The Hegemony Struggle between President and Congress over War Power Authority and the Role of the Judiciary in the United States - With a Discussion on President Trump’s Travel Ban and the Judicial Decisions -
0
조회
0
다운로드
1
인용
0
참고문헌
키워드
초록
Under the U.S. Constitution, the war power is not given exclusively either topresidents or Congress as both branches share the war power authorities. Throughout the political history of the United States, the presidents and Congresshave struggled over war power authorities. It is noteworthy, however, thatpresidents have usually wielded more dominance and that Congress, due to itslimitation as a collective decision-making body, has been passive and acquiescentto presidential exercise of war power. However, presidents and Congress are not the only governmental branches thatare involved in making the war policies. The judiciary has its authority toadjudicate legal disputes concerning the war power authorities and related issues. The judiciary can check and curb the excessive exercise of presidential war powersbecause of its judicial review power and because it is not restricted by thelimitations that Congress has. The judiciary can play a significant role in changingthe directions of the war efforts and policies. For example, the Supreme Courtruled against the Bush administration by rejecting President Bush’s executive orderssetting up the detention facility at Guantanamo Bay and establishing procedures todetermine the status of detainees as to whether they were unlawful combatants. Also, the judiciary has exercised its judicial review power effectively inYoungstown case in which the Supreme Court supported the position of Congress over domestic matters in terms of war power by holding that the regulation ofsteel mills was the prerogatives of Congress and that Congress had the power tofund and support the war by using the means available domestically. But the moreimportant lesson from the Youngstown case is that the judiciary is the finaldecision-making body on the Constitutional interpretation as to which branch hasmore authorities in specific war making policies. When President Trump issued executive orders banning the entry of foreignnationals from seven Muslim countries (“Travel Ban”), the orders were struckdown by the federal District courts and Court of Appeals. However, the SupremeCourt reversed the lower federal court decisions by upholding the travel banalthough the Trump administration’s argument that the travel ban was necessary fornational security was not supported by merit or substance. However, it is essential that the judiciary—especially the Supreme Court—remains as a counterbalance to presidential overreaching with respect to theexercises of war powers by exercising its judicial review power adequately. Especially when the president and Congress are in dispute concerning war powerauthorities, the judiciary should play an important role of the neutral andindependent decision-maker on the constitutional interpretation by rising above theparty-line politics and politicized decisions.
Abstract
Under the U.S. Constitution, the war power is not given exclusively either topresidents or Congress as both branches share the war power authorities. Throughout the political history of the United States, the presidents and Congresshave struggled over war power authorities. It is noteworthy, however, thatpresidents have usually wielded more dominance and that Congress, due to itslimitation as a collective decision-making body, has been passive and acquiescentto presidential exercise of war power. However, presidents and Congress are not the only governmental branches thatare involved in making the war policies. The judiciary has its authority toadjudicate legal disputes concerning the war power authorities and related issues. The judiciary can check and curb the excessive exercise of presidential war powersbecause of its judicial review power and because it is not restricted by thelimitations that Congress has. The judiciary can play a significant role in changingthe directions of the war efforts and policies. For example, the Supreme Courtruled against the Bush administration by rejecting President Bush’s executive orderssetting up the detention facility at Guantanamo Bay and establishing procedures todetermine the status of detainees as to whether they were unlawful combatants. Also, the judiciary has exercised its judicial review power effectively inYoungstown case in which the Supreme Court supported the position of Congress over domestic matters in terms of war power by holding that the regulation ofsteel mills was the prerogatives of Congress and that Congress had the power tofund and support the war by using the means available domestically. But the moreimportant lesson from the Youngstown case is that the judiciary is the finaldecision-making body on the Constitutional interpretation as to which branch hasmore authorities in specific war making policies. When President Trump issued executive orders banning the entry of foreignnationals from seven Muslim countries (“Travel Ban”), the orders were struckdown by the federal District courts and Court of Appeals. However, the SupremeCourt reversed the lower federal court decisions by upholding the travel banalthough the Trump administration’s argument that the travel ban was necessary fornational security was not supported by merit or substance. However, it is essential that the judiciary—especially the Supreme Court—remains as a counterbalance to presidential overreaching with respect to theexercises of war powers by exercising its judicial review power adequately. Especially when the president and Congress are in dispute concerning war powerauthorities, the judiciary should play an important role of the neutral andindependent decision-maker on the constitutional interpretation by rising above theparty-line politics and politicized decisions.
