Abstract
The cases discussed have one dimension in common: they all rebuked the President in one way or the other; the issue in each had foreign policy as its origin; and each case also had implications for the foreign affairs of the USA. The Youngstown case was of tremendous significance. It did not overturn the ruling of Curtiss-Wright, but it rejected that decision’s vision of unrestrained executive discretion and action. That in itself was a devastating rebuke to President Truman’s overreach in the midst of the Korean War.
The three death penalty cases came at some cost to the USA’s international standing and brought the USA into conflict with the ICJ. The rebuke that the President suffered in each of these cases undercut the USA’s standing in foreign affairs.
The cluster of Detainee Cases was brought on by the war on terror after 9/11. They became hallmark decisions in defining the contours of the President’s powers in vital aspects of US foreign and national security policy. Each was also relevant for its human rights implications. The issue of the prison at Guantánamo Bay featured prominently in these cases. Ultimately the Court made it abundantly clear to the President that he did not have the authority to act as a law unto himself. He was reprimanded in stern terms: a state of war is not a blank check [cheque] for the President when it comes to the rights of individuals. The signs of judicial mistrust in the executive began to emerge with these four cases.
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Notes
- 1.
Cabranes 2015, p. 126.
- 2.
Breyer 2015, p. 15.
- 3.
Adler 2002, p. 212, footnote 251.
- 4.
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952).
- 5.
Zivotofsky v. Clinton. Oral Arguments 2018 (Justice Scalia ). This case is dealt with in more detail in Part II, Chap. 6, Sect. 6.1.2.2.
- 6.
J O’Connor in Hamdi v. Rumsfeld 542 U.S. 507 (2004), at 536. See Sect. 4.4.4 infra.
- 7.
See Part II, Chap. 3, Sect. 3.8.7.2.
- 8.
- 9.
Baak 2003, p. 1487.
- 10.
Medellín v. Texas 552 U.S. 491 (2008).
- 11.
Humberto Leal Garcia v. Texas 564 U.S. 940 (2011).
- 12.
Breard v. Greene 523 U.S. 371 (1998).
- 13.
Rasul v. Bush 542 U.S. 466 (2004).
- 14.
Hamdi 2004.
- 15.
Hamdan v. Rumsfeld 548 U.S. 557 (2006).
- 16.
Boumediene v. Bush 553 U.S. 723 (2008).
- 17.
Breyer 2015, p. 87.
- 18.
Schroeder, Bradley 2009, p. 20.
- 19.
- 20.
Ex Parte Milligan 71 U.S. (4 Wall.) 2 (1866).
- 21.
Youngstown 1952.
- 22.
Ex Parte Milligan, 1866, at 120–121.
- 23.
Bellia 2009, p. 233.
- 24.
Jentleson 2014, p. 44.
- 25.
Ibid.
- 26.
President Harry Truman’s seizure of the nation’s strikebound steel mills on 8 April 1952 stands as one of his most controversial actions domestically. (It pales, however, when mentioned in the same breath with his decision to drop two atomic bombs on Japan in August 1945.) His steel seizure decision represents an unprecedented use of presidential power. On 8 June 1952, SCOTUS invalidated President Truman’s order with its monumental decision. The history and significance of this case constitute the subject of Marcus’s meticulously researched, thoroughly analysed, and authoritative study. She pays special attention to the influence of the case on the doctrine of separation of powers and, specifically, the nature and practice of executive authority. Marcus 1994.
- 27.
Rehnquist 1987, p. 95.
- 28.
President Truman claimed authority for his actions under his own inherent powers—inherent emergency authority—and authority as Commander-in-Chief.
- 29.
- 30.
Franck 1991, p. 75.
- 31.
Youngstown 1952, at 585.
- 32.
Ibid., at 587.
- 33.
Ibid.
- 34.
Ibid., at 588.
- 35.
Ibid., at 589.
- 36.
Ibid., at 597.
- 37.
