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PRESIDENTIAL POWER, CONGRESSIONAL AUTHORITY, AND ROLE OF COURTS

One of the most important issues regularly before the Supreme Court is the constitutional authority of Congress to enact and enforce legislation.  A critical issue facing the Court, particularly given the war on terror, is the extent of executive authority, and whether the President will exercise untrammeled unilateral power, unchecked by the Court.  Also, in recent years, a narrow majority on the Court has pursued a new “federalism” revolution, undermining congressional power through narrow interpretations of the Commerce Clause and Section 5 of the Fourteenth Amendment.

  John Roberts’ record raises troubling concerns about his legal views concerning the powers of the executive and legislative branches of government.  In particular, it appears that Roberts views the Constitution as creating a supreme executive, and also that he would support the “federalist” revolution that seeks to interpret the Constitution in a manner that would undercut the authority of Congress to enact and enforce laws protecting the important rights and interests of all Americans.

Executive Power

While working in the Reagan and Bush administrations, Roberts was a strong advocate of presidential power, including even at the expense of independent regulatory agencies.  For example, in a July 15, 1983 memorandum to White House counsel Fred Fielding, Roberts commented favorably on proposed Justice Department testimony suggesting that it was time to “reconsider the existence” of independent regulatory agencies and to “take action to bring them back within the executive branch.”  Roberts recognized that the suggestion was “provocative” but specifically agreed that such agencies are a “Constitutional anomaly.”^[99]  This view of independent agencies like the FCC and the FTC is extremely troubling.  It would significantly expand presidential power and undermine the independence of agencies charged with regulating corporate behavior.

In recent years, the administration of President George W. Bush has engaged in some of the most extensive uses and abuses of executive power in American history.  Several legal challenges to the administration’s exercise of power have come before Roberts in his short career as a federal judge.  He has shown significant deference to presidential authority and the executive branch in its use of power and its interpretation of law.

For example, in Hamdan v. Rumsfeld, No. 04-5393, 2005 U.S. App. LEXIS 14315 (D.C. Cir. 2005), Judge Roberts joined in a 3-0 ruling that upheld the military commissions created by the Bush administration to try foreign nationals held at Guantanamo Bay for war crimes.  The ruling was such a sweeping acceptance of the administration’s position that one journalist wrote that “Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections.”^[100]  (Several legal ethicists have raised questions about the propriety of Roberts hearing and ruling on a case so important to the Bush administration at the very time he was actively interviewing with White House officials for a possible Supreme Court nomination.)^[101]

Since the use of the U.S. naval base at Guantanamo Bay as a detention facility for suspected al Qaeda and Taliban members, serious questions have been raised regarding the treatment of detainees there.  Reportedly, hundreds of detainees have been held at the facility for three years or more, and, of that number, only four have been formally charged.  Several civil and human rights groups filed briefs in Hamdan’s case, arguing that the facility’s conditions, in addition to the interrogation techniques employed there, could result in coerced confessions and false statements that could be used in the military commissions.  On November 8, 2004, the district court granted Hamdan’s habeas petition, holding, among other things, that the military commissions were unlawful.  344 F. Supp. 2d 152 (D.D.C. 2004).  The court also concluded that the 1949 Geneva Convention is a self-executing treaty that is effective as domestic law and that Hamdan must be given its protection unless and until a “competent tribunal” concludes otherwise.

On appeal, a three-judge panel of the D.C. Circuit, including Judge Roberts, reversed, accepting the position of the Bush administration that the military commissions were lawful and authorized by Congress based primarily on the general congressional authorization to use force against terrorists.  In addition, the Court of Appeals disagreed with the district court that the Geneva Convention was self-executing, agreeing with the Bush administration that its provisions were not enforceable in court. 

Two of the judges, including Roberts, held that the treaties do not apply to suspected members of al Qaeda, accepting the administration’s argument that the President’s decision that the Geneva Convention applies to Taliban detainees, but not to al Qaeda detainees, is non-reviewable.  On that point, the majority said that “the President’s decision to treat our conflict with the Taliban separately from our conflict with al Qaeda is the sort of political-military decision constitutionally committed to him.  To the extent there is ambiguity about the meaning of [Geneva Convention] Common Article 3 as applied to al Qaeda and its members, the President’s reasonable view of the provision must therefore prevail.”  2005 U.S. App. LEXIS 14315 at *24 (internal citation omitted).^[102]     Georgetown University law professor Neal Katyal and Navy Lt. Commander Charles D. Swift, who are counsel in the case, explained that the ruling of the Court of Appeals “is contrary to 200 years of constitutional law.  [The] ruling places absolute trust in the president, unchecked by the Constitution, statutes of Congress and long-standing treaties ratified by the Senate of the United States.”^[103]

  In another case, Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), cert. denied, 125 S. Ct. 1928 (2005), Judge Roberts alone among his colleagues on a three-judge panel sided with the Bush administration, this time in its efforts to retroactively deprive the federal courts of jurisdiction to hear claims brought against Iraq by American soldiers held and tortured as POWs there during the first Gulf War.  In Acree, seventeen American soldiers who had been held as prisoners of war and tortured by Iraq during the Gulf War sued the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA).  Under the FSIA, foreign states are immune to suits for money damages.  The terrorism exception applies to damages claims for personal injury or death caused by torture or other acts of terrorism.

