Cases

Judicial Power: Marbury v. Madison (1803)

D.C v. Heller (2008)

Baker v. Carr (1962)

Rucho v Common Cause (2019)

Separation of Powers: Youngstown Sheet & Tube Co. v. Sawyer (1952)

U.S v. Curtiss-Wright Export Corp.(1936)

Boumediene v. Bush (2008)

Trump v. U.S (2024)

1
 Judicial Power
Marbury v Madison

Rule of Law

The United States Supreme Court has the authority to review laws and
legislative acts to determine whether they comply with the United States
Constitution.

Facts

United States President John Adams appointed several individuals to the

judiciary in the final days of his presidency. The group of appointees was duly
approved by Congress, and Adams had signed their commissions. However,
finalizing the appointments required delivering the commissions to the
appointees, and that step had not been completed by the time Adams’s term
expired. The next president, Thomas Jefferson, refused to fully finalize
Adams’s judicial appointments and directed his secretary of state, James
Madison (defendant), not to deliver the commissions. William Marbury
(plaintiff), who had been appointed a justice of the peace of the District of
Columbia by Adams, brought an action against Madison in the United States
Supreme Court. Marbury sought a writ of mandamus to compel Madison to
deliver the commission and finalize Marbury’s appointment. Congress had
authorized the Supreme Court to issue writs of mandamus as part of the
Judiciary Act of 1789, so Marbury brought his action under the Court’s
original jurisdiction.

Issue

Does the United States Supreme Court have the authority to review laws and
legislative acts to determine whether they comply with the United States
Constitution?

Holding and Reasoning (Marshall, C.J.)

Yes. The United States Supreme Court has the authority to review laws and
legislative acts to determine whether they comply with the United States
Constitution. The Constitution clearly limits the powers that may be
exercised by each branch of government. The legislative branch must
operate within these constitutionally defined limits in passing laws. The role
of the judicial branch is to identify, interpret, and apply the law to decide
cases. If there is a conflict between a law passed by Congress and the
Constitution, then the Constitution must control, and the offending law will

2
be void. Here, Marbury has a right to his commission as justice of the peace
because he was lawfully appointed to that position by the president’s act of
signing his commission, further enforced by his confirmation in the Senate.
Madison’s refusal to finalize Marbury’s appointment interferes with Marbury’s
legal title, and Marbury is entitled to a remedy under federal law. However,
even though a writ of mandamus would have been an appropriate remedy, §
13 of the Judiciary Act of 1789, which authorized the United States Supreme
Court to give such a remedy, is unconstitutional. The act allows the Supreme
Court to have original jurisdiction over actions for writs of mandamus.
However, this provision directly conflicts with Article III of the Constitution,
which greatly limits the cases in which the Supreme Court has original
jurisdiction and provides it with appellate jurisdiction in all other cases. The
act is unconstitutional because it seeks to expand the Supreme Court’s
original jurisdiction, and therefore, the Court cannot exercise jurisdiction over
Marbury’s claim.

DC V Heller

Rule of Law

Subject to certain safety limitations, the Second Amendment to the United

States Constitution creates an individual right to keep and bear arms apart
from any military purpose.

Facts

Dick Heller (plaintiff), a Washington, DC, special police officer, applied for a
registration certificate from the city of Washington, DC, for a handgun he
wished to keep at home. A Washington, DC, statute prohibited possessing a
handgun in the home without a license, and it also required any lawful
handgun kept in the home to be rendered inoperable through use of a trigger
lock. The District of Columbia (defendant) denied Heller’s application for a
registration certificate based on its law. Heller then filed a lawsuit in federal
district court for the District of Columbia arguing that the city’s bar on the
registration of handguns, its prohibition on guns in the home without a
license, and its requirement of trigger locks for lawful guns in the home all
violated the Second Amendment. The district court dismissed Heller’s
complaint, but the United States Court of Appeals for the District of Columbia
Circuit reversed on the grounds that the Second Amendment grants an
individual the right to bear arms. The United States Supreme Court granted
certiorari.

3
Issue

Does a law prohibiting the possession of usable handguns in the home

violate the Second Amendment to the United States Constitution?

Holding and Reasoning (Scalia, J.)

