the vein of what people on the center-to-right-of-center blogs are saying about this decision.

UPDATE: Great coverage from a player, Walter Dellinger, at Slate. He explains:

For the proposition that the president has the authority to decline to abide by statutes he views as unconstitutional, the administration has relied principally on an opinion I authored as head of the Office of Legal Counsel in 1994. And rightly so. That opinion is based upon long-standing and consistent executive practice. Moreover, the most relevant U.S. Supreme Court decision, Myers v. United States, 272 US 52 (1926), by clear implication considers it appropriate for a president to decline to execute unconstitutional statutes. And as President Carter's Attorney General Ben Civiletti wrote in an 1980 opinion, the president's constitutional duty to execute the laws "does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts."

This view is based upon the principle that the president's ultimate obligation is to the Constitution, and if a statute contravenes the Constitution, the president has the authority to decline to enforce it. This applies to laws that unconstitutionally impinge upon the president's own power. It is also unremarkable for a president to announce his view that a provision is unconstitutional in a statement issued when he signs the law.

. . .

This administration has taken the astounding position that if the president has "inherent authority" to do and act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his "inherent power." This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

The court made short work of it today. RIP "inherent presidential authority" to violate valid laws. Justice Kennedy makes this point more simply than I have. After noting that the military commission order "exceeds limits that certain statutes have placed on the President's authority to convene military courts," he asserts: This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government … has set limits on the President's authority.

This seemingly simply proposition has huge consequences.