In 1953, Justice Robert Jackson offered this judgment about the Supreme Court: “we are not final because we are infallible, but we are infallible only because we are final.”1 Perhaps cleverly written, but the Court has never been infallible or final. It makes errors, as Jackson knew. Chief Justice William Rehnquist put the matter bluntly in 1993: “it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”2 Consider three Supreme Court opinions that greatly expanded presidential power in external affairs. On two occasions, after more than seven decades, the Court admitted it had erred. A third decision also needed to be overturned.
In United States v. Curtiss-Wright (1936), Justice George Sutherland departed from the core issue before the Supreme Court: could Congress delegate to the president certain powers in the field of external affairs? Congress had authorized the president to prohibit the sale of arms to a region in South America whenever he found “it may contribute to the reestablishment of peace” between belligerents. The issue was legislative, not executive, power. When President Franklin D. Roosevelt imposed the embargo he relied exclusively on statutory authority, acting “by virtue of the authority conferred in me by the said joint resolution of Congress.”3
Sutherland upheld the delegation of legislative power but proceeded to add a number of errors and misconceptions. Scholars immediately charged him with twisting historical and constitutional precedents.4 Among the errors was Sutherland’s plain distortion of a speech that John Marshall gave in 1800 when he served in the House of Representatives. The year marked an election battle between President John Adams and Thomas Jefferson. In the House, Jefferson’s supporters urged that Adams be either impeached or censured for turning over to England an individual charged with murder.
In defending Adams, Marshall stated that the president “is the sole organ of the nation in its external relations.”5 What did he mean by “sole organ”? That the president possesses plenary and exclusive power over external affairs? Such a claim would contradict the plain text of Articles I and II of the Constitution, assigning power over external affairs to both the president and Congress. Instead, Marshall defended Adams by pointing out that he carried out a provision of the Jay Treaty with England, including extradition authority to deliver up to each other “all persons” charged with murder or forgery.6 President Adams did not make foreign policy unilaterally. He carried out a treaty, which is the president’s constitutional duty.
In the years following Curtiss-Wright, various levels of the executive branch relied on the erroneous sole-organ dicta to expand presidential power at great cost to constitutional government. Executive branch attorneys cited the decision with great frequency. To Harold Koh, Justice Sutherland’s “lavish description of the president’s powers is so often quoted that it has come to be known as the ‘Curtiss-Wright, so I’m right’ cite—a statement of deference to the president so sweeping as to be worthy of frequent citation in any government foreign-affairs brief.”7
Litigation in the George W. Bush administration prompted the Supreme Court to review the sole-organ dicta. Legislation in 2002 stated that in issuing a passport for a U.S. citizen born in the city of Jerusalem, the Secretary of State “shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”8 In signing the bill, President Bush objected that several provisions “impermissibly interfere with the constitutional functions of the presidency in foreign affairs.” He expressed particular constitutional concern with Section 214. By referring to the president’s constitutional authority to “speak for the Nation in international affairs” he implicitly, if not explicitly, relied on Curtiss-Wright dicta.9
After extensive litigation in the lower courts, the U.S. Court of Appeals for the D.C. Circuit issued a decision July 23, 2013, concluding that Section 214(d) “impermissibly intrudes on the President’s recognition power and is therefore unconstitutional.”10 Five times it relied on the sole-organ doctrine, demonstrating no understanding that the doctrine was not merely dicta but erroneous dicta. In response to this decision, I filed an amicus brief with the Supreme Court July 17, 2014, pointing to numerous errors in Curtiss-Wright, including the sole-organ doctrine.11 While the Supreme Court is in session, the National Law Journal runs a column called “Brief of the Week,” selecting a particular brief out of the thousands filed each year. On Nov. 3, 2014, it selected my brief. The column carried a provocative title: “Can the Supreme Court Correct Erroneous Dicta?”12 On June 8, 2015, the Supreme Court rejected the sole-organ doctrine that had magnified presidential power in external affairs for 79 years.13
However, the Court proceeded to create a substitute model that promotes independent presidential power in external affairs. It claimed that between the two elected branches “only the Executive has the characteristic of unity at all times.”14 Far from displaying unity on all occasions, administrations regularly exhibit inconsistency, conflict, disorder and confusion. Anyone reading memoirs by top officials upon retirement would appreciate the degree of infighting and disagreements within any administration.