Yes. Although the Second Amendment appears to have been created for the
purpose of ensuring the creation of a future militia, this purpose ultimately
does not change the fact that the Second Amendment was designed to
create an individual right to keep and bear arms. Nothing suggests that the
individual right to keep and bear arms is conditional on being for a strictly
military purpose. However, states must be free to regulate who can possess
firearms based on certain safety concerns (for example, states are free to
deny handgun registration and possession to felons and the mentally ill).
However, provided Heller does not fall within the categories of people
prohibited from owning handguns due to safety concerns, the District of
Columbia’s prohibition on handgun possession in the home, as well as its
requirement that lawful handguns in the home be rendered inoperable for
self-defense, is unconstitutional.

Dissent (Stevens, J.)

The majority does not adequately describe the scope of the individual right
to keep and bear arms. The text of the amendment itself, its history, and the
Supreme Court’s prior decision in United States v. Miller, 307 U.S. 174
(1939), provide an ample discussion of the bounds of the right that differ
from the majority’s conclusion. In Miller, the Supreme Court held that it was
unlawful for two men to possess a sawed-off shotgun because their reasons
for doing so bore no relationship to the purpose of preserving a well-
regulated militia. The Miller holding, as well as the historical context and
debate surrounding the adoption of the Second Amendment, means that the
individual right to keep and bear arms was designed to be solely for the
purpose of preserving a well-regulated militia. Heller seeks to own a handgun
for self-defense and not a militia-related purpose. Therefore, the majority’s
holding that his right to do so is constitutionally protected is incorrect.

Dissent (Breyer, J.)

The District of Columbia’s law does not violate Heller’s Second Amendment
rights. The Second Amendment’s protection of the right to bear arms is not
absolute. The District of Columbia’s law should be overturned only if it is an
unreasonable or inappropriate regulation of Heller’s Second Amendment

4
rights. Even if the Second Amendment could be interpreted as protecting a
self-defense (and not militia-based) purpose for owning a handgun, the
District of Columbia law does not unreasonably interfere with the right of
self-defense, because its purpose is to combat the presence of handguns in
high-crime urban areas. In examining future similar laws designed to combat
health and safety risks by limiting Second Amendment rights, courts should
adopt a unique level of scrutiny. A better approach would be an “interest-
balancing inquiry” whereby the court would seek to determine whether a
particular statute burdens an interest protected by the Second Amendment
in a way that is disproportionate to the statute’s effects on other important
governmental interests. In applying this new level of scrutiny to the District
of Columbia’s law, the law is a permissible, proportional legislative response
to the serious problem of handguns and urban crime, and thus it furthers an
important government interest in health and safety.

Baker v. Carr

Rule of Law

A challenge to malapportionment of state legislatures brought under the

Equal Protection Clause is not a political question and is thus justiciable.

Facts

Baker (plaintiff) was a Republican living in Shelby County, Tennessee. The

Tennessee Constitution required that legislative districts be redrawn every 10
years to adjust for changes in population. Baker brought suit against Carr
(defendant), secretary of state in Tennessee, in his official capacity, alleging
that because Tennessee had not actually redistricted since 1901, the urban
Shelby County district had 10 times as many residents as did the more rural
districts. As a result, Baker argued that rural votes counted more than urban
votes, and that he was thus denied equal protection of the laws. The State of
Tennessee argued that legislative districting issues were not judicial
questions but political questions, and were thus not capable of being decided
by the courts based on the Constitution’s prohibition on the Court’s deciding
political questions.

Issue

Does an equal-protection challenge to malapportionment of state legislatures

qualify as a nonjusticiable political question?

Holding and Reasoning (Brennan, J.)

5
No. Under Luther v. Borden, 48 U.S. 1 (1849), challenges to the
malapportionment of state legislatures brought under the Guaranty Clause of
the Constitution are inappropriate political questions. Unlike Luther, the case
at bar is brought under the Equal Protection Clause. There is no question that
the Court is meant to adjudicate plaintiffs’ rights to equal protection under
the laws due to its precedent. For an issue to be a nonjusticiable political
question, one of six tests (listed in descending order of importance and
certainty) must be satisfied: (1) a textually demonstrable constitutional
commitment of that issue to another political branch; (2) a lack of judicially
discoverable and manageable standards for resolving the issue; (3) an
impossibility of deciding the issue without making an initial policy
determination of a kind not suitable for judicial discretion; (4) a lack of
respect for the other branches of government in undertaking independent
resolution of the case; (5) an unusual need for unquestioning adherence to a
political decision already made; or (6) the potential for embarrassment for
differing pronouncements of the issue by different branches of government.
In the present case, there is no textually demonstrable commitment of equal-
protection issues to other branches of government. There are certain judicial
standards already in place for adjudicating such claims, and because Baker is
an individual person suing a state government, there are no separation-of-
powers concerns implicated. This claim does not fall under one of the six
tests of a political question, and therefore, the claim is justiciable. The case is
remanded to the district court for consideration of the merits.

