The president’s power as commander in chief - Next Generation Bar Exam

1. Which war powers does Article I give Congress?

   To declare war, raise and support armies, provide and maintain a navy, and make rules for the armed forces. Congress also controls military appropriations, which may not extend more than two years for the army.

2. What did Youngstown Sheet & Tube v. Sawyer hold about the President's wartime seizure of steel mills?

   The seizure was unconstitutional because neither the Constitution nor any statute authorized it. Congress had considered and rejected seizure authority.

3. Under Hamdi v. Rumsfeld, what process is a U.S. citizen held as an enemy combatant entitled to?

   Notice of the factual basis for the detention and a fair opportunity to rebut it before a neutral decisionmaker. Detention itself was authorized by Congress's Authorization for Use of Military Force.

4. Under Boumediene v. Bush, what right do noncitizens detained at Guantanamo Bay have?

   The privilege of habeas corpus under the Suspension Clause. Congress may not withdraw that right without providing an adequate substitute.

5. Under Justice Jackson's Youngstown concurrence, when is presidential power at its lowest ebb?

   When the President acts against the express or implied will of Congress. Power is at its maximum with congressional authorization and in a zone of twilight when Congress is silent.

6. What military action may the President take without a declaration of war?

   Using force to repel sudden attacks. The Prize Cases recognized the President's power to respond to an armed attack.

7. Under Trump v. United States, what immunity does a former President have for acts within his conclusive and preclusive constitutional authority?

   Absolute immunity from criminal prosecution. Other official acts carry at least presumptive immunity, and unofficial acts carry none.

8. What power does Article II give the President over the armed forces?

   The power of Commander in Chief of the Army