The Court attributed to the president four other qualities: decision, activity, secrecy and dispatch.15 Why would the Court assume that these five qualities are inherently positive? One need only review presidential initiatives from 1950 to the present time to understand that those qualities regularly produce negative and damaging consequences: Truman taking the country to war in Korea without first obtaining congressional authority; Johnson’s decision to escalate the war in Vietnam; Reagan’s involvement in Iran-Contra; Bush in 2003 using military force against Iraq on the basis of six claims that Saddam Hussein possessed weapons of mass destruction, with all six claims found to be entirely empty; and Obama ordering military action against Libya in 2011, leaving behind a country broken legally, economically and politically, providing a breeding-ground for terrorism.16
On June 18, 2018, the Supreme Court in Trump v. Hawaii announced that its decision in a 1944 Japanese-American case, Korematsu v. United States, was in error. As with the sole-organ doctrine in Curtiss-Wright, it took the Court more than seven decades to repudiate a prior ruling. However, long before 2018 lower federal courts, scholars, a congressional commission and legislation passed by Congress in 1988 were aware of the deficiencies of the Japanese-American cases.
With Korematsu, the Supreme Court upheld the placement of Japanese-Americans (two-thirds of them U.S. citizens) in detention camps.17 They were imprisoned solely on account of race18 A year earlier, in Hirabayashi, the Court upheld a curfew placed on Japanese-Americans on the West Coast.19 Writing for the Court in 1943, Chief Justice Stone said that because of conditions present in the case, it “is not for any court to sit in review of the wisdom” of what President Roosevelt and Congress decided and “substitute its judgment for theirs.”20 That sounds like a political question unsuitable for the courts. If so, why add the Court’s blessing? Stone claimed that the decision by General John L. DeWitt, who ordered the curfew, “involved the exercise of his informed judgment.”21 The judgment was not informed. DeWitt believed that all Japanese-Americans, by race alone, are disloyal.22 Judicial deference to military judgments might be justified. Deferring to racism is not.
In Korematsu, a 6-3 Court upheld detention camps in various parts of the country. In one of the dissents, Justice Murphy objected that the exclusion order resulted from an “erroneous assumption of racial guilt” found in General DeWitt’s report, which referred to all individuals of Japanese descent as “subversives” belonging to “an enemy race” whose “racial strains are undiluted.”23 Murphy chose to dissent from “this legalization of racism.”24 In the two Japanese-American cases, the Court failed to exercise an independent check on presidential power. It chose not to challenge and analyze various executive claims and assertions, many of which were later found to be erroneous.
In an article published in 1962, Chief Justice Warren reflected on the Japanese-American cases. To him, the decisions “demonstrate dramatically that there are some circumstances in which the Court will, in effect, conclude that it is simply not in a position to reject descriptions by the Executive of the degree of military necessity.”25 He underscored his point: “To put it another way, the fact that the Court rules in a case like Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.”26 In so many words, the Court in the Japanese-American cases announced that the government’s action was constitutional when it was not.