Concurrence (Douglas, J.)

The issue presented in this case deals more with the extent to which a state
is allowed to weigh one citizen’s vote more heavily than another’s. The right
to vote is inherent in the Constitution. Each vote should count equally.
Designing legislative districts such that one vote counts more in one district
than in another represents the exact kind of invidious discrimination by
states that the Equal Protection Clause was designed to prohibit. Baker
should be given a chance to prove his claim in court.

Concurrence (Clark, J.)

The disparate weight given to votes from different districts constitutes an

actionable violation of the Equal Protection Clause. It is wrong to remand the
matter to the Tennessee courts with no clear guidance as to how to proceed
in granting relief, and thus the majority’s holding, while appropriate, should
have gone farther.

6
Concurrence (Stewart, J.)

The concurring and dissenting opinions confuse the issue presented in this
case as well as the holding. The majority makes three rulings: that the
jurisdiction is proper over the subject matter; that Baker states a justiciable
cause of action under which he should be entitled to relief; and that Baker
has standing to challenge Tennessee’s apportionment statutes. The holding
must be narrowly and clearly defined for future jurisprudence.

Dissent (Harlan, J.)

The majority’s analysis is clouded by too many tangential issues to focus on

the real issue at hand. The only real issue in the case is whether the
complaint sufficiently alleges a violation of a federal right such that a district
court would have jurisdiction over the case. The complaint, taken as a whole
to be true, does not state a claim upon which relief can be granted under
Federal Rule of Civil Procedure 12(b)(6). Nothing in the Equal Protection
Clause of the Fourteenth Amendment suggests that state legislatures must
deliberately structure their districts so as to reflect absolute equality of
votes. Additionally, the complaint does not adequately show that
Tennessee’s existing system of apportionment is so arbitrary and capricious
as to violate the Equal Protection Clause. Without more facts alleging a
violation, Baker does not state a claim upon which relief may be granted.

Dissent (Frankfurter, J.)

The majority’s decision is not based on history or precedent, and it seriously

violates judicial restraint and separation-of-powers concerns under the
Constitution. Prior cases dealing with the relationship of population to
legislative representation have been uniformly decided to the contrary as
being nonjusticiable political questions. No meaningful difference exists
between a challenge brought under the Equal Protection Clause and the
Guaranty Clause.

Rucho v. Common Cause

Rule of Law

Partisan gerrymandering is a nonjusticiable political question.

Facts

Two state legislatures adopted redistricting plans designed to dilute one

political party’s vote. First, North Carolina Republican legislators, including
Robert Rucho (defendants), drew a redistricting map that produced nine

7
Republican and three Democratic winners, even though statewide more
Democrats received votes than Republicans. Second, Maryland Democratic
legislators used a map designed to “flip” the one remaining Republican
district by moving 360,000 voters out and 350,000 new voters in, resulting in
the district electing a Democrat. Voters in both states (plaintiffs) challenged
the redistricting maps in federal court. Both district courts found for the
voters. The legislators appealed directly to the United States Supreme Court,
which consolidated the appeals and accepted review. At the outset, the Court
examined whether it had power to address partisan gerrymandering.

Issue

Is partisan gerrymandering a nonjusticiable political question?

Holding and Reasoning (Roberts, C.J.)

Yes. Partisan gerrymandering is a nonjusticiable political question. Article III

of the Constitution limits federal-court jurisdiction to deciding cases or
controversies. Legal issues are judicable, but political questions must find
resolution elsewhere. Gerrymandering has existed since 1812, when future
Vice President Gerry approved redistricting resulting in a district shaped like
a salamander, hence the term gerrymander. The Elections Clause empowers
state legislatures to regulate how they elect congressional representatives
while allowing Congress to make or alter those regulations. The clause does
not prevent limited judicial review of electoral issues such as one-person,
one-vote rules and racial gerrymandering. However, courts have found
political gerrymandering constitutional, reasoning that Congress would not
have entrusted districting to political entities if those entities could not
consider partisan lines. No law actually proscribes partisan classifications.
The issue is whether partisan gerrymandering has gone too far. Correcting all
partisan districting would amount to unprecedented judicial intervention in
the political election process and require a clear, bright-line standard
between acceptable and unconstitutional gerrymandering. Justiciability
requires the ability to set a definitive standard. None of the tests suggested
provide a manageable standard or a sound reason to judicially reallocate
power among political parties. First, the three-part predominant-intent test
suggested by the courts below is inherently unworkable and would require
courts to decide whether election outcomes match voter partisanship. That
test is unworkable because intent to obtain a partisan advantage is
constitutional. Second, the First Amendment test examines whether
legislators intended to or actually burdened voters based on their political
affiliations but provides no workable standard for deciding when partisanship