참고문헌 (60)
- Harold Hongju Koh, "The National Security Constitution: Sharing Power after the Iran-Contra Affair" (1990)
- J. Mitchell Pickerill, "The Politics of Judicial Independence", pp.121~ (2011)
- Jack N. Rakove, "Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study", Perspectives in American History, 1, pp.233~ (1984)
- John Yoo, "Crisis and Command, The History of Executive Power from George Washington to George W. Bush", pp.2~ (2009), Kaplan Publishing
- Kenneth R. Mayer, "With the Stroke of a pen: executive orders and presidential power", pp.35~ (2001)
- Louis Fisher, "Constitutional Conflicts between Congress and the President", pp.119~ (1997)
- Louis Fisher, "Presidential Spending Power", pp.88~ (1975)
- Louis Fisher, "Presidential War Power" (1995)
- Mark C. Miller, "Making Policy, Making Law", pp.77~ (2004)
- Mark C. Miller, "The View of the Courts from the Hill: Interactions between Congress and the Federal Judiciary", pp.208~ (2009)
- Peter Irons, "War Powers: How the Imperial Presidency Hijacked the Constitution", pp.219~ (2005)
- Phillip Cooper, "By Order of The President, The Use & Abuse of Executive Direct Action" (2014)
- Shep Melnick, "Between the Lines: Interpreting Welfare Rights", pp.251~253 (1993)
- Stephen B. Burbank, "Judicial Independence at the Crossroads", pp.9~42 (2002)
- Terry Moe, "the Presidency and the Political System" (1999)
- William G. Howell, "Power Without Persuasion, The Politics of Direct Presidential Act", pp.150~ (2003)
- Eli E. Nobelman, "Financial Aspects of Congressional Participation in Foreign Relations", The Annals, 289, pp.145~ (1953)
- Henry P. Monaghan, "The Protective Power of the Presidency", Colum. L. Rev, 93(1), pp.17~ (1993)
- Joel L. Fleishman, "Law and Orders: The Problem of Presidential Legislation", Law and Contemporary Problems, 40, pp.5~ (1976)
- Kenneth Mayer, "Executive Orders and Presidential Power", Journal of Politics, 61, pp.445~466 (1999)
- Lori Fisler Damrosch, "The Clinton Administration and War Powers", Law & Contemp. Probs, 63-SPG, pp.125~ (2000)
- Louis Fisher, "How Tightly Can Congress Draw the Purse Strings?", Am. J. Int’l L, 83, pp.758~ (1989)
- Michael Glennon, "The Executive’s Misplaced Reliance on War Powers ‘Custom’", Am. J. Int’l L, 109, pp.551~ (2015)
- Tara Branum, "President Or King? The Use and Abuse of Executive Orders in Modern-Day America", Journal of Legislation, 28, pp.1~ (2002)
- W. Neil Eggleston, "The Trump Administration and the Break down of Intro-Executive Legal Process", Yale L.J. Forum, 127, pp.825~ (2018)
- William L. Morrow, "Legislative Control of Administrative Discretion: The Case of Congress and Foreign Aid", Journal of Politics, 30, pp.986~ (1968)
- William Spong, "War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? By W. Taylor Revely III. University of Virginia Press, Charlottesville, Va., 1981, Pp. IX, 394", Va. L. Rev, 68, pp.1437~ (1982)
- "Aziz v. Trump, 234 F.Supp. 3d 724, 739 (E.D. Va 2017)", ~ (2017)
- "Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837", ~ (1984)
- "Felker v. Turpin 518 U.S. 1051", ~ (1996)
- "Hamdan v. Rumsfeld, 548 U.S. 557, 632", ~ (2006)
- "Hamdi v. Rumsfeld, 542 U.S. 507", ~ (2004)
- "Hawai’i v. Trump, 245 F. Supp. 3d 1227, 1239 (D. Haw. 2017), aff’d Hawai’i v. Trump, 859 F.3d 741 (9th Cir. 2017)(per curiam)", ~ (2017)
- "Hawai’i v. Trump, 265 F.Supp. 3d 1140 (D. Hawai’i 2017), aff’d Hawai’i v. Trump, 878 F.3d 662 (9th Cir. 2017)", ~ (2017)
- "IRAP v. Trump, 241 F.Supp. 3d 539, 566 (D.Md. 2017), aff’d IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017)", ~ (2017)
- "Int’l Refugee Assistance Project v. Trump, 265 F. Supp. 3d 570 (D. Md. 2017), aff’d Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Feb. 15, 2018)", ~ (2018)
- "Korematsu v. United States, 323 U.S. 214, 234, 236-240", ~ (1944)
- "Luftig v. McNamara, 252 F. Supp. 819 (D.D.C. 1966)", ~ (1966)
- "Meyers v. Nixon, 339 F. Supp. 1388 (S.D.N.Y. 1972)", ~ (1972)
- "Mitchell v. R. Laird, 488 F.2d 611", ~ (1973)
- "Trump v. Hawai’i, Supreme Court Opinion 17-965" (2018)[URL]
- "Trump v. IRAP, 137 S. Ct. 2080", ~ (2017)
- "Washington v. Trump, No. 17-141, 2017 WL 462040, at *2(W.D. Wash. Feb. 3, 2017)", ~ (2017)
- "Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 587", ~ (1952)
- Adam Liptak, "Trump’s Travel Ban is Upheld by Supreme Court", New York Times, ~ (2018)
- Bruce Ackerman, "Congressional Leadership is Necessary and Proper", L. A. Times, ~ (2007)
- Bromley K. Smith, "Organizational History of the National Security Council during the Kennedy and Johnson Administrations 23" (1988), National Security Council
- "Cornell Law School Legal Information Institute"[URL]
- "Executive Order 10340" (1952)[URL]
- "Executive Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017)", ~ (2017)
- "Executive Order No. 13,780, 82 Fed. Reg. 13209 § 2(f)", ~
- "Federal Election Campaign Act of 1971, Pub.L. No. 92-225, 86 Stat. 3(1972)(codified as amended in 47 U.S.C.)", ~ (1972)
- "Freedom of Information Act, 5 U.S.C. §552", ~ (1995)
- "Letter from M. Waters, Assistant Secretary Legislative Affairs to Sen. Van Hollen (Feb. 22, 2018)", ~ (2018)
- "Presidential Records Act, 44 U.S.C. § 2201", ~
- "Presidential Vetoes, History, Art & Archives"[URL]
- Staff of House Committee on Government Operations, "85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957)", ~ (1957)
- "The Federalist No. 70 (Alexander Hamilton)", 424~
- "U.S. Const. Art. I, §§ 1, 8; Art. II, §§ 1, 2, 3", ~
- "War Powers Resolution, 50 U.S.C. §§ 1541-48", ~