Ibid., at 600.
- 38.
Little v. Barreme 6 U.S. 177 (1804).
- 39.
Youngstown 1952, at 662.
- 40.
Ibid., at 629. Twenty years later he still basically held the same view:
The spectre of executive war-making is an ominous threat to our republican institutions.
McArthur v. Clifford 393 U.S. 1002 (1968).
- 41.
He was the Solicitor General of the USA in United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936). See Part II, Chap. 3, Sect. 3.8.7.2.
- 42.
Youngstown 1952, at 640.
- 43.
Ibid., at 659. In Holtzman v. Schlesinger 414 U.S. 1304 (1973), at 1311 SCOTUS concluded that
… as a matter of substantive constitutional law, it seems likely that the President may not wage war without some form of congressional approval.
- 44.
Youngstown 1952, at 643 and 646.
- 45.
Ibid., at 637.
- 46.
Ibid., at 635–638.
- 47.
Ibid., at 635.
- 48.
Ibid., at 637.
- 49.
Ibid. Fletcher explained this tier to mean that in such an instance the President depends on his own constitutional powers, excluding whatever constitutional authority Congress could have over the issue. Then the Court could uphold an executive’s action only by finding that Congress could not act in the situation. Fletcher 2013, p. 271.
- 50.
Ibid., p. 267.
- 51.
Ibid., p, 283.
- 52.
CJ Rehnquist made this remark about “the famous Steel Seizure Case”:
I am sure the case simply represents one of several important judicial milestones defining the limits of the power of a President of the United States to act on his own, without congressional authorization.
Rehnquist 1986, p. 752.
- 53.
Adler 2002, p. 160.
- 54.
Ibid., p. 162.
- 55.
Dellapenna 2008, p. 12.
- 56.
The UNSC authorised the formation and dispatch of UN forces to Korea to repel what was recognised as a North Korean invasion. Twenty-one Member States of the UN eventually contributed to the UN force, with the USA providing around 90% of the military personnel.
- 57.
Adler 2002, p. 212.
- 58.
- 59.
Dellapenna 2008, p. 25.
- 60.
See Part II, Chap. 3, Sect. 3.3.
- 61.
On 3 June 1952, an editorial opined that the decision was “a redefinition of the powers of the President” that “deliberately checked” the “trend towards indefinite expansion of the Chief Executive’s authority” and “minimize[d] the implied powers of the Presidency”.
- 62.
The caption of the editorial on 3 June 1952 was simply: “Truman Gets His Severest Rebuff”. It continues to point out that the President has no “inherent powers” that enable him to make decisions “to suit himself either in an emergency or at any other time”.
- 63.
Schubert 1953, pp. 61–77.
- 64.
Ibid., pp. 64–65.
- 65.
Ibid., p. 77.
- 66.
An interesting anecdote is that the young law clerk of J Jackson when he delivered his by now famous concurring opinion in Youngstown was none other than William Rehnquist who later first served as a Justice from 1972 to 1986 and then as Chief Justice from 1986 until his death in 2005. In delivering the Court’s opinion in Dames & Moore v. Regan 453 U.S. 654 (1981), he had high praise for J Jackson’s opinion.
- 67.
- 68.
Ibid., p. xii.
- 69.
- 70.
During his Senate confirmation hearing in October 2018 (now Justice) Brett Kavanaugh credited the Youngstown decision as one of the four most important rulings ever to have been handed down by SCOTUS.
- 71.
Bellia 2002, p. 1.
- 72.
She draws attention to the fact that although it is not in itself a paradigmatic foreign affairs case, Youngstown is thought to bear on separation of powers questions touching on foreign affairs in a number of ways. Ibid., p. 2.
- 73.
Ibid., p. 4.
- 74.
Ibid., p. 20.
- 75.
Clinton v . Jones 520 U.S. 681 (1997).
- 76.
Ibid., at 703.
- 77.
Bellia 2002, pp. 13–30.