8
has gone too far. If redistricting violated the minority party’s First
Amendment rights, all partisan districting decisions would fail. Third, the
dissent advocates a median approach that would use each state’s own
districting criteria to identify excessive political gerrymandering, but that
would set an unworkable standard that would change for every state, every
year. Fourth, the Elections Clause and Article I guarantee people the right to
elect representatives and establish the time, place, and manner of elections
but, again, do not provide judicially enforceable limits. Finally, nonjudicial
remedies are available. States may enact laws governing districting,
establish independent districting commissions, and invalidate redistricting
plans under their own laws. Courts cannot assess political gerrymandering
without a workable standard. The case is dismissed as nonjusticiable.

Dissent (Kagan, J.)

The majority refuses to remedy a constitutional violation claiming it exceeds

the Court’s judicial abilities. The gerrymanders here deprived hundreds of
thousands of citizens of their right to equal participation in the electoral
process. The redistricting plans in North Carolina and Maryland demonstrate
an egregious degree of partisan gerrymandering. Free and fair elections are
essential to the sovereignty of the people. Partisan gerrymandering both
subverts democracy and denies voters’ constitutional rights. Over the past
several years, federal courts have set and applied districting standards using
each state’s own fairness criteria as a baseline. A three-part test that
evaluates intent, effect, and causation identifies excessive partisan
gerrymandering. Applying those tests showed both the North Carolina and
Maryland redistricting plans as extreme examples of gerrymandering. The
statistics show that politicians entrenched themselves by diluting the votes
of the opposing party, effectively beating democracy. The courts below
applied a neutral, manageable standard to prevent partisan dilution of the
vote. This court should have affirmed those efforts to restore the people’s
voting power, not overturned them.

9
 Separation of Powers
Youngstown Sheet & Tube Co. v. Sawyer

Rule of Law

The president of the United States may not engage in lawmaking activity
absent an express authorization from Congress or the text of the
Constitution.

Facts

In late 1951, steel-mill owners and their employees had disagreements over
the terms of collective-bargaining agreements. Unable to reach an
agreement, the steel-mill employees’ representative gave notice of intent to
strike after the expiration of their current agreement. The federal
government unsuccessfully entered the negotiations, and on April 4, 1952,
10
the steel-mill employees’ union gave notice of its intent to strike on April 9,
1952. The importance of steel as a component in weapons and war materials
led President Truman to believe that a reduction in steel production from a
nationwide strike would jeopardize the nation’s security. The president issued
Executive Order 10340 directing Sawyer (defendant), the secretary of
commerce, to take control of and continue operating most of the nation’s
steel mills. Sawyer carried out the order, and Youngstown Sheet & Tube Co.
(plaintiff), along with other steel-mill operators, brought suit in district court
alleging that the president’s order amounted to an exercise of lawmaking, a
legislative function reserved expressly for Congress. Therefore, the
president’s exercise of lawmaking was unconstitutional. The district court
granted an injunction in favor of the Youngstown Sheet & Tube Co., on the
grounds that the president acted unconstitutionally, but the court of appeals
stayed the injunction. The United States Supreme Court granted certiorari.

Issue

May the president of the United States, under his constitutional executive
powers, issue a lawmaking order directing the secretary of commerce to take
possession of and operate most of the nation’s steel mills?

Holding and Reasoning (Black, J.)

No. The president’s power to issue executive orders must come from either
an act of Congress or the Constitution. Congress expressly rejected the use
of seizure to solve labor disputes as unconstitutional when it considered the
drafting of the Taft-Hartley Act in 1947. Here, the president does not rely on
any statutory authority to seize real property. Because Congress has not
acted to grant seizure powers to the president in labor disputes, the
president’s authority must come from the Constitution. Sawyer admits that
there is no express authority in the Constitution that justifies the president’s
actions, but argues that the president’s power to do so should still be implied
from powers granted to the president in Article II of the Constitution. This
argument is not constitutionally supported, because the link between the
power to make war decisions and the power to seize private property for the
resolution of labor disputes is attenuated. Additionally, the president’s
actions cannot be supported by his general executive powers, because the
Constitution charges the executive with “faithfully executing the laws,” not
making the laws themselves. The decision of the district court is affirmed.

