III.B National Power and Separation of Powers

Prize Cases (1863): author and vote

Grier, 5-4 (Nelson dissent with Taney, Catron, Clifford)

Prize Cases (1863): facts

Lincoln proclaims a blockade of Southern ports in April 1861 without Congress • Congress recognizes hostilities July 13 and ratifies the blockade August 6 • four ships seized before July 13 • owners sue

Prize Cases (1863): constitutional question

Could the President impose a blockade and seize prizes before Congress declared war?

Prize Cases (1863): holding

Yes. Affirmed.

Prize Cases (1863): reasoning

War can exist de facto without a declaration • "a civil war is never solemnly declared" • Congress can't declare war on a state • President "bound to resist force by force… without waiting for any special legislative authority" • "bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name" • whether it's a war "is a question to be decided by him"; courts follow the political department

Prize Cases (1863): dissent

Nelson: no war until July 13 • only Congress creates a state of war • captures void

Prize Cases (1863): interpretive tools [inferred]

Pragmatic / necessity (facts on the ground make a war) • Deference to the political department • Textual reading of the declare-war power as inapplicable to a civil war

Prize Cases (1863): significance / exam connection

Foundation of presidential war power without a declaration • deference during war (contrast Milligan after the war). Expansive NATIONAL executive power; pairs with Neagle and Curtiss-Wright on inherent power

Which case? "without waiting for Congress to baptize it with a name"

Prize Cases (1863), Grier

Which case? Ships seized under Lincoln's blockade before Congress acted

Prize Cases (1863)

Ex parte Milligan (1866): author and vote

Davis; 9-0 on the result, 5-4 on reasoning (Chase concurs with Wayne, Swayne, Miller)

Ex parte Milligan (1866): facts

Indiana Copperhead lawyer Milligan arrested by the military October 1864, tried by military commission, sentenced to hang • Indiana courts open throughout • Johnson approves the sentence after the war • habeas sought

Ex parte Milligan (1866): constitutional question

Can a military commission try a civilian in a loyal state where the courts are open?

Ex parte Milligan (1866): holding

No. Habeas granted.

Ex parte Milligan (1866): reasoning

"The Constitution… is a law for rulers and people, equally in war and in peace" • no doctrine "more pernicious" than that provisions can be suspended in emergencies • the commission is not a court created by Congress and the President can't create one • laws of war "can never be applied to citizens in states… where the courts are open" • jury trial "cannot be frittered away on any plea of state or political necessity" • martial law only where invasion "effectually closes the courts"

Ex parte Milligan (1866): concurrence

Chase (with Wayne, Swayne, Miller): Congress COULD authorize such commissions under the war powers; it just didn't. (Statutory limit, not constitutional)

Ex parte Milligan (1866): interpretive tools [inferred]

Textual (jury trial guarantees) • Absolutist / rule-of-law principle (Constitution applies equally in war and peace) • Structural (only Congress creates courts)

Ex parte Milligan (1866): significance / exam connection

Strongest wartime civil-liberties statement • Davis vs. Chase on whether the limit is constitutional or statutory (Hamdi) • decided only after the war ended • provokes McCardle. Contrast Prize Cases (deference during war) and Schenck (wartime speech limits)

Which case? "a law for rulers and people, equally in war and in peace"

Ex parte Milligan (1866), Davis

Which case? Copperhead lawyer tried by military commission in Indiana where the courts were open

Ex parte Milligan (1866)

In re Neagle (1890): author and vote

Miller, 6-2 (Lamar, Fuller dissent; Field not participating)

In re Neagle (1890): facts

Terry threatens to kill Justice Field • Attorney General assigns Marshal Neagle as bodyguard • Terry attacks Field at Lathrop station • Neagle shoots Terry • California charges murder • federal court grants habeas as an act "in pursuance of a law of the United States" • no statute authorized a bodyguard

In re Neagle (1890): constitutional question

Can the President, without a statute, authorize protection of a federal judge, making it a "law of the United States"?

In re Neagle (1890): holding

Yes. Affirmed.