- 78.
Ibid., p. 14.
- 79.
Ibid., p. 15.
- 80.
Ibid., p. I7.
- 81.
The cases of Kent v. Dulles 57 U.S. 116 (1958); Zemel v. Rusk 381 U.S. 1 (1965); and Haig v. Agee 453 U.S. 280 (1981).
- 82.
Bellia 2002, pp. 17–19.
- 83.
Ibid., pp 19–23.
- 84.
Ibid., pp. 23–25.
- 85.
Dames 1981.
- 86.
Bellia 2002, p. 27
- 87.
Ibid., p. 30.
- 88.
Bellia 2009, p. 285.
- 89.
Adler 2002, pp. 155–157.
- 90.
Fletcher 2013, pp. 247–284.
- 91.
Ibid., p. 247.
- 92.
Ibid., p. 284.
- 93.
Ibid., p. 249.
- 94.
Breard 1998.
- 95.
Medellín 2008.
- 96.
Garcia 2011.
- 97.
Only in 1996 Paraguayan consular officials learned of Breard’s fate and raised the issue of their non-notification with the US Department of State. In July 1997, the State Department acknowledged that the failure to notify the consular officials was a violation of the Vienna Convention on Consular Relations (VCCR) of 1963 and apologised for that omission. The apology did not satisfy the Paraguayan authorities, however, and they brought the issue to the ICJ. Murphy 2007–2008, p. 253.
- 98.
Known as the LaGrande decision, the ICJ ruled that the VCCR granted rights to individuals on the basis of its plain meaning and that domestic laws could not limit the rights of the accused under the said Convention. This case was based on the case resulting in the execution of Breard . Germany v. United States of 27 June 2001. (General List No. 104).
- 99.
- 100.
Breard 1998, at 378.
- 101.
- 102.
Article 36(1)(b) of the VCCR 1963, p. 261.
- 103.
The Convention was ratified by and entered into force for the USA on 24 November 1969.
- 104.
As quoted by Bryer 2015, p. 211. On pp. 210–218 he provides useful detail and an in-depth perspective of this case, which he classified as one with broad ramifications for the status of international law in the judiciary of the USA. Mexico v. United States (General List No. 128) involved Avena and the other Mexican nationals. The ICJ delivered its judgment on 31 March 2004.
- 105.
Memorandum 2005.
- 106.
- 107.
Feldman 2008b.
- 108.
Although the Senate approved the Convention for ratification in 1969, Congress as such, meaning the House of Representatives and Senate, did not a pass a dedicated law, which required both to approve of the legislation and which the President could sign.
- 109.
- 110.
Medellín 2008, at 1348.
- 111.
Ibid.
- 112.
- 113.
Ibid., p. 86. His spokesperson remarked: “The world court has no standing in Texas”. Ibid., p. 103.
- 114.
Ibid., p. 88.
- 115.
This case is dealt with in Sect. 4.4.6 infra.
- 116.
Garcia 2011. Stay of Execution.
- 117.
Garcia 2011. Brief, at 11–12.
- 118.
Ibid., at 26.
- 119.
Ibid., at 27.
- 120.
Ibid., at 28.
- 121.
Ibid., at 30.
- 122.
Ibid.
- 123.
Garcia 2011, at 942.
- 124.
See Sect. 4.3.3 supra.
- 125.
Garcia 2011, at 942.
- 126.
Ibid., at 949.
- 127.
Gamble and Giuliano 2009, p. 163.
- 128.
Telman 2009, p. 429.
- 129.
Garcia 2011. Brief, at 13.
- 130.
Karnes 2013, p. 377.
- 131.
Cohen 2011.
- 132.
SCOTUS is particularly cognisant of separation-of-powers concerns—most notably the appropriate role of the executive, arising in
… [m]atters relating to the conduct of foreign relations.
Regan v. Wald 468 U.S. 222 (1984), at 242.
- 133.
