Saturday, April 19, 2008

Review

Post your quiz review questions here.

30 comments:

Anonymous said...

hey all,
I'm a little fuzzy on the Prize cases and Ex parte Milligan. I understand the significance of both, but what exactly were the precedents they set?

Anonymous said...

I am in the same boat.. what exact cases are covered on quiz 4?

Professor Davis said...

In Prize the Court ruled that only congress may start a war but the President may respond with force to a war that has already started without Congressional authorization. The Court defined war as when a nation prosecutes its rights by force, when fighters take property and declare it their own against another sovereign, when they interrupt the course of justice. In Milligan the Court ruled that the President could not try a US citizen in a military commission. Doing so violated Milligan's 5th and 6th Amendment rights. War was not an excuse for violating these rights. The majority ruled that the Commissions would have been illegal even if Congress authorized them - the dissent disagreed on this point alone. Recall the Court ruled that a country preserved at the expense of its cardinal principles is not worth the cost of preservation.

Professor Davis said...

The quiz will cover Chadha through Hamdan.

Anonymous said...

Who exactly ordered the exclusion of Japanese Americans in the Korematsu case and is that significant? Was it the President and Congress or an order from General DeWitt?

Anonymous said...

How does the Korematsu case fall into the category of Separation of Powers?

Red said...

What is the significance of the Padilla case?

Also, In Hamdi, what is the Mobbs declaration?

Professor Davis said...

The executive branch ordered the exclusion by executive order in Korematsu.

Red said...

Another question, has there been any instance where a military tribunal has been legal? It seems like every time that the issue comes up in court it get struck down.

Professor Davis said...

Korematsu is in the separation of powers section because it deals with war powers - which are divided between the legislative and executive branches.

Professor Davis said...

Padilla is simply significant because he was another US citizen challenging his designation as an enemy combatant and his detention. The Court dismissed his appeal on a technicality. However, after the Hamdi decision the administration was forced to transfer Padilla to the civilian justice system. He was tried and convicted of conspiracy to commit terrorist acts. He is appealing.

Professor Davis said...

Military commissions can be legal under the circumstances outlined in Hamdan - to try enemy forces on a war zone for war crimes or to try your own forces in a war zone for desertion etc. Military courts created by congress under the UCMJ to deal with justice for the military are also legal.

Red said...

Thanks.

Anonymous said...

What was Powell's concurring opinion in Chadha?

Professor Davis said...

Powell agreed the legislative veto was unconstitutional but he argued it was not legislative and therefore it did not require presentment. He argued it was judicial and therefore congress improperly expanded its power. Powell also talked about how dangerous it is for the Court to strike down so many legislative provisions.

Anonymous said...

What was the precedent set by Hamdi and Hamdan, and don't those decisions conflict with earlier rulings on military tribunals and enemy combatants?

Anonymous said...

What cases should we focus on for the hypothetical questions?

Anonymous said...

Dr. Davis, Which dissents and concurring opinions will be relevant for the quiz on Monday? Thanks!

Professor Davis said...

The precedent set by Hamdi was that the government may not detain US citizens as enemy combatants without any due process rights. As Scalia's dissent, and to a lesser degree Souter's concurrence make clear, the decision deviates from precedent that US citizens are entitled to all due process rights (Milligan) even during war. In Hamdan the Court ruled that the president's system of military commissions to try alien enemy combatants violated US and international law.

Professor Davis said...

The hypotheticals may deal with any case we have discussed - from Chadha through Hamdan.

Professor Davis said...

Concentrate on the dissents and concurrences we discussed in class.

Anonymous said...

I'm having trouble understanding C.J. Vinson's dissent in the Youngstown case. Is he saying that the President should have the power to seize the mills if it's for the security of our nation?

Katie said...

Let me see if I understand Milligan: The entire Court ruled 9-0 that the military tribunal was unconstitutional because the president created it. However, 5 of them also held that military tribunals are never OK unless the civilian courts are not fully operational due to the area being a war zone. The concurring/dissent disagreed, stating that it is OK for Congress to create military tribunals under any circumstances. Is that right, and is that all we need to know about the Milligan decision? I find that case to be particularly confusing.

Anonymous said...

What was the most recent current event you showed us in class? I believe it had something to do with the death penalty, though I forget much of the significance of the story.

Professor Davis said...

Yes that's what Vinson is saying in Youngstown - based on a history of presidential seizures. He did concede that Congress had the final say but he didn't think the Taft Harley Act prevented the president from acting.

Professor Davis said...

Yes, you have Milligan right - although I don't think the dissent would allow congress to create military tribunals in any circumstances - just in the circumstances presented in the case.

Professor Davis said...

The Supreme Court upheld the use of lethal injection as a constitutional form of punishment.

Anonymous said...

just throwing it out there...i think this quiz is gonna be a doozie

Anonymous said...

Tell me about it. I'm still recovering from the last "quiz"!

Anonymous said...

Shoot.. you should see my Genetics class.. highest scores in that class are around 86.