Concurrence (Clark, J.)

11
This case is controlled by the holding in Little v. Barreme (1804), which held
that if Congress has laid down specific procedures to deal with the type of
crisis confronting the president, he must follow those procedures in
responding to that crisis. However, in the absence of such procedures from
Congress, the president’s independent power to act depends on the gravity
of the situation confronting the nation. The president’s actions are
unconstitutional because Congress already has prescribed procedures for use
in this particular situation, and the situation is not so grave as to warrant his
acting without a grant of power from Congress.

Concurrence (Frankfurter, J.)

The president has been given powers to seize production, transportation,

communication, or storage facilities on 16 separate occasions since 1916.
However, the difference between these occurrences and the present case
was that, in all prior instances, Congress granted temporary powers to the
president to act in times of war or national crisis. Additionally, the powers
were only granted for a specific, limited time frame. In the present case, the
president was acting to remedy only an industrial problem that was not
connected with wartime or a national emergency. Additionally, Congress
specifically withheld this type of power from the president, in labor-relations
settings, when it passed the Taft-Hartley Act in 1947. The president acted
unconstitutionally because the facts surrounding the present case are
different from prior instances of presidential grants of power and because
Congress could have given the president power but chose instead to
withhold it.

Concurrence (Douglas, J.)

Congress is the only branch of government that can appropriate money to

pay for a program involving a nationwide seizure of property. Hence,
Congress is the only branch that may authorize such actions. It is important
to keep this power within Congress to avoid the possibility of a future
president abusing the power.

Concurrence (Jackson, J.)

The president and Congress have distinct powers, but the Constitution allows
for some overlap of authority in different scenarios. The president may act
pursuant to executive powers, congressionally granted powers, or a
combination of both. If the president acts under an express or implied grant
of power, he can rely on both his own powers and Congress’s. If the
president acts without an express grant or denial of Congress’s powers, he

12
acts under the aggregate of his own independent powers. If the president
acts in a way that is incompatible with the express or implied will of
Congress, he may rely only on the powers expressly granted to him by the
Constitution. Because Congress denied power to the president in the present
case under the Taft-Hartley Act, the third scenario is implicated. The
president may be deemed to have acted constitutionally only if he is acting
based on an express grant of power from the Constitution. The Constitution
does not grant the president such powers, and the president’s power to
“faithfully execute the laws” does not cross into the function of lawmaking.
The president is checked by the Fifth Amendment’s prohibition on depriving
citizens of life, liberty, or property without due process of law. The president
has clearly deprived steel-mill owners of their property without due process.

Concurrence (Burton, J.)

The Constitution vests authority to deal with this type of national emergency
in Congress. Congress therefore properly outlined the procedures available to
the president to prevent a large-scale strike that could harm the country in
the Taft-Hartley Act. Congress chose not to authorize the president to seize
an industry, retaining that power for itself. The president decided to use an
unauthorized method to deal with the steel-mill labor crisis, but he lacked
the inherent power to make the seizure on his own accord. There was no
“imminent invasion or threatened attack” here, and thus, there is no need to
determine what the president’s constitutional authority would be in that
case. The order cannot be justified as a military command either. Ultimately,
the president usurped Congress’s authority and violated the separation of
powers when he issued the order, and the order is unconstitutional.

Dissent (Vinson, C.J.)

The president acted in a necessary way to prevent a crisis of national

defense that could result from a lack of steel production. The Constitution
delegates to the president the duty to execute legislative programs. The
implementation of a steel-seizure program designed to preserve production
and promote the national defense qualifies as a legislative program. The
president is uniquely qualified to step in and implement this program,
because no other branch of government has the ability to act so quickly by
releasing an executive order. The president’s actions are fully within the
actions given to the executive branch by the Constitution, because the
Framers necessarily made the executive branch a robust one so it could
serve as an actual check and balance to the other branches of government.
The majority’s decision is improperly aimed at straw men because it seeks to

13
prevent the evils of potential future presidents. This scenario is not at issue.
The president is both authorized and uniquely qualified to perform this
function.

U.S v. Curtiss-Wright Export Corp.

Rule of Law

An otherwise unconstitutional delegation of legislative power to the

executive may nevertheless be sustained on the ground that its exclusive
goal is to provide relief in a foreign conflict.