Harriger 2011, p. 202.
- 134.
Breyer 2018.
- 135.
Breyer 2015, p. 78.
- 136.
Rasul 2004. Brief.
- 137.
See Sect. 4.4.2 infra for background on this detention facility.
- 138.
Rasul 2004.
- 139.
Hamdi 2004.
- 140.
Hamdan 2006.
- 141.
Rasul 2004.
- 142.
Hamdan 2006.
- 143.
Hamdi 2004.
- 144.
Boumediene 2008.
- 145.
- 146.
Harriger 2011, p. 202.
- 147.
The prison was opened in January 2002—four months after the events of 9/11. At one time 780 detainees were kept at Guantánamo. Conditions at Guantánamo became a worldwide symbol of abuse and arbitrary procedures. Worthington 2007 produced a carefully researched and documented account of the origin of and the horrific practices employed at the prison.
- 148.
Two days after his first inauguration in January 2009, President Obama issued an executive order calling for a review of the 240 detainees then held, and closure of the prison within a year. A host of reasons forced him to keep it open. Congress continued to adopt restrictive legislation. Members of his own party opposed his plan to relocate inmates to facilities in the USA. The executive blamed Congress for making it difficult to close Guantánamo. Yet, Obama failed to keep Congress informed. He ignored statutory limitations. Throughout he faced a recalcitrant Congress. In addition, the executive kept on advancing inconsistent legal arguments. It, inter alia, asserted that the President had plenary, exclusive, and inherent powers in foreign affairs that could not be restricted by Congress. His unilateral action was the type that backfired repeatedly on President George W. Bush. By signing the executive order so soon after taking office, he displayed “an extraordinary lack of political judgment” according to Fisher who also questioned Obama’s inability to follow the principles he had advocated while he was still a Senator. Fisher 2017, pp. 280 and 283–287.
The Obama administration just lapsed into paralysis on this issue. He continued to utter his verbal commitment to closing Guantánamo. That was where it ended. He was not prepared, in fact was simply unwilling to exercise the powers of the presidency to prevent his policy’s frustration. That left him and his administration mired in the constraints of law, politics, diplomacy, and the president’s own rhetoric. De Luce 2015.
The review process revealed how complicated it was to close the facility. It was not always clear where to put those who could not be released—those who would be tried as war criminals, those considered too dangerous to release but too difficult to prosecute, as well as individuals in more ambiguous categories. It was up to the US State Department to find countries willing to take the men the USA would not, especially those classified as “the worst of the worst”. Some no country wanted. Even some cleared for release were stuck in prison as they could not return home. For example, there were dozens of Yemenis who could not return to their country, which was descending further and further into a bitter civil war.
In December 2018, the Trump administration still kept 40 inmates at Guantánamo. Their futures remain as uncertain as ever. Efforts to advocate for their release, for the closure of the prison and for an end to the era of indefinite detention are unceasing. This administration does not seem to have the intent of closing it down—on the contrary, the number of inmates may very well increase. Congressional inaction may induce an even bigger problem, and the Trump administration may still bring future detainees to Guantánamo.
- 149.
In the opinion delivered by J Stevens he provides a list of early English cases. Rasul 2004, at 482, footnote 13.
- 150.
Power to grant writ. 28 U.S. Code § 2241.
- 151.
Breyer 2015, p. 69.
- 152.
Feldman 2008a.
- 153.
Boumediene 2008, at 727.
- 154.
Rasul 2004. Brief, at Section III.
- 155.
Suffice it to draw attention to the following:
• … any such application would raise serious constitutional concerns in cases, such as this one, that challenge the Executive’s conduct of foreign affairs. Ibid., at 28.
• … military installations abroad are … vital to the conduct of the United States’ foreign affairs abroad. Ibid., at 31.
• Congress, moreover, is far better situated than the courts to weigh the significant foreign policy and military ramifications of extending federal jurisdiction over the claims of aliens held abroad and to address the myriad factors that might enter the equation”. Ibid., at 45–46.
