2nd Circuit Judge Weighs in on Presidential War Powers

BY PAUL MEZZINA

Judge Richard C. Wesley of the U.S. Court of Appeals for the Second Circuit addressed students on Tuesday. In a speech sponsored by the Harvard Federalist Society, the judge discussed presidential war powers in the context of the war on terror.

Judge Wesley has first-hand experience dealing with these issues in court. In 2003, he was a member of the three-judge panel that decided Padilla v. Rumsfeld, a case that presented the question of whether a U.S. citizen seized on American soil outside a zone of combat could be detained as an enemy combatant. That panel ordered Secretary of Defense Donald Rumsfeld to release Padilla from military custody and turn him over to civilian authorities. Judge Wesley dissented, arguing that Padilla’s detention was supported by both Congressional authorization and the inherent authority of the President. (The Supreme Court ultimately vacated the ruling because Padilla’s habeas petition had been filed in the wrong jurisdiction.)

Judge Wesley began his talk by discussing the history of war-powers jurisprudence, which he called a “Dark Continent” in American constitutional law. He explained that the Articles of Confederation had impeded national defense by fracturing military authority among the states, and that the Founders sought to rectify this by making the President Commander in Chief of the armed forces. Article II is silent on the specific powers associated with that role-a “purposeful ambiguity,” according to Wesley, designed to avoid placing limits on the President’s power to defend the country in times of crisis.

While there are “few, if any, constitutional limits” to the President’s authority to respond to immediate threats, Judge Wesley argued that Congress has a vital role to play in governing ongoing conflicts. He urged Congress to clarify the “legal framework” of the war on terror. Doing so, he said, would provide the courts with guidance and help them avoid wading into “difficult and, on occasion, nonjusticiable issues” such as inherent presidential power. Congressional action would also bring a healthy dose of political accountability to the war on terror, eliminating the “perception of unilateral executive action.”

Judge Wesley maintained that the Authorization for Use of Military Force, passed by Congress shortly after September 11, 2001, should be construed as recognizing a “warlike state” between the United States and al-Qaeda, and thus impliedly authorizing the President to exercise powers incidental to war. But, he said, Congress should go further and define the process to which detainees like Padilla are entitled. Such matters “are better viewed as political questions and not legal ones”; they should be resolved by the people’s representatives rather than by judges.

Judge Wesley seemed to approve of the resolution of Padilla’s case. Earlier this month, the Supreme Court refused to hear Padilla’s most recent appeal after the government voluntarily transferred him to civilian custody. Judge Wesley said that the lesson to be drawn from this case is that a President who detains American citizens as enemy combatants in the absence of an explicit statutory framework will always be operating at the “outer limits” of his constitutional authority. The administration, he opined, made a wise decision in choosing not to test those limits before the Supreme Court. Whether Congress will head off future tests by more clearly defining the President’s powers in the war on terror remains to be seen.

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