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Student Brief: The Palmer Prize for Civil Liberties: Presidential Constitutionalism in Perilous Times

By student blogger Orijit Ghoshal

(Listen to the webcast of Professor Matheson’s talk here.)

The Palmer Prize for Civil Liberties was awarded to Professor Scott M. Matheson, Jr. on Friday, November, 20th for his book, Presidential Constitutionalism in Perilous Times. Established three years ago by Roy and Susan Palmer, the Palmer Prize is awarded to scholars who examine current issues affecting individual rights in tension with governmental responsibilities. Dean Krent awarded the prize and introduced Matheson in his current role as Professor of Law at the University Of Utah College Of Law, as former Dean of the same school, and former US Attorney for the District of Utah.

Matheson began by explaining the factual background which motivated him to write his book. Although the US Constitution contemplates the separation and sharing of powers such that most federal action implicates at least two branches of government, President George W. Bush acted alone in his executive power during the post-9/11 world. Without much concern towards individual liberties, Bush proceeded in his War on Terror without seeking congressional approval for many actions (e.g. Military commissions established in 2001, secret electronic surveillance outside the Foreign Intelligence Surveillance Act) and without the check of the judiciary to review his decisions (detention of enemy combatants without charge outside the Geneva Convention). Thus, Matheson was motivated to examine how the executive branch addresses liberty during war. This examination began with analysis of the Constitution, proceeded to review past presidents and culminated in analysis of the Bush Administration.

Part I of the book notes that the office of the presidency was a new position for the Framers to invent. According to Matheson, the Framers’ desired an executive that held single executory power in addition to serving as a civilian commander in chief. The Constitution was an instrument requiring the executive branch to share decision with Congress when possible, subject to judicial review and to internal checks within the branch.

Part II of the book analyzes four past wartime presidents’ actions with respect to individual liberties. In Matheson’s estimation, President Lincoln faced the largest threat to the Union and thus summoned the militia, increased the Navy’s ranks, spent unappropriated funds, and most importantly suspended the writ of habeas corpus during the Civil War. Although Lincoln lacked prior congressional authorization, due to popular demand and public necessity these actions were authorized by Congress after the fact. However, the executive branch did disregard judicial rulings, justifying their actions through the idea of adequacy constitutionalism derived from the loose extent of the federal government’s powers in Articles I and II of the Constitution.

As the only President with a Ph. D., President Wilson was a proponent of freedom of speech in theory as an academic. In fact, however, Wilson proposed the first legislation since 1798 to punish disloyalty during World War I. Wilson’s Department of Justice prosecuted 2200 individuals under the Espionage Act of 1917, half of whom were convicted and given substantial prison sentences. Congress clearly cooperated with Wilson’s suspension of individual rights, and the courts cooperated by hearing cases under the Act after the War had ended.

President Franklin D. Roosevelt’s internment of Japanese during World War II was the most egregious violation of individual rights by a president during wartime, Matheson argues. Executive Order 9066 mandated the interment of 120,000 Japanese, two-thirds of whom were American citizens. Due to his war department’s poor assessment of risks, along with racial animus, FDR relied on Secretary of War Stimson’s plan but also received support from Congress and the courts (Korematsu).

To avoid a workers’ strike, President Truman seized steel mills using his ‘inherent executive authority’ during the Korean War. In Youngstown, the Supreme Court disagreed with Truman’s claim of inherent power and considered his actions an incursion on the Taft-Hartley Act of Congress. Both Congress and the Judiciary thus declared that the President was not the exclusive judge of the scope of his power to suspend individual liberties, even during war.

Part III analyzed the Bush Administration’s actions under the Constitution and in the context of prior presidential precedents. The Administration claimed that the Executive could unilaterally override enacted law, and did so by detaining combatants without regard to the Geneva Convention. The Supreme Court drew the line and pushed Bush back to Congress to seek approval for exceeding the Executive authority by denying review of confinement and instead holding military commissions in a series of decisions from 2004 – 2008. President Bush did obtain approval through the Patriot Act, but only after he deprived combatants of due process rights under his theory of ‘extra-constitutionalism’.

Although Matheson recognized the emergency and battlefield necessity of some detention tactics, his book argues that proper procedures could develop through normal democratic means. Instead, President Bush unilaterally declared his inherent ability as Executive and thus denied the nation the benefit of the most politically accountable branch of federal government. Recognizing that peril asks much of a President, Matheson argues that the rule of law is a false hope if not in the hearts and minds of the men and women entrusted to enforce law.

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