Saturday, February 11, 2017

Supreme Court ruling on national security and the judiciary

By Donald Sensing


Has the Supreme Court ever ruled on the role of the judiciary in matters of national security? Yes, in
C. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948), decided February 9, 1948

The ruling states (in relevant part to the Ninth Circuit's set-aside of the executive order temporarily suspending, with certain exception, entry into the United States of persons from seven named countries),
The court below considered, and we think quite rightly, that it could not review such provisions of the order as resulted from Presidential direction. The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. Coleman v. Miller, 307 U. S. 433, 307 U. S. 454; United States v. Curtiss-Wright Corporation, 299 U. S. 304, 299 U. S. 319-321; Oetjen v. Central Leather Co., 246 U. S. 297, 246 U. S. 302. 
We therefore agree that whatever of this order emanates from the President is not susceptible of review by the Judicial Department.
The ruling's author was Justice Robert Jackson, a towering figure in American jurisprudence.
[He] was United States Solicitor General (1938–1940), United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He is the only person in United States history to have held all three of those offices.
Read that excerpt from the ruling again. Seems clear enough.

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