- 156.
In this regard, special reference is made to the diplomatic encounters with Australian and British Ministers of Foreign Affairs about their citizens being amongst the detainees. Ibid., at 47–50.
- 157.
Ibid., at 49.
- 158.
Ibid., at 49–50.
- 159.
Given the fact that Hamdi was once considered too dangerous to be granted access to legal counsel, Lauer finds it especially troubling that the executive did not provide some explanation why he was so suddenly released and transferred to another country. Lauer 2006, p. 951.
- 160.
Anderson 2005, pp. 699–700.
- 161.
Green 2005, p. 581.
- 162.
Hamdi 2004, at 536. Emphasis added.
- 163.
- 164.
Hamdi 2004, at 536.
- 165.
Ibid.
- 166.
Hamdi 2004, at 536 – no blank check [cheque] for the President. J O’Connor expands on this: the judiciary “plays a necessary role in maintaining this delicate balance of governance” and to strike “the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat’’. Ibid., at 536 and 532.
- 167.
The Washington Post 2004.
- 168.
Prize Cases 67 U.S. 635 (1863). See also Part II, Chap. 3, Sect. 3.7.2. The Court addressed the issue of whether the President could impose a blockade in the absence of a formal declaration of war. It overwhelmingly found the President had such power. Finding a duty to defend the country, the Court stated that “the President is not only authorized but bound to resist force by force”. Green 2005, p. 668.
- 169.
In the so-called Pentagon Papers case opinions tilted toward independent presidential authority. Fisher 2017, p. 170. Suffice it to quote this remark by J Marshall:
… it is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander-in-Chief .
New York Times Co. v. United States 403 U.S. 713 (1971), at 741.
- 170.
Mahler 2008.
- 171.
- 172.
Hamdan 2006. Brief.
- 173.
- 174.
Johnsen 2009, p. 463.
- 175.
Ibid., p. 471.
- 176.
Geneva Convention 1949.
- 177.
Hamdan 2006, at 2789.
- 178.
Fisher 2017, p. 254.
- 179.
Johnsen 2009, p. 481.
- 180.
Ibid.
- 181.
Hamdan 2006, at 2799.
- 182.
Bush 2010, p. 178.
- 183.
Johnsen 2009, p. 483.
- 184.
Ibid., p. 484.
- 185.
Ku, Yoo 2006, p. 225.
- 186.
Ibid., p. 204. They stressed that none of their analysis suggested that the executive could not make mistakes or poor judgments in the interpretations of laws relating to foreign affairs. For them it was more a question of whether the executive will make more mistakes or poorer judgments and whether it was less costly to correct its mistakes. Both institutions can make mistakes, but their analysis suggests courts are more likely to make mistakes and that the costs of reversing those mistakes will be substantial.
- 187.
Ibid., p. 217.
- 188.
Ibid., p. 221.
- 189.
Ibid., p. 224.
- 190.
Scribner 2009, p. 114.
- 191.
Boumediene 2008, at 755.
- 192.
Ibid., at 765 and quoting from Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).
- 193.
Fletcher 2013, p. 280.
- 194.
Boumediene 2008, at 727.
- 195.
In the wake of the Boumediene ruling, the executive wanted to preserve the right to abduct people from around the world and detain them without having to provide them any due process. So, instead of bringing them to a “Guantánamo” prison camp (where, the Court ruled, they were entitled to habeas hearings and the prison “located” within USA territorial responsibilities), the Bush administration simply sent them to an American prison camp in Bagram, Afghanistan. Worthington 2007, pp. 170–191.
