In times of war, national emergency, etc. Can the President simply do it by Executive Order? Can he/ suspend all or part of it for as long as he thinks fit? Can Congress or the judiciary overturn the suspension?
Do Presidents resort to it very often? And what’s the actual Constitutional basis for suspension?
But we have suspended constitutional rights to specific classes of people during wartime. People of Japanense descent during WWII (interned in camps without due process) and people labeled as terrorist by present administration (Justic delayed is justic denied) come to mind.
First of all, a president is not a dictator. He doesn’t have the power to just violate people’s rights, willy-nilly. Why do you think we have a Constitution in the first place?
But of course there have always been gray areas, and a semi-truth can be stretched enough to become a truth to some people and a lie to others, and can take years or decades to sort it all out. And of course a gray area to some is stark black and white to others.
But no president (or anyone else) has the power to explicitly and unambiguously violate the Constitution. He … or his people … have to be more creative and insidious than that.
We did not suspend the rights of Japanese interns. Some of the various actions against Japanese in America were ultimately held to be consistent with their constitutional rights (Korematsu v. US). Others, were inconsistent with them (Ex parte Endo). But none of the actions were eventually found to be violations of rights which were nevertheless legal because those rights were suspended. The same is true of the War on Terror in that there has been no attempt to formally suspend recognized rights to a certain class of people. If the government could do so, we wouldn’t have all these Supreme Court cases determining whether rights have been violated since those rights would simply be suspended.
That might sound a little legalistic, but it is an important distinction. A better way to think of this would be the circumstances of war changing the calculus of rights. Rights are not legally absolute, they can be trumped by sufficient government interests. So actions that are unconstitutional in peacetime would be constitutional in wartime because of the changed calculus, not because of any formal suspension of rights.
The only constitutionally-recognized means of actual suspension of rights is the suspension of habeas corpus . During times of invasion or rebellion, the writ can be suspended allowing officials to arrest and detain people without court intervention as to the lawfulness of the detention.
Current experience shows that the Constitution can be ignored simply by wrapping the flag and religion around topic and counting on the apathy of the people and the self-interest of congress to do nothing.
Depending greatly, of course, upon the viewpoint of the individual. Many would say that current experience shows that the Constitution allows the country to defend itself with reasonable means necessary. The problem is that the mutually exclusive viewpoints are not absolutes, nor are they truisms.
By contrast, while some would view the interpretation of the Constitution in the 60s and 70s as indicative of great things, others would view the situation as showing that the Constitution can be warped and perverted by nine people in robes with an agenda. Which is the more correct viewpoint?
If the president were to invoke martial law, then you could argue that he was acting within his Constitutional powers. What bothers me are signing statements and blanket assertions that laws against torture do not apply because what the President says is legal, is legal.
I think the SC has gone too far in some cases (Roe v Wade for one), but the Congress has taken notice of that and applied some counter-balance during confirmation hearings.
I don’t see anyone challenging the signing statements. In addition, the Court has ruled that people who believe they are being secretly spied on can not sue unless they can prove they are being spied on, which they can’t because it is secret. That is scary stuff, and should concern everyone of all political stripes.
It is worth noting that the Posse Comitatus Act specifically allows the President to use the US Armed Forces for law enforcement purposes as provided for either by law or the Constitution.
If the President is given the authority to use troops for domestic purposes, such as in the Insurrection Act, there is no violation of the PCA.
The more interesting thing is allowing the President to use troops domestically as authorized by the Constitution. The hitch there is that the Constitution is silent on the matter.
On edit: the linked article seems to make a serious mistake. The law change discussed in the article primarily relates to the Insurrection Act, not the Posse Comitatus Act. The Insurrection Act allows the President to call out the army in times of lawlessness or rebellion. FWIW, the Insurrection Act predates the PCA by about six decades or so.
The Executive branch can suspend parts or the entirety of the Constitution until the cows come home; the Judicial branch has the final say in whether something is Constitutional or not, and can order the Executive to remove the Signing Statement or cancel the Executive Order. This is one of the fundamentals of checks and balances - the Executive does not decide something is Constitutional or not, regardless of what the White House counsel says - that’s the job of the Judicial Branch and ultimately the Supreme Court.
In other words, Bush’s signing statements that he can do whatever he wants are only meaningful until someone challenges them in court. Once the court rules, and the appeals process is followed up to the Supreme Court, then the the signing statement in question is tested against Constitutionality and either legal or not.
It’s the way the law works. Congress could pass a law, or the Executive could publish an executive order, making it illegal to be blonde in the United States. Until someone says the law or order is bogus and challenges it in court, and follows the appeals process up to the Supreme Court if required, the ‘law’ is legal.
In addition to Friedo’s point, I would add that using a power granted by the Constitution does not amount to suspending the Constitution. Rather, it is taking an action authorised by the Constitution itself.
Article 9 does not specify whether the President or the Congress has the power to suspend the writ. The location of this provision in Article I, dealing with the powers of the Congress, certainly suggests that the power to suspend lies with Congress, rather than being a power of the President. The Supreme Court has never addressed this point, but there is one circuit court decision holding that President Lincoln’s unilateral suspension of the writ was not within his authority: Ex parte Merryman, 17Fed. Cas.144 (No.9487) (C.C.D. Md. 1861), per Taney C.J.
Yes, that is an important distinction. I would have preferred Bushco to point to explicit powers in the Constitution to accomplish what he thought needed to be done after 9/11. Instead he justified what he did on a tortured reading of the implicit powers of the Presidency and used sketchy mechanisms like signing statements.
This is what makes me feel like Constitutional rights have been suspended already.