Dames & Moore V. Regan (1981): Implicit powers

• When Iran tool hostages, President Carter declared an emergency and blocked the removal and transfer of all Iranian property subject to Jurisdiction of the US. Then Carter agreed to suspend all claims pending in American courts. In this case, a private party seeks to prevent enforcement of various executive orders. The opinion Court demonstrates how POLITICS effects the Court.

• Majority: REHNQUIST: Although the Supreme found no specific authority for the suspensions of claims, legal justifications were discovered somewhere in the combination of past presidential practices to settle claims by executive agreement, the history of “implicit” congressional approval, and the failure of congress to contest the Iranian agreement. The Court, straining to uphold an agreement it could not possibly overturn, limited the reach of its opinion by confining it to the specific circumstances in the case.

Korematsu V. United States (1944): Emergency Executive Order

• During WWII, Roosevelt issued an executive order issuing a curfew and the exclusion of Japanese-Americans from West Coast military areas. Exclusion meant the placement in imprisonment camps. The order, and later a congressional statute, was aimed at US Citizens of Japanese dissent, and was based on the belief that the Japanese are “subversive” and an “enemy race”. A unanimous Court upheld the curfew, although MURPHY remarked that it “bears a melancholy resemblance to the treatment accorded to the members of the Jewish race in Germany and in other parts of Europe. The court upheld the imprisonment camps by a vote (6-3), with sharp dissents.

• Majority: BLACK: Nothing short of apprehension of the gravest imminent danger to the public safety can constitutionally justify either (the curfew or exclusion). The military authorities considered that the need was for action was great, and time was short. We cannot – by availing ourselves of the calm perspective of hindsight – now say that at the time these actions were unjustified.

• Dissent: MURPHY, ROBERTS: The discretion of military must have limits, especially when there is not a state of martial law. There was no “immediate, imminent, and impending” public danger to justify such racial discrimination.

United States V. Nixon (1974): Executive Privilege

• The Special Prosecutor investigating the Watergate affair filed a motion for a subpoena to produce certain tapes and documents relating to conversations with President Nixon. Nixon claimed EXECUTIVE PIVILEGE, stating that he should have be able to shield documents that would injure the public, as George Washington suggested would be appropriate.

• Majority: BURGER: A unanimous Court rejected the argument that the decision to release such documents is up to the President, not the courts. To permit Nixon absolute control over the documents would have prevented the judiciary from carrying out its duties.

Clinton V. Jones (1997): Separation of Powers, Presidential Immunity

• A unanimous court rejected President Clinton’s claim that Fitzgerald immunity could be invoked for claims that arose before President took office. Jones alleged that the then Governor sexually harassed her. The President said that the uniqueness of his office demands that he be free of damage law suits while sitting.

• Majority: STEVENS: The litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power. In sum, it is settled that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States (from Fitzgerald). Ironically, Stevens found little reason to believe that the lawsuit, and the prospect of similar ones in the future, would actually distract the President.