It was then argued that because they were flown to Bagram rather than to Guantánamo they had no rights of any kind and the Boumediene ruling did not apply to them. The Bush administration treated the Boumediene ruling, grounded in the most basic American constitutional guarantees, as though it was some sort of a game. Fly abducted prisoners to Guantánamo and they have constitutional rights. Fly them instead to Bagram. There no judicial process would be applicable to them. All constitutional obligations would disappear. However, with the escalating war in Afghanistan, the Bagram prison played a more visible and important role in that conflict. Some of the same lawyers and human rights activists who fought successfully in bringing judicial oversight to Guantánamo pushed for similar oversight at Bagram. It was a development accurately predicted by J Scalia when he wrote the following in his dissenting opinion in Rasul v. Bush:
From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.
Rasul 2004, at 499.
- 196.
The New York Times 2008.
- 197.
Yoo 2008.
- 198.
Katyal 2008, p. 2.
- 199.
Rogers 2006.
- 200.
Katyal 2008, p. 10.
- 201.
Dell’Orto 2008, p 8.
- 202.
Swaine 2010, pp. 263–340.
- 203.
In 2008, the USA was still struggling to improve its international credibility after its invasion of Iraq in March 2003, which later caused such condemnation at home and abroad.
- 204.
Bederman 2008, pp. 538 and 539.
- 205.
Breyer 2015, p. 218.
- 206.
Fallon 2010, p. 392.
- 207.
Breyer 2015, p. 78.
- 208.
Martinez 2004, p. 787.
- 209.
Johnsen 2009, p. 448.
- 210.
Scribner 2009, p. 145.
- 211.
Ford 2010, pp. 397 and 412.
- 212.
Ibid., p. 416.
- 213.
Cleveland 2012, p. 1256.
- 214.
- 215.
Kavanaugh 2012, p. 1267. Emphasis in original.
- 216.
Garrison 2006, p. 230.
- 217.
Breyer 2018.
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SCOTUS Briefs
Hamdan v. Rumsfeld. Brief for the Respondents in Document No. 05-184, February 2006.
Humberto Leal Garcia v. Texas. Brief for the United States in support of Applications for a Stay. Nos. 11A1, 11A2. July 2011.
Rasul v. Bush. Brief of the USA for the Respondents, Nos. 03-334, 03-343, 2004 WL 425739 (U.S.), 3 March 2004.
Rasul v. Bush. Petitioners’ Reply Brief No. 03-334 in Document 2004 WL 782376 (U.S.), 7 April 2004.
SCOTUS Cases
Boumediene v. Bush 553 U.S. 723 (2008).
Breard v. Greene 523 U.S. 371 (1998).
Clinton v. Jones 520 U.S. 681 (1997).
Dames & Moore v. Regan 453 U.S. 654 (1981).
Ex Parte Milligan 71 U.S. (4 Wall.) 2 (1866).
Haig v. Agee 453 U.S. 280 (1981).
Hamdan v. Rumsfeld 548 U.S. 557 (2006).
Hamdi v. Rumsfeld 542 U.S. 507 (2004).
Holtzman v. Schlesinger 414 U.S. 1304 (1973).
Humberto Leal Garcia v. Texas 564 U.S. 940 (2011).
Kent v. Dulles 357 U.S. 116 (1958).
Little v. Barreme 6 U.S. 177 (1804).
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).
McArthur v. Clifford 393 U.S. 1002 (1968).
Medellín v. Texas 552 U.S. 491 (2008) cite as 128 S. Ct. 1346 (2008).
New York Times Co. v. United States 403 U.S. 713 (1971).
Prizes Cases 67 U.S. 635 (1863).
Rasul v. Bush 542 U.S. 466 (2004).
Regan v. Wald 468 U.S. 222 (1984).
United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936).
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952).
Zemel v. Rusk 381 U.S. 1 (1965).
SCOTUS Oral Arguments
Zivotofsky v. Clinton. Justice Scalia cited in WL 7005874 (U.S.). No. 10-699, 7 November 2011.
SCOTUS Orders
Humberto Leal Garcia v. Texas 564 U.S. 940 (2011). Nos. 11-5001 (11A1), 11-5002 (11A2) and 11-5081 (11A21). Stay of Execution.