Facts

Congress passed a resolution authorizing the president to stop the sale of

arms to countries involved in the Chaco border dispute. That same day,
President Roosevelt issued an executive order prohibiting munitions sales to
warring countries involved in the dispute. In 1936, an indictment was issued
alleging that Curtiss-Wright Export Co. (Curtiss-Wright) (defendant) illegally
sold arms to Bolivia, a country engaged in the Chaco border dispute. The
transaction was in violation of the congressional resolution and the
president’s executive order. The district court issuing the indictment held for
Curtiss-Wright, ruling that the indictment was not supported by sufficient
information to charge Curtiss-Wright. The United States government
(plaintiff) appealed directly to the United States Supreme Court.

Issue

May an otherwise unconstitutional delegation of legislative power to the

executive nevertheless be sustained on the ground that its exclusive goal is
to provide relief in a foreign conflict?

Holding and Reasoning (Sutherland, J.)

Yes. There are significant differences in the federal government’s power to

regulate internal versus foreign affairs. All powers given to the federal
government over internal affairs are carved out by enumerated provisions in
the Constitution from the powers generally reserved to the states. In
contrast, any powers given to the federal government over foreign affairs are
not carved out from state power because the states never possessed powers
over foreign affairs. The grant of power over foreign affairs vested in the
federal government after it usurped power from the British Crown. The
president is the sole organ of the federal government in the field of

14
international relations. Any exercise of power by the president must be
exercised within the constitutional parameters granted to him, but the scope
of the president’s powers in international affairs is broad. In order to
effectively maintain international relations, congressional legislation
concerning foreign affairs must accord the president a degree of discretion
and freedom from statutory restriction that would not be admissible if
domestic affairs alone were involved. The president’s executive order is
constitutional, and the decision of the district court is reversed.

Boumediene v. Bush

Rule of Law

Courts must provide detainees held as unlawful alien enemy combatants a

writ of habeas corpus to challenge their detention or, if a writ of habeas
corpus is not available, provide an adequate substitute process to detainees
that includes the same procedural protections and opportunities that would
be provided in a writ of habeas corpus.

Facts

In 2005, Congress passed the Detainee Treatment Act to provide certain

procedures for Guantanamo Bay detainees to challenge their classification as
unlawful alien enemy combatants. In 2006, Congress passed the Military
Commissions Act (MCA). Section 7(a) of the MCA prevented detainees
classified as unlawful alien enemy combatants from challenging the
conditions of their confinement and detentions through a writ of habeas
corpus. Boumediene and several other detainees (plaintiffs) classified as
unlawful alien enemy combatants at Guantanamo Bay brought actions
against the United States government (defendant) to challenge their
detentions through writs of habeas corpus. The United States Court of
Appeals for the District of Columbia Circuit upheld the constitutionality of the
MCA. The detainees petitioned for certiorari to the United States Supreme
Court.

Issue

May noncitizen detainees captured abroad and held at the Guantanamo Bay
military facility challenge their detention through a writ of habeas corpus?

Holding and Reasoning (Kennedy, J.)

15
Yes. The Suspension Clause states that the writ of habeas corpus may be
suspended only in cases of rebellion or invasion when public safety requires
it. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court denied the writ
to enemy aliens, captured outside US territory, who were tried and convicted
by a military tribunal for offenses committed outside the United States and
who were at all times imprisoned outside the United States. In light
of Eisentrager, three factors are relevant in determining the scope of the
Suspension Clause with respect to detainees: (1) the citizenship and status of
the detainee and the adequacy of the process that determines the status, (2)
the nature of the sites where apprehension and then detention took place,
and (3) the practical obstacles inherent in resolving the prisoner’s
entitlement to the writ. As to the first factor, Boumediene and the other
detainees, like the Eisentrager petitioners, are not American citizens.
However, unlike the Eisentrager petitioners, the detainees in this case
dispute that they are enemy combatants, and no trial has been conducted to
determine laws-of-war violations. As to the second factor, the Guantanamo
Bay military base is under the complete and total control of the United
States, which, combined with the relatively low burden on the military to hold
them there, justifies fully extending the writ of habeas corpus to the
detainees. As to the third factor, the Eisentrager petitioners were provided
counsel, allowed to introduce their own evidence, and permitted to cross-
examine the prosecution’s witnesses. In contrast, Boumediene and the
other detainees were provided with inadequate procedural protections in
their Combatant Status Review Tribunal (CSRT) hearings. For example, in a
CSRT hearing, the government’s evidence is presumed to be valid. No official
counsel is provided to the detainee, and the detainee is permitted to present
only “reasonably available” evidence. The lack of access to counsel and the
inability to introduce evidence fall short of the adversarial mechanisms
needed to eliminate the need for habeas corpus review. Therefore, MCA § 7 is
unconstitutional. However, this holding does not affect the Detainee
Treatment Act and CSRT process. The president is entitled to a reasonable
period of time to determine a detainee’s status before a court may entertain
that detainee’s habeas corpus petition. Accordingly, the decision of the court
of appeals is reversed.

