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| | | | | American Constitutional Law, Volume One
Gregg Ivers, American University
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Case Problems
Chapter Five: Executive Power
Presidential Power in Times of Crisis
The Problem:
In response to the terrorist attacks on the World Trade Center and the Pentagon in September 2001, President George W. Bush asked for a congressional resolution authorizing "all appropriate force" to respond to what he called "an act of war" against the United States. The president did not ask for nor did he receive an official declaration of war from Congress. Although Article I, Section 8, of the Constitution grants Congress, not the president, the power to declare war, no official declaration of war had come from Congress since World War II. Since 1945, the United States had engaged in two protracted wars (Korea, Vietnam), one short war (Persian Gulf), led military engagements in order to enforce established political doctrine (Grenada, Panama and Yugoslavia, for example) and reacted with force during the Cold War when NATO interests were perceived to be threatened (Berlin, Bay of Pigs, Nicaragua, for example). President Bush argued that immediate authorization to use military force was necessary to protect American interests, since the attack was not the work of a foreign nation, but of a terrorist network spread throughout the world.
On September 24, Springfield Town in Anystate, located about 140 miles southeast of Shelbyville, reported that a local post office had received two anthrax-laden letters, both of which were addressed to local public officials. One was sent to the office of Mayor Nubius Quimby, and the other was sent to the office of Police Chief Nelius Wiggum. The letters all contained references to the September attacks against the United States, praising them and warning their recipients that the "next step in the war against the United State [sic] people" would be "mass death by germs." Three people in Mayor Quimby's office reported cases of skin anthrax; one person in Chief Wiggum's office reported skin anthrax; three more tested positive for anthrax exposure; and one person was diagnosed with inhalation anthrax, the deadliest and most difficult form of the disease to treat. Since Springfield is a small town, it lacked an adequate supply of the antibiotic Niko, which is widely considered the most effective in treating anthrax. Supplies for the affected persons were on hand for the affected few individuals, but local leaders were forced to turn to the Shelbyville Medical Center for more supplies of Niko. Since medical professionals were uncertain about the existence of other, undiagnosed anthrax infections, local leaders, including medical and public health authorities, requested enough doses of Niko for all persons possibly coming in contact with the letters in Quimby and Wiggum's offices. And after two postal workers fell ill with anthrax four days after the last reported case of anthrax in Wiggum's office, Springfield authorities demanded even more. Moreover, Springfield authorities demanded that the federal government underwrite the cost of the antibiotics, since the F.B.I. and other federal law enforcement agencies had decided to treat the anthrax letters as "linked" to the September attacks on New York and Washington. Springfield authorities argued that the anthrax victims should be treated as casualties of war and treated at government expense.
Two weeks after the anthrax letters were discovered in Springfield, four more cities in the United States - Gotham City, Smallville, Mayfield and Fredonia -- had anthrax-laden letters pass through local post offices on their way to their addressed destinations, all of which were connected to law enforcement operations. A total of 46 persons were diagnosed with anthrax-related illnesses. Fortunately, all but two persons were diagnosed with skin anthrax or anthrax exposure. The anthrax inhalation victims both worked in federal postal facilities. Concerned that more anthrax letters were circulating in the nation's mail system, the Surgeon General of the United States - the nation's chief public health officer - urged all persons working in postal facilities to begin taking Niko as a precautionary measure. At the same time, thousands of individuals with no connection to the previous cases (they were not postal workers or worked in law enforcement capacities) called their physicians to request supplies of Niko. Since anthrax symptoms are similar to those of the flu, many doctors agreed to write prescriptions for their patients, even while they told them that the flu stems from a virus and not a bacterial source.
Only one American company, Burns Enterprises, located in Gotham City, manufactures Niko. Burns officials announced they would supply the government with as much Niko as it was able to manufacture, but would not step up production to meet the government's demands. Burns also said that it would not agree to President Bush's request that the company sell the antibiotic to the government at a lower price. After a public reprimand from the president, Burns hardened its position, saying that companies existed in other countries that also manufactured products similar to Niko, and the government should work out an arrangement with those companies to supply adequate amounts of the antibiotic.
Citing the September congressional resolution authorizing the president to use all appropriate force to counter American opponents in the war against terrorism, President Bush announced the issuance of Executive Order No. 1234, which permitted him to seize control of Burns Enterprises and mandate the production of Niko to meet government specifications. The executive order also permitted the president to set prices on Niko products in order to comply with the government's budgetary restrictions.
Burns executives argued that President Bush had no power to seize control of a private company to mandate manufacturing and pricing levels. Burns argued that the Supreme Court's decision in the Steel Seizure Case (1952) made it very clear that the president was acting outside of his constitutional authority. President Bush argued that the facts in this case were very different than in the standoff between President Truman and the nation's steel mills, and those differences authorized to take the action that he did. Burns countered that President Bush had not offered sufficient public evidence that the anthrax letters were connected to the September attacks, other than to state that such evidence was "compelling." When pressed, the president argued that the sensitivity of an ongoing federal investigation prevented him from releasing the evidence connecting the events. He justified his position based on the doctrine of executive privilege.
Questions:
- Does a wartime emergency exist? You will need to decide whether Congress has effectively declared a state of war.
- Is the president's seizure of Burns Enterprises constitutional?
- Is the use president's decision to invoke executive privilege constitutional?
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