1. Lecture 16 Separation of Powers
Part 2: Foreign Affairs:
Civil War to World War II

2. This Lecture We move to Foreign Affair Powers
Today, we cover up to the end of the WWII
Pages

3. War Powers Which branch has dominance over war powers?
The President is commander in chief
The Founders did not intend for a standing peacetime army
But only the Congress can declare war
Only done five times
Today, general use of AUMF
But once the war starts, presidential power is greater
But he still needs money from Congress to fight the war
War Powers Act of 1973
Sometimes the Supreme Court has to step in when branches vie for power

4. The Prize Cases (1863) The Prize Cases (1863) Background
The Civil War starts as a result of secession of southern states
Lincoln unilaterally orders a naval blockade of the South in April
Congress does not declare hostilities until July and authorize the blockade until August
In July, union naval forces seize four ships doing business with the Confederacy
The owners bring suit to recover their losses saying Lincoln lacked the authority to authorize the blockade without a declaration of war
Question: Did President Lincoln act within his constitutional authority under Article II in authorizing the blockade absent a congressional declaration?

5. The Prize Cases- II Arguments For the shippers
To have a blockade, there needed to be a declaration of war
The President may only utilize military power when authorized by the Constitution
This was an insurrection, not a war
For the United States (President Lincoln)
War is not just a legislative act
Civil war exists when the regular course of justice is interrupted by revolt or rebellion
The President must act quickly in times of war- sometimes Congress may not be in session

6. The Prize Cases- III Justice Grier writes for a 5-4 Court
The Congress may not declare war against any state or states
This is not a war, but an insurrection by the South
They are not enemies, but traitors
The President was "bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.”
The character of the belligerents is decided by the President alone
Nelson, joined by Taney, Catron and Clifford dissent
Congress alone has the power to declare war
This was necessary to authorize the blockade
The Civil War did not exist until it was recognized by Congress in July

7. Ex parte Milligan (1866) Ex parte Milligan (1866) Background
Southern sympathizers in Union territory was a problem for Lincoln
Civilians accused of engaging in traitorous activity were subject to arrest by military commanders and prosecution in military tribunals
But they had no authority in areas without hostility
Habeas corpus- Article I, Section 9
Found in Article I, not Article II
Civilian courts are in full operation in the areas
Lincoln suspended habeas corpus and instituted military commissions in civilian areas
Congress endorsed some of them

8. Ex parte Milligan- II More background in Milligan
Milligan was a southern sympathizer and Democrat from Huntington County, Indiana and gave speeches in favor of the south
But not in southern Indiana. Birthplace of Dan Quayle
Southern Indiana was the hotbed of southern sympathizers and this held in politics
He and others were suspected of a plot to free Confederate POWs who would then take control of Indiana, Illinois, and Ohio
He and others were found guilty by a military tribunal in Indianapolis and were ordered to be executed by hanging
His attorneys filed for a write of habeas corpus on the ground that they should have never been tried by military tribunal
Justice Davis was the circuit justice for Indiana- he passed the issue to the Supreme Court

9. Ex parte Milligan- III Question: Arguments
Did a military Court have jurisdiction over a civilian?
Did the President have the power to suspend habeas corpus in a time of war?
Could Congress authorize this?
Arguments
For Milligan
Only Congress can suspend the writ of habeas corpus since it is only in Article I
Framers wrote the Constitution with mistrust of too much executive power
Indiana was a peaceful state- not in rebellion
The Fifth Amendment applies in times of war and peace

10. Ex parte Milligan- IV Arguments for the United States
The President has authority to suspend the writ of habeas corpus from his power as Commander in Chief
The limits in war time are really on Congress- declare and pay for the military
Once it starts, the President’s powers are unlimited
Jurisdiction of the tribunal does not depend on what state it is in
The question is whether there is a threat
The 2nd, 4th, 5th and 6th Amendments were made for peacetime, not war time
Note that this case was decided after the Civil War had ended
Would it have been different if decided during the war?

