I posted this in the comments below and thought some might miss it. Here's a little war powers hypo:
President Bush orders troops into Mexico to conduct targeted attacks on "centers of drug trafficking." Bush claims illegal drugs present a threat to national security. He reminds the American people that we still haven’t won the war on "drugs." Corporal O'Reilly refuses to go and is charged with desertion. O'Reilly claims the war is illegal. Mexico responds by invading New Mexico. President Bush orders the military to arrest all Mexican Americans in California and Texas and send them to Guantanamo. The ACLU sues on behalf of thousands of Mexican Americans detained without any due process or right to counsel. The parents of a Mexican American detainee also sue. How would the Court handle all of these issues?
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President Bush is not authorized to order troops into Mexico unless he states a reason from the constitution or from approval from congress. The president just took action against centers of drug trafficking without congressional consent, neither explicit or implicit and without congressional approval, the presidential power is at its lowest. The commander in chief role doesn’t give the president power to force troops into Mexico. It is not the authority of the president to seize property. This power can’t be sustained as an exercise of the president’s military power, and the power to adopt public policies regarding drug trafficking and prescribing drug trafficking laws is in the range of Congress’s power. The arrest of all Mexican Americans (not just Mexican Americans who participate in drug trafficking but all of them) is taking place. Unlike Korematsu, the military isn’t arresting Mexican Americans because of a security measure (there is no security measure like a curfew that was enforced or anything like that); they are just indiscriminately arresting them. This indiscriminate arresting just because of race, violates equal protection, due process, and constitutional rights to live, work and travel. Ordinary judicial proceedings MUST be implemented because drugs don’t pose an extreme, immediate danger (since drugs probably exert their effects over time). After all, the danger is drugs, its not grave and extremely urgent like a hostage situation or full on rebellion, invasion, or civil war. The president can’t send all of the Mexican Americans to Guantanomo because they are not enemy combatants, some might just be regular citizens having nothing to do with drug trafficking. They also can’t be tried under military commission, as they are not in the armed forces and may not be “a part of or supporting forces hostile to the US.” You can’t use law of war on citizens when the civilian courts are in operation. Citizens can’t be detained unless they receive some due process, which the Mexican Americans didn’t receive. Since these Mexican Americans are not enemy combatants, they are entitled to constitutional protection of the 6th amendment, which is the right to have “a speedy trial and public trial by jury.”
The president sending troops to Mexico reminds me of US troops invading Iraq. Since it is outside of the United States, and since the president deals with international relations (since he represents the US), is this purely an executive function, and use the power of commander in chief?
I think the question for this hypothetical is easy. The court would have to declare President Bush's actions illegal. First of all it is not within the powers of the President to conduct police actions within another sovereign nation without the approval of that nation. Such actions could be seen as aggressive and an act of war, even though such a war had never been declared by Congress. Therefore any actions President Bush took after approving the actions of United States forces in Mexico would also be deemed illegal.
Can Bush invade Mexico without any authorization from Congress?
*** Unlike the war in Iraq there was no law passed such as the AUMF which could be contstrued to allow the military or police actions in another country without their co-operation. This is apparent in language in the 1970 Constrolled Substances Act, the 1988 Anti-Drug Abuse Act and the international treaty known as the Single Convention on Narcotic Drugs.
***His actions would be as Jackson states in Youngstown at its weakest as he is acting with neither Congress expressed consent nor their acquiesce and without any Constitutional basis.
Can Corporal O’Reilly be charged and punished for Desertion because he refused to go because the war is illegal?
***Based on the Watada case there is no clear judgment at this time. Watada is the first officer to publicly refuse to go t the Iraq war because it was illegal and going would make him a party to war crimes. His first court martial trial in Feb. 2007 ended in mistrial and his new trial is slated for July 2007. Like, O’Reilly he is not a conscientous objector because he is not opposed to all war just this one. So O’Rielly would definitely be tried but the final verdict can’t be predicted based on current cases at this time.
Once Mexico invades New Mexico does that give Bush the right to arrest all Mexican Americans and send them to Guantanamo?
****The U.S. is under invasion and immediate threat from Mexico who just invaded New Mexico. In the Prize Cases it was decided that war did not have to be officially declared should an invasion occur so at this point we are now at war and war powers can go into full effect. Korematsu main opinion would say that he has the right to arrest Mexican Americans if…military fear of grave imminent danger to the public safety can justify both exclusion and a curfew. For the prevention of sabotage and espionage.
****While all legal restrictions curtailing the rights of a single racial group is immediately suspect, not all such restrictions are unconstitutional. They must be subject to rigid scrutiny. Public necessity may sometimes justify the existence of such restrictions. There must be a compelling reason and there must be no other way to perform this function
***So under Korematsu they may be able to claim that they have the right to “exclude” them if not detain them for fear of possible sabotage or espionage.
****Under Milligan any arrested in an area where the courts are still open would have to be tried in federal courts not military courts.
****Under Hamdi they all must be afforded counsel and the right to Habeas which has not been suspended. None of them are being classified as enemy combatants so under Hamdi there can be no holding them during the duration of the conflict without proof of their specific threat to the U.S.
Can the ACLU sue on behalf of thousands of Mexican Americans detained?
****they have no standing unless specifically hired/requested as counsel for the detained.
Can their parents sue?
****If the detained is incapable of suing on their own behalf due to lack of access or even death a relative is able to have standing to plead their case.
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