Repudiation of the Japanese-American cases would come from the elected branches. On Feb. 20, 1976, President Gerald Ford apologized for the treatment of Japanese-Americans during World War II. He said that President Roosevelt’s order resulted in “the uprooting of loyal Americans.”27 Evacuation and detention were wrong because Japanese-Americans “were and are loyal Americans.”28 In 1980, Congress established a commission to gather facts and determine the wrong done by Roosevelt’s order. The commission’s report, released in December 1982, stated that the order “was not justified by military necessity, and the decisions which followed from it — detention, ending detention and ending exclusion — were not driven by analysis of military conditions.” The principal factors that shaped those decisions “were race prejudice, war hysteria and a failure of political leadership.” To the commission, the Court’s decision in Korematsu “lies overruled in the court of history.”29
In 1988, Congress passed legislation to implement the commission’s report. The statute acknowledged “the fundamental injustice of the evacuation, relocation and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II.”30 It provided for a public education fund to finance efforts to inform the public about the internment of such individuals to help prevent the recurrence of any similar policy.
In the 1980s, Gordon Hirabayashi and Fred Korematsu returned to court after newly discovered documents revealed the extent to which executive officials had deceived federal courts. They filed a writ of coram nobis, charging the government with fraud against the court. Because the executive branch had knowingly concealed key evidence from the courts, their convictions were overturned in decisions handed down by lower federal courts from 1984 to 1987.31 At that point, the Supreme Court had adequate evidence on the basis of the congressional commission report and the coram nobis lawsuits to announce that its decisions in Hirabayashi and Korematsu were wrongly decided, but chose not to do so.
On May 20, 2011, Acting Solicitor General Neal Katyal publicly acknowledged that Solicitor General Fahy in the Japanese-American cases failed to inform the Supreme Court of evidence that undermined the rationale for internment. Katyal underscored the requirement that Solicitors General have a “duty of absolute candor in our representations to the Court.”32 Again the Supreme Court declined to repudiate Hirabayashi and Korematsu.
In Trump v. Hawaii, issued June 26, 2018, the Supreme Court split 5-4 in upholding a travel ban ordered by President Trump in September 2017. Writing for the Court, Chief Justice Roberts noted that a dissent by Justice Sotomayor, joined by Justice Ginsburg, was strongly critical of Korematsu. To Roberts, whatever “rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case.” But he proceeded to say: The dissent “affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided…”33
If it was wrong the day it was decided, why did it take the Supreme Court 74 years to admit error? Does the Court have to await litigation to correct its rulings? Nothing prevented the Court from announcing that its earlier opinions in the Japanese-American cases were so utterly lacking in constitutional merit, as pointed out by the congressional commission and the coram nobis lawsuits, to have any legal value. Moreover, if Korematsu was in error, what about Hirabayashi? Is it still “good law”?
State Secrets Privilege
Curtiss-Wright and the Japanese-American cases highlight how the Supreme Court commits errors of constitutional law and leaves them uncorrected for more than seven decades. That pattern applies also to United States v. Reynolds (1953), involving a midair explosion of a B-29 bomber, killing five of eight crew members and four of the five civilian engineers on board. Three widows of the civilian engineers filed a tort claims action to determine if the Air Force had been negligent in allowing the B-29 to fly. They asked for the accident report and other documents.
On June 30, 1950, District Judge William H. Kirkpatrick decided that the accident report and findings of the Air Force’s investigation “are not privileged.”34 When the government claimed that the accident report contained sensitive information that could not be seen by the widows and their attorneys, he directed the government to produce for his examination the report and other documents. He would read them in his chambers (in camera review). After the government withheld those documents from him, he ruled in favor of the three widows.35 The U.S. Court of Appeals for the 3rd Circuit affirmed36
On March 9, 1953, Chief Justice Vinson wrote for a 6-3 Court in favor of the government without ever looking at the accident report or insisting that it be reviewed by the district court. He offered this view of judicial authority: “The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”37 But if the government can withhold a document from a judge, even for in camera review, a judge following Vinson’s procedure would not know whether an executive official had acted capriciously, arbitrarily or with deceit.
The accident report was declassified in 1995. It contains no state secrets but abundant evidence that the Air Force was negligent in allowing the B-29 to fly.38 After gaining access to the report, the three families sued under a writ of coram nobis, charging that the government had misled the Supreme Court and committed fraud against it. They wanted to take the case directly to the Supreme Court. Without explanation, the Court on June 12, 2003, issued this statement: “Motion for leave to file a petition for writ of error coram nobis denied.”39 The Supreme Court had an opportunity to confront misleading governmental claims about the contents of the accident report but chose not to.