11. Ex parte Milligan- V Justice Davis writes for a unanimous Court
The courts in Indiana were open and functioning- there was no need here
The President did not have authority alone to authorize these tribunals
Congress can authorize them, but only in areas that were actually in rebellion, not potentially in rebellion
A key point here is whether the courts were open or closed in an area
This meant that this ruling did not apply to the South
Chief Justice Chase and three others concur
But they say that Congress did have the power to authorize military tribunals in Indiana
If in a time of war
After being released, Milligan sued and won $5

12. World War II- The Nazi Saboteurs
Ex parte Quirin (1942)
The Nazi saboteur case
They were captured in 1942, not 1941
Two of them turned themselves in and ratted out the others
They were going to be involved in industrial sabotage
President Roosevelt issued an executive order to prosecute these Germans in a military tribunal
The Court ruled in favor of FDR
They were unlawful combatants- not subject to POW protections or any rights
6 of the 8 were executed- the two that testified against the others were sent to West Germany in 1948
Note this case was decided during the war

13. Korematsu v. United States (1944)
Background
World War II starts with the Japanese bombing of Pearl Harbor
People feared a Japanese invasion of the West Coast
Many were fearful that those of Japanese ancestry would help them with the invasion
So FDR issues Executive Order 9066
Curfew and future relocation from the exclusion area
The Congress ratifies this
Then comes Executive Order 34 by the military commander of the area, which authorized relocation to internment camps

14. Korematsu v. United States- II
More background
It only looked at ancestry, not loyalty
They assumed that because of their ancestry, they could not be trusted
This did not apply in Hawaii- they did look at loyalty
FDR was under pressure from West Coast politicians, including California Attorney General Earl Warren to do this
The public strongly favored this policy at the time
Some was blatant racism
Hirabayashi v. United States (1943)
Court upholds the constitutionality of the curfews as a part of the President’s war powers, even if it used racial classifications

15. Korematsu v. United States- III
A bit of information on Fred Korematsu
He had tried to join the military, but could not for health reasons
He worked as a civilian welder near San Francisco
He was native born- his parents had immigrated from Japan
He tried to disguise his Japanese ancestry by plastic surgery
He was arrested for violating the relocation orders
After the war
His charges were overturned in 1984
Living persons interned in 1988 were awarded $20,000 each by Congress

16. Korematsu v. United States- II
Question: Did the President and Congress go beyond their war powers?
Arguments
For Korematsu
The orders are an unconstitutional deprivation of due process rights of work, home, and movement
This violates equal protection because it is based on racial classifications
His right to trial under the 6th Amendment are violated- he had no trial
For the United States and FDR
This is a valid exercise of war powers
We can suspect those of Japanese ancestry to be potential allies of Japan
It would take too long to distinguish between loyal and non-loyal

17. Korematsu v. United States- II
Justice Black rules for the 6-3
Racial classifications restricting a single racial group’s rights are immediately suspect, but not all are unconstitutional
Necessity can justify these, but never racial animus
This had a relationship in preventing sabotage in the West Coast
This was deemed necessary because many Japanese Americans could be disloyal, even though most were loyal
Some refused loyalty oaths
Black refuses to call these concentration camps
War dictates extreme measures- urgency to protect the West Coast
“emergency and peril”

18. Korematsu v. United States- III
Justice Frankfurter concurred
He argued for judicial restraint
He also found no language in the Constitution to prohibit such an order
Justice Murphy dissented
“Falls into the ugly abyss of racism”
Public danger must be “immediate, imminent and impending”
It is difficult to reason that all of Japanese ancestry would be involved in sabotage activities
The Final Report includes racism rather than military necessity
The FBI and military intelligence had the situation under control
Why include the elderly and women and children?

19. Korematsu v. United States- IV
Justice Jackson dissented as well
Korematsu is American born, law abiding and loyal
He was merely convicted of being present in California, where he is a citizen and lived his entire life
After he turned himself over, he was forbidden to leave
His only crime was being of Japanese ancestry
War time is different from peacetime
The DeWitt testimony and report are dubious
The Court cannot merely approve of any military order during war time
"a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority.”

20. Korematsu v. United States- IV
Justice Roberts also had a dissent
Not printed here
Ex parte Endo (1944)
The government could not continue legally to detain those in camps who were in fact loyal to the country
In January, 1945, the relocation order was rescinded
Several younger detainees had been sent east
All but one camp had closed by the end of 1945
Manzanar is not a part of the National Park Service

21. Next lecture We will cover material regarding The Korean War
Middle East policy
Pages
After that, the last lecture will finish with material on the War on Terror