The district court entered a default judgment against the defendants after they failed to appear and awarded compensatory and punitive damages to the plaintiffs totaling more than $959 million.  The Bush administration moved to intervene to contest the district court’s subject matter jurisdiction, arguing that the Emergency Wartime Supplemental Appropriations Act (EWSAA) “made the terrorism exception of the FSIA inapplicable to Iraq and thereby stripped the District Court of its jurisdiction” over the suit.  370 F.3d at 43.  The district court denied the motion as untimely and the administration appealed.

All three members of the D.C. Circuit panel, which included Judge Roberts, agreed that the district court had erred in denying the motion to intervene.  All three judges also agreed that the plaintiffs could not pursue their claims.  However, Judge Roberts alone would have gone further and adopted the position of the Bush administration that the federal courts did not even have jurisdiction to hear the plaintiffs’ claims for damages resulting from torture and other acts that occurred when Iraq was designated as a terrorist state.^[104]  In another area relating to civil liberties, recently released documents from Roberts’ tenure in the Reagan administration reveal that Roberts personally disagreed with the position of the White House counsel’s office in opposition to a national identification card.  Many members of Congress and others have had concerns about the civil liberties implications of a national identification card, even in the aftermath of the 2001 terrorist attacks.  Roberts, in an October 1983 memo, dismissed such concerns as “largely symbolic.”^[105]  Roberts went on to say, “And I think we can ill afford to cling to symbolism in the face of the real threat to our social fabric posed by uncontrolled immigration.”^[106]

Congressional Power and the New Federalism

In recent years, a narrow majority on the Supreme Court, as well as a number of lower court judges, urged on by a right-wing legal and political movement, have launched a “states’ rights/federalism” revolution, cutting back on the authority of Congress to enact and enforce critical laws important to Americans’ rights and interests, including laws prohibiting discrimination and protecting the environment.  The Court’s “federalism” rulings have struck down all or important parts of a number of federal laws by narrowly construing congressional power under the Commerce Clause and Section 5 of the Fourteenth Amendment, and by giving an expansive reading to state sovereign immunity under the Eleventh Amendment.^[107]

As discussed above, while serving in the Reagan administration, long before the “federalism” movement gained significant ground in the courts, Roberts espoused that view in opposing federal voting rights.  As a judge, Roberts has already given a strong indication that he subscribes to the ideology of this new “federalism” revolution.  In Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003), cert. denied, 541 U.S. 1006 (2004), Roberts issued a troubling dissent from the decision by the full D.C. Circuit not to reconsider the ruling by a three-judge panel upholding the constitutionality of the Endangered Species Act as applied in this case.

The lawsuit involved a real estate development company’s contention that the application of the Endangered Species Act to its construction project in California was an unconstitutional exercise of federal authority under the Commerce Clause.  After the United States Fish and Wildlife Service determined that the company’s project “was likely to jeopardize the continued existence of the arroyo southwestern toad,” placed on the Endangered Species List by the Secretary of the Interior in 1994, the company filed suit “[r]ather than accept an alternative plan proposed by the Service.”  Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003). 

The district court dismissed the company’s complaint, and a panel of the D.C. Circuit (not including Judge Roberts) unanimously upheld the dismissal (323 F.3d 1062), following prior D.C. Circuit precedent upholding congressional authority under the Endangered Species Act.  The panel’s ruling not only followed D.C. Circuit precedent, but was also consistent with a recent ruling of the Fourth Circuit in Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001).  The opinion in that case, upholding the authority of Congress to protect endangered species on private lands, was written by Judge J. Harvie Wilkinson, an archconservative Republican appointee.

By a vote of 7-2, with only Judges Roberts and Sentelle dissenting, the D.C. Circuit in Rancho Viejo denied a petition for rehearing en banc of the panel’s ruling.  In his dissent from the denial of rehearing, although Judge Roberts indicated that there might be grounds to uphold the application of the Endangered Species Act in this case, he also stated that “[t]he panel’s approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce . . . among the several States.’”  334 F.3d at 1158.

Roberts’ dissent strongly suggested that he thought Congress lacked the power under the Commerce Clause to protect the endangered species in this case and therefore that it would be unconstitutional to apply the Act here.  Moreover, Roberts indicated that he may well subscribe to an extremely constricted interpretation of the Commerce Clause recently rejected by a narrow majority of the Supreme Court in Gonzales v. Raich, 125 S. Ct. 2195 (2005).  In Raich, the Court majority held that Congress’ authority under the Commerce Clause includes the power to prohibit purely local cultivation and use of marijuana for medical purposes even in compliance with state law. 

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