The three families returned to lower courts but lost in district court and the 3rd Circuit.40 On May 1, 2006, the Supreme Court denied cert.41 At every level of this coram nobis effort, the judiciary signaled to the executive branch that it is at liberty to present false claims in court at no cost to itself. Violated by this process is the need to protect the integrity, independence and reputation of the federal judiciary and the right of private citizens to pursue their interests in court.
Following the 9/11 terrorist attacks, the Bush administration invoked the state secrets privilege to prevent litigants from challenging a number of executive branch actions, including transferring individuals to other countries for interrogation and torture. Consider the case of Khaled El-Masri, who traveled to Macedonia at the end of 2003 for vacation. He was detained by border guards because they thought he was Khalid al-Masri, an al-Qaida suspect. There was also concern that his passport might be a forgery. CIA agents flew him to a prison in Afghanistan where he was subjected to abuse and violence. Eventually the CIA concluded that his passport was genuine and they had imprisoned the wrong person. On May 28, 2004, he was flown to Albania and allowed to return home to Germany.
El-Masri sued the CIA but the Bush administration invoked the state secrets privilege to prevent access to government documents. A U.S. District Court, deferring to “the Executive Branch’s preeminent authority over military and diplomatic matters,” held that the state secrets privilege had been validly asserted.42 The 4th U.S. Circuit Court of Appeals affirmed.43 The United States did not admit error but on Dec. 13, 2012, the European Court of Human Rights unanimously ruled that El-Masri was an innocent victim of torture and abuse. It held Macedonia responsible and ordered it to pay $78,000 in damages to El-Masri.44 Justice came from a foreign court, not the United States.
The executive branch inflicted great harm on Maher Arar, a Canadian citizen. Upon returning home to Ottawa in September 2002, he was pulled aside for questioning by New York police and FBI agents. The Bush administration sent him to Syria where for nearly a year he was subjected to physical abuse until finally released. Arar filed a civil suit seeking money damages and declaratory relief from a number of U.S. officials. After the administration invoked the state secrets privilege, a U.S. District Court ruled that Arar lacked standing.45
Fortunately, Canada conducted an independent investigation and concluded that its intelligence officials had shared with the United States false warnings and unreliable information about Arar. On Jan. 16, 2007, Prime Minister Stephen Harper released a public apology. Arar and his family received $10.5 million in compensation.46 The United States, responsible for Arar’s suffering, offered no apology.
On April 29, 2011, the Obama administration issued a report to Congress regarding the state secrets privilege. It concluded that no change was warranted with respect to the assertions of privilege by the Bush administration, including actions taken against Khaled El-Masri and Maher Arar. The Obama administration invoked the privilege to place individuals on the no-fly list without explaining why.47 The pattern of federal judges deferring to executive claims about state secrets largely continued. efn_note] Ibid., 180-85, 187-201. [/efn_note] Justice would be served if the Supreme Court announced that its decision in Reynolds was defective because it deferred to executive claims instead of protecting the rights of private litigants. By taking that step, federal courts and the executive branch could no longer rely on Reynolds when handling lawsuits from private parties.
Louis Fisher is Scholar in Residence at The Constitution Project at the Project on Government Oversight. From 1970 to 2010 he served as Senior Specialist in Separation of Powers at the Congressional Research Service and Specialist in Constitutional Law at the Law Library of Congress. He testified before congressional committees more than 50 times on a range of constitutional issues. His most recent books are Supreme Court Expansion of Presidential Power: Unconstitutional Leanings (2017), President Obama: Constitutional Aspirations and Executive Actions (2018), and his forthcoming Judicial Finality: Examining the Record, all with the University Press of Kansas.
- Brown v. Allen, 344 U.S. 443, 540 (1953).