Concurrence (Souter, J.)

In Rasul v. Bush, 542 U.S. 466 (2004), the Court held that statutory claims of
habeas corpus jurisdiction extend to foreign nationals imprisoned by the
United States at Guantanamo Bay. Later, Congress eliminated the statutory
right to bring a writ of habeas corpus. Although the writ is no longer allowed

16
by statute, the Court is not required to disallow the right of foreign nationals
to bring a writ of habeas corpus under the Constitution. Many detainees have
been held without formal charges for up to six years. The detainees deserve
a procedure to challenge their confinement in light of the relatively long
length of their detentions.

Dissent (Scalia, J.)

The writ of habeas corpus has never been applied to foreign persons
detained outside the jurisdiction of the United States. Thus, the Suspension
Clause of the Constitution does not apply to Guantanamo Bay detainees, and
the detainees are not entitled to the same legal protections afforded to
United States citizens. The security of the United States will be ultimately
weakened by the increase of releases of detainees to their home countries,
where many historically have returned to terrorist activities. The legislative
and executive branches have unequivocally stated their opposition to
extending the writ of habeas corpus to detainees. The judiciary oversteps its
bounds in making a ruling that goes against the will of the other branches of
government and exposes the United States to a security threat.

Dissent (Roberts, C.J.)

Invalidating § 7 of the MCA eliminates the most generous set of procedural

protections ever afforded to foreign citizens. Additionally, the set of vague
procedures in place of the MCA provides little direction to federal courts
tasked with adjudicating the claims of detainees. The CSRT hearings afforded
to detainees are not part of the initial process used to classify detainees as
unlawful alien enemy combatants but are instead procedures for detainees
to challenge their classification. CSRT hearings provide the same procedural
protections as a writ of habeas corpus. Thus, a writ of habeas corpus for
detainees is unnecessary.

Trump v. U.S

Rule of Law

(1) A former president has absolute immunity from criminal prosecution for
official acts within the president’s exclusive constitutional authority. (2) A
former president has at least presumptive immunity for all other official acts.

Facts

17
In 2023, a federal grand jury indicted former president Donald Trump
(defendant) on criminal counts stemming from conduct while in office. The
indictment alleged that after losing the November 2020 election, Trump
conspired to overturn the result by making knowingly false claims of election
fraud. Specifically, the indictment alleged that: (1) Trump had discussions
with the Justice Department encouraging sham election-crime investigations
and alerts of suspected fraud to convince states to replace legitimate
electors; (2) Trump tried to convince the vice president to use his ceremonial
role at the January 6 certification proceeding to reject legitimate electoral
votes; (3) in interactions with various state officials, private parties, and the
broader public, Trump attempted to convince them that election fraud had
tainted the vote; and (4) in tweets and a speech, Trump encouraged
supporters to go to the Capitol Building to put pressure on the vice president
during the certification proceeding. Trump moved to dismiss the indictment,
arguing that a former president has absolute immunity from criminal
prosecution for official acts taken in office. The district court denied the
motion, holding that presidents do not have absolute immunity. The court of
appeals affirmed, and the United States Supreme Court granted certiorari.

Issue

(1) Does a former president have absolute immunity from criminal

prosecution for official acts within the president’s exclusive constitutional
authority? (2) Does a former president have at least presumptive immunity
for all other official acts?

Holding and Reasoning (Roberts, C.J.)