In re Neagle (1890): reasoning

Field was performing judicial duty while traveling • "any obligation fairly and properly inferrible from" the Constitution "is 'a law'" • the judiciary is "the weakest for the purposes of self-protection" • the Take Care Clause includes "the rights, duties and obligations growing out of the Constitution itself… and all the protection implied by the nature of the government" • Neagle justified and immune from state prosecution

In re Neagle (1890): dissent

Lamar, Fuller: "law" means an act of Congress • murder is for California courts

In re Neagle (1890): interpretive tools [inferred]

Structural / implied power (protection "implied by the nature of the government") • Broad reading of the Take Care Clause beyond statutes

In re Neagle (1890): significance / exam connection

Implied executive power under the Take Care Clause • federal officers immune from state prosecution for authorized acts • feeds the inherent-power line (Debs, Youngstown). NATIONALIST executive power; the dissent's "law = act of Congress" is the narrow view

Which case? Marshal shoots a man attacking a Supreme Court justice; "the weakest for the purposes of self-protection"

In re Neagle (1890), Miller

United States v. Kagama (1886): author and vote

Miller, unanimous

United States v. Kagama (1886): facts

Two Indians indicted for murdering another Indian on the Hoopa Valley Reservation, California, under the Major Crimes Act (1885), passed after Crow Dog found no federal jurisdiction over Indian-on-Indian crime

United States v. Kagama (1886): constitutional question

Does Congress have power to punish crimes between Indians on a reservation inside a state?

United States v. Kagama (1886): holding

Yes. Statute valid; federal jurisdiction.

United States v. Kagama (1886): reasoning

Constitution "almost silent" on Indians • the Indian Commerce Clause is a "very strained" basis for a criminal code • power comes from national sovereignty over the territory and guardianship: "These Indian tribes are the wards of the nation… From their very weakness and helplessness… there arises the duty of protection, and with it the power" • states have no power over tribal Indians (Worcester) • power "must exist in that government, because it never has existed anywhere else"

United States v. Kagama (1886): interpretive tools [inferred]

Structural / sovereignty (power inherent in the nation, not enumerated) • Rejects the textual route (commerce clause "very strained") • Guardianship rationale

United States v. Kagama (1886): significance / exam connection

Plenary federal power over Indian affairs outside the enumerated powers • pairs with Curtiss-Wright as an inherent-sovereignty case • Major Crimes Act still law. NATIONALIST: federal power beyond the enumerated list

Which case? "wards of the nation… From their very weakness and helplessness… there arises the duty of protection, and with it the power"

United States v. Kagama (1886), Miller

United States v. Curtiss-Wright Export Corp. (1936): author and vote

Sutherland, 7-1 (McReynolds dissent, no opinion)

United States v. Curtiss-Wright (1936): facts

Congress by joint resolution lets the President embargo arms to Bolivia and Paraguay (Chaco War) if it may help peace • FDR proclaims the embargo • Curtiss-Wright sells bombers disguised as passenger planes • indicted • claims unconstitutional delegation (Panama Refining)

United States v. Curtiss-Wright (1936): constitutional question

Is broad delegation to the President valid in foreign affairs? Where does the foreign-affairs power come from?

United States v. Curtiss-Wright (1936): holding

Yes; the power is inherent in national sovereignty, not the enumerated powers. Reversed (prosecution reinstated).

United States v. Curtiss-Wright (1936): reasoning

Internal and external powers differ "in respect of their origin and their nature" • the enumerated-powers rule is "categorically true only in respect of our internal affairs" • states never had international powers, so they passed from the Crown to the Union • war, peace, treaty powers "would have vested in the Federal government as necessary concomitants of nationality" even if unmentioned • 150 years of practice • the President needs broad discretion abroad

United States v. Curtiss-Wright (1936): interpretive tools [inferred]

Historical / sovereignty theory (powers passed from the Crown to the Union) • Practice (150 years) • Structural (external vs. internal powers)

United States v. Curtiss-Wright (1936): significance / exam connection

Inherent powers doctrine • foreign/domestic dichotomy for delegation • "sole organ" basis for presidential foreign policy • history criticized. Same year as Carter Coal: the Court limits federal power at home (Carter) while finding unlimited inherent power abroad (Curtiss-Wright)

Which case? "necessary concomitants of nationality"; powers passed from the Crown to the Union

United States v. Curtiss-Wright (1936), Sutherland

III.B inherent-power line: Prize → Neagle → Kagama → Curtiss-Wright

Prize (1863): President may meet war "in the shape it presented itself." Neagle (1890): Take Care Clause includes duties implied by the nature of the government. Kagama (1886): power over tribes "must exist in that government, because it never has existed anywhere else." Curtiss-Wright (1936): foreign-affairs power inherent in sovereignty, outside the enumerated powers. All find NATIONAL power beyond the text

III.B: Prize Cases vs. Milligan

Prize (1863, during the war): deference to the President; whether there is a war "is a question to be decided by him." Milligan (1866, after the war): the Constitution "is a law for rulers and people, equally in war and in peace"; no military trials of civilians where courts are open. Timing shaped the outcome