Charming Betsy and Youngstown

by Roger Alford

In my recent article on the role of foreign relations in statutory interpretation (available for download here), I made an argument that Charming Betsy is grounded in separation of powers concerns and that this means, among other things, that the Youngstown categories should be read in light of Charming Betsy. Here is what I argued:

It is now accepted that the scope of Executive authority depends on the integration of dispersed powers, with presidential powers fluctuating depending on their disjunction or conjunction with those of Congress.

Justice Jackson’s landmark concurrence in Youngstown delimits executive authority based on express or implied congressional approval or disapproval. One might say that Jackson’s trilogy is dependant on congressional intent, with two of the categories relying on implied understandings for their vitality. The first – “[w]hen the President acts pursuant to an express or implied authorization of Congress” – is the Executive’s maximalist position, including all he possesses and all Congress can delegate. The third – “[w]hen the President takes measures incompatible with the expressed or implied will of Congress” – is the Executive’s minimalist position, including only that which his own powers confer and Congress cannot remove.

But rarely can one discern when congressional authorization or prohibition is implied. Charming Betsy is an oracle to divine implied congressional intent in the foreign affairs arena. Charming Betsy requires that congressional action should not be construed to violate the law of nations if any other possible construction is available. This would suggest that under Youngstown’s first category, congressional statutes will rarely implicitly authorize executive violations of international law. But they may implicitly authorize executive compliance. Conversely, under Youngstown’s third category, congressional statutes will rarely implicitly prohibit executive compliance with international law. But such statutes may implicitly prohibit executive violations. Charming Betsy thus shifts the “twilight zone” of the middle ground in Youngstown – “[w]hen the President acts in absence of either a congressional grant or denial of authority” – toward international compliance. For congressional silence is not simply a matter of “inertia, indifference, or quiescence.” It is also a matter of presumption. We presume Congress is not acting in certain ways, i.e., to sanction violations or prohibit compliance with international law. That presumption inures to the benefit of the Executive in Youngstown’s third prong, for it increases the arena of sole executive authority to act in compliance with international law, and imposes an obligation on Congress for a clear statement of prohibition. But it also narrows the executive’s authority in Youngstown’s first prong, limiting the scope of authority to act pursuant to an implied congressional direction inconsistent with international norms….

The impact of Charming Betsy on Youngstown was … directly relevant in the recent detainee case of Hamdi v. Rumsfeld. The question in Hamdi was whether the Executive had authority to detain American citizens who qualify as “enemy combatants” pursuant to congressional authorization to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Hamdi, an American citizen, objected to the indefinite detention, but the Court sub silentio applied Charming Betsy to conclude the detention was authorized by Congress. A plurality of the Court found that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities” and “we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.” Two other justices conceded the merit of this position but found it factually inapposite. Thus, six justices of the Court found implicit congressional authority to detain enemy combatants within the parameters of international law. Charming Betsy’s gloss on Youngstown was dispositive in finding implicit statutory authority to detain Hamdi consistent with the laws of war. International law was the accepted background norm against which Congress legislated.

The same could be said for the recent case of Hamdan v. Rumsfeld. In addressing whether there was statutory authority permitting the President to convene military commissions, the Court read international law principles into the relevant statutes. “Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the ‘Constitution and laws,’ including the laws of war.” Those statutes were interpreted as limiting the delegated authority of the President to act outside the parameters of the laws of war.

To the extent I have heard feedback from others about this argument it has been quite positive. But I would be curious what our readers think about the idea that implied authorizations and implied prohibitions under Youngstown should be read in light of an accepted rule of statutory presumption such as Charming Betsy.

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