(1) Yes. A former president has absolute immunity from criminal prosecution
for official acts within the president’s exclusive constitutional authority. A
president’s authority to act must come from the Constitution or an act of
Congress. The president’s constitutional authority and duties are unrivaled in
scope, and some constitutional authority is vested exclusively in the
president. That authority is conclusive and preclusive. Consequently,
Congress cannot criminalize acts within the president’s exclusive
constitutional authority, and courts cannot hear a criminal prosecution
reviewing such acts. The president therefore has absolute immunity from
criminal prosecution for official acts taken under the president’s exclusive
authority. (2) Yes. A former president has at least presumptive immunity for
all other official acts. Some official acts are based on statutory authority
granted by Congress or on constitutional authority shared with Congress.
Because the president has policy and supervisory responsibilities requiring

18
utmost discretion and sensitivity, it is important that the president be able to
act quickly, boldly, and decisively. Acknowledging that a fear of damages
liability would hinder such decision-making, courts have determined that the
separation of powers requires that presidents be absolutely immune from
civil damages for official acts. Also, regarding requests for evidence of
presidential communications, courts apply presumptive immunity because
open communication is key to the presidential office. Potential criminal
prosecution, like civil damages, would hinder quick, bold, and decisive
decision-making. It poses a greater threat than requests for presidential
communications. Consequently, at a minimum, a president must have
presumptive immunity from criminal prosecution for all official acts and
cannot be prosecuted unless the government shows that prosecution poses
no threat to performance of presidential duties. There is no immunity for
unofficial acts, meaning acts outside a president’s constitutional or statutory
authority. Here, Trump’s alleged discussions with the Justice Department fall
under the president’s exclusive constitutional authority to ensure that federal
laws are faithfully executed. Consequently, they were official acts, and Trump
has absolute immunity. Trump’s alleged discussions with the vice president
do not fall under any exclusive authority but nevertheless constitute official
acts because they concerned official responsibilities. Trump is therefore
entitled to presumptive immunity. Remand is necessary to determine
whether the government can rebut the presumption. Trump’s alleged
interactions with state officials, private parties, and the broader public might
constitute efforts to ensure the integrity of a federal election, an official act
within the president’s exclusive authority to ensure the laws’ faithful
execution. Alternatively, they might constitute a private scheme to advance
personal interests, making them unofficial acts without immunity. Remand is
necessary for classification. Finally, Trump’s tweets and speech related to the
January 6 certification proceeding might fall under the president’s broad
authority to speak to citizens regarding the public interest. Alternatively,
they might constitute speech concerning personal affairs, making them
unofficial acts. Remand is necessary for classification. The court of appeals’
judgment is vacated and the case remanded.

Concurrence (Barrett, J.)

The president is entitled to immunity from criminal prosecution for official

acts within the president’s exclusive constitutional authority. For all other
official acts, the president is not entitled to absolute immunity. Instead, a
two-step process should apply to determine whether prosecution is
constitutionally permissible. First, a court should determine whether the

19
official act falls within the scope of conduct prohibited by the relevant
criminal statute. Second, if the act falls within the criminal statute, then
prosecution should be permitted if applying the criminal statute poses no
danger to the proper functioning of the executive branch. The president is
entitled to an interlocutory appeal to determine the accuracy of a district
court’s application of the two-part test.

Concurrence (Thomas, J.)

In addition to Trump’s prosecution potentially running afoul of presidential

immunity, there is a second way in which Trump’s prosecution perhaps
violates the Constitution. The attorney general appointed a private citizen as
special counsel to prosecute Trump. The Constitution’s Appointments Clause
states that the usual manner for appointing officers of the United States is
nomination by the president and confirmation by the Senate. Congress may
authorize courts, heads of department, or the president alone to appoint
inferior officers. However, the underlying office must first be established by
Congress via federal statute. The attorney general has not identified any
statute creating an office for the special-counsel position, nor has he
identified a statute authorizing him to appoint officers.

Dissent (Jackson, J.)

Giving a president immunity from criminal prosecution essentially says that

the president is not subject to criminal laws and need not comply with them.
That concept is contrary to the fundamental principle in the United States
that everyone is accountable to the law. The principle is key to democracy
and liberty because it prevents rule by force.

Dissent (Sotomayor, J.)

The majority’s conclusion that a former president is entitled to at least

presumptive immunity, and perhaps absolute immunity, for all official acts is
not grounded in the Constitution, history, or judicial precedent. The
Constitution’s text does not give former presidents immunity from criminal
prosecution for official acts taken while in office. Further, evidence suggests
that the Founding Fathers did not intend for the president to be above
criminal laws. Additionally, presidents and the Justice Department have
historically understood the president to be subject to criminal prosecution,
even for official acts. For example, President Ford’s pardoning of Nixon after
Watergate, and Nixon’s acceptance of the pardon, shows that both
presidents understood Nixon to be subject to criminal liability for his misuse
of official power to interfere with federal investigations.

20
21