- Herrera v. Collins, 506 U.S. 390, 415 (1993).
- 48 Stat. 1745 (1934).
- Louis Fisher, “The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky,” Constitutional Commentary 31: 149-219 (2016).
- 10 Annals of Cong. 613 (1800).
- 8 Stat. 129 (1794).
- Harold Hongju Koh, The National Security Constitution (New Haven: Yale University Press, 1990), 94.
- 116 Stat. 1366, sec. 214(d) (2002).
- Public Papers of the Presidents, 2002, II, 1697-99.
- Zivotofsky v. Secretary of State, 725 F.3d 197, 220 (D.C. Cir. 2013).
- Brief Amicus Curiae of Louis Fisher in Support of Petitioner, Zivotofsky v. Kerry, No. 13-628, U.S. Supreme Court, July 17, 2014, 2.
- Jamie Schuman, “Brief of the Week: Can the Supreme Court Correct Erroneous Dicta?,” National Law Journal, November 3, 2014.
- Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2089 (2015).
- Ibid., 2086.
- Louis Fisher, Presidential War Power (3d ed., Lawrence: University Press of Kansas, 2013), 95-103, 127-44, 282-88, 209-32, 238-47.
- Korematsu v. United States, 323 U.S. 214 (1944).
- Ibid., 218-19.
- Hirabayashi v. United States, 320 U.S. 81 (1943).
- Ibid., 93.
- Ibid., 103.
- Hirabayashi v. United States, 627 F. Supp. 1445, 1452 (W.D. Wash. 1986).
- Korematsu v. United States, 323 U.S. 214, 235-36 (1944).
- Ibid., 242.
- Earl Warren, “The Bill of Rights and the Military,” 37 New York University Law Review 181, 192 (1962).
- Ibid., 192-93.
- Proclamation 4417, 41 Fed. Reg. 7741 (1976).
- Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied 18, 238 (1982).
- Public Law 100-383, 102 Stat. 903 (1988).
- Korematsu v. United States, 584 F. Supp. 1406 (D. Cal. 1984); Hirabayashi v. United States, 627 F. Supp. 1445 (W.D. Wash. 1986); Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987).
- Neal Katyal, “Confession of Error: The Solicitor General’s Mistakes during the Japanese-American Internment Cases,” U.S. Department of Justice, May 20, 2011.
- Trump v. Hawaii, 585 U.S. 38 (2018).
- Brauner v. United States, 10 F.R.D. 468,472 (D. Pa. 1950).
- Sur Pleadings and Proof, Brauner and Payla v. United States, Civil Action No. 9793, and Reynolds v. United States, Civil Action No. 10142 (E.D. Pa. February 20, 1951).
- Reynolds v. United States, 192 F.2d 987 (3d Cir. 1951).
- United States v. Reynolds, 345 U.S. 1, 8 (1953).
- For access to the accident report, see pages 10a-68a of http://www.fas.org/sgp/othergov/Reynoldspetapp.pdf.
- In re Herring, 539 U.S. 940 (2003).
- Memorandum and Order, Herring v. United States, Civil Action No. 03-CV-500-LDD (E.D. Pa. Sept. 10, 2004); Herring v. United States, 424 F.3d 384 (3d Cir. 2005).
- Herring v. United States, 547 U.S. 1123 (2006).
- El-Masri v. Tenet, 437 F. Supp. 2d 530, 536-37. 539 (E.D. Va. 2006).
- El-Masri v. United States, 479 F.3d 304 (4th Cir. 2007).
- Nicholas Kulish, “Court Finds Rights Violation in C.I.A. Rendition Case,” New York Times, December 14, 2012.
- Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D. N.Y. 2006).
- “Harper’s Apology ‘Means the World’: Arar,” CBS News, January 26, 2007.
- Louis Fisher, President Obama: Constitutional Aspirations and Executive Actions (Lawrence: University Press of Kansas, 2018), 183-85.