Volume 29, Issue 3
Volume 29, Number 3 Spring 2002
ARTICLES
Youngstown Revisited
By Christopher Bryant and Carl Tobia
In Youngstown Sheet & Tube Co. v. Sawyer, the U.S. Supreme Court struck down as unconstitutional President Truman’s 1952 executive order authorizing federal government seizure and operation of the nation’s steel mills. In this article, Professors Bryant and Tobias apply this landmark precedent to the provisions of President Bush’s November 13, 2001 military courts executive order that purport to authorize indefinite detention of covered individuals and to preclude them from invoking the jurisdiction of the federal courts.
In this article, the authors first examine the constitutional text, history, and relevant Supreme Court authority supporting the conclusion that Congress, not the Executive, is the political branch responsible for prescribing, within constitutional limits, the scope of federal judicial jurisdiction. They next discuss the legal responses of Congress and President Bush to the September 11 terrorist attacks. After exploring the events leading up to President Truman’s steel seizure order, the authors review the Justices’ opinions in Youngstown. They then apply the constitutional lessons of Youngstown to the detention and jurisdiction provisions of President Bush’s military courts order, finding that these provisions violate the Constitution. They conclude by urging the Bush Administration not to invoke these provisions but rather to submit to federal judicial scrutiny of detainment or trials in all cases otherwise within the jurisdiction of the federal courts.
Congressional Authority to Induce Waivers of State Sovereign Immunity: The Conditional Spending Power (and Beyond)
By Michael T. Gibson
Since 1997, the Court has issued almost a dozen Eleventh Amendment decisions, each of which expanded State sovereign immunity. Meanwhile, the Court’s conservative, pro-State justices have discussed what Justice Anthony Kennedy has said is the most important federalism issue before the Court: Congressional authority to place conditions on grants of federal funds.
This article unites those two apparently independent doctrines. It contends that the Conditional Spending Power, as developed by Rehnquist, Scalia, and O’Connor, permits Congress to condition a State’s receipt of federal funds upon that State’s waiver of immunity to suits regarding how those funds are spent. The article then goes beyond the Conditional Spending Power by showing how other parts of Article I give Congress authority to impose similar conditions on a State’s receipt of various federal non-monetary benefits, such as copyrights and patents, regulatory authority, and even access to federal courts. Using those powers, Congress could eliminate, or at least substantially reduce, State immunity from lawsuits in federal court.
In for a Calf is not Always in for a Cow: An Analysis of the Constitutional Right of Anonymity as Applied to
Anonymous E-Commerce
By Sharon K. Sandeen
The ability of Internet users to be anonymous is often touted as one of the benefits of the Internet. It is argued that anonymity on the Internet should be protected because it enhances the free exchange of ideas and helps preserve individual privacy. But anonymous on-line communications have an obvious dark-side. Anonymous Internet messages and advertisements increase the potential for fraud by making it difficult, if not impossible, for the true identities of communicants to be traced. This article explores the tension that exists between efforts to regulate anonymous Internet communications and the free speech principles of the First Amendment. Based upon the U.S. Supreme Court’s existing commercial speech doctrine and its holdings in several anonymous speech cases, it concludes that a statute that requires Internet advertisers to disclose their correct legal identities and principal place of business would not be unconstitutional.
NOTE
Executive Orders, "The Very Definition of Tyranny," and The Congressional Solution, The Separation of Powers Restoration Act
By Leanna M. Anderson
James Madison wrote, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands... may justly be pronounced the very definition of tyranny." The Federalist No. 47, at 300 (James Madison) (Henry Cabot Lodge ed., 1888). Expansive executive orders are often criticized as the merger of legislative and executive powers in the hands of the President. This Note examines how the judiciary has worked to check this "tyranny." After examining the difficulties in challenging executive orders, this Note examines how the proposed Separation of Powers Restoration Act would facilitate legal challenges to executive orders.