Federal Statute
Power to grant writ. 28 U.S. Code § 2241.
International Court of Justice Cases
Germany v. United States, 27 June 2001. (General List No. 104).
Mexico v. United States, 31 March 2004 (General List No. 128).
Newspapers
The Los Angeles Times, 3 June 1952.
The New York Times, 3 June 1952 and 13 June 2008.
The Washington Post, 29 June 2004.
Other Documents
Dell’Orto DJ (2008) Statement on the Implications of the Supreme Court’s Boumediene v. Bush Decision for Detainees at Guantanamo Bay. Hearing—Before the House Armed Services Committee, H.A.S.C. No. 110-167, 110th Congress, 2nd Session, 31 July 2008, pp. 1–10.
Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949.
Katyal N (2008) Statement on the Implications of the Supreme Court’s Boumediene v. Bush Decision for Detainees at Guantanamo Bay” Hearing—Before the House Armed Services Committee, H.A.S.C. No. 110-167, 110th Congress, 2nd Session, 30 July 2008, pp. 1–17.
Letter from William D. Rogers to Members of Congress on 25 September 2006.
Memorandum from George W. Bush, President, United States, to U.S. Attorney-General on 28 February 2005. Available at http://www.whitehouse.gov/news/releases/2005/02/20050228-18.html.
Vienna Convention on Consular Relations, United Nations, Treaty Series, Vol. 596.
Further Reading
Abebe D (2007) Not Just Doctrine: The True Motivation for Federal Incorporation and International Human Rights Litigation. Michigan Journal of International Law, Vol. 29, pp. 1–48.
Alexander JC (2012) John Yoo’s War Powers: The Law Review and the World. California Law Review, Vol. 100, No. 2, pp. 331–364.
Anderson K (2006) Law and Terror. Policy Review, Vol. 139, pp. 3–24.
Bigel AI (1986) The Supreme Court on Emergency Powers, Foreign Affairs, and Protection of Civil Liberties, 1935–1975. University Press of America, Lanham, Maryland.
Friedman B (2005) The Politics of Judicial Review. Texas Law Review, Vol. 84, No. 2, pp. 257–337.
Garrison J (2004) America as Empire: Global Leader or Rogue Power? Berrett-Koehler Publishers, Inc., San Francisco.
Gerson A (2013) The Act of State Doctrine in Recent ‘Looted’ Art Litigation. In: Moore JN (ed) (2013) Foreign Affairs Litigation in United States Courts. Koninklijke Brill NV, The Netherlands, pp. 117–125.
Glennon MJ (2015) The Supreme Court Deals a Blow to Executive Authority. Foreign Affairs, (Snapshot), 23 June 2015.
Hathaway OA (2009) Presidential Power over International Law: Restoring the Balance. The Yale Law Journal, Vol. 119, No. 2, pp. 140–269.
Lamont N (2017) Foreign policy and opportunistic lawsuits. The Washington Times, 8 October 2017.
Langran RW (2009) The United States Supreme Court: An Historical and Political Analysis, 7th edn. Custom Publishing, New York.
Mahler J (2008) The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power. Farrar, Straus and Giroux, New York.
Stephan PB (2017) Inferences of Judicial Lawmaking Power and the Law of Nations. Virginia Public Law and Legal Theory Research Paper No. 2017-63.
Treanor WM (2006) The War Powers Outside the Courts. Indiana Law Journal, Vol. 81, No. 4, Fall 2006, pp. 1333–1344.
Westin AF (1958) The Anatomy of a Constitutional Law Case: Youngstown Sheet and Tube Co. v. Sawyer; the Steel Seizure Decision. Macmillan, New York.
Wuerth I (2009) Medellin: The new, new Formalism? Lewis & Clark Law Review, Vol. 13, pp. 1–9.
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Eksteen, R. (2019). SCOTUS (Segment B). In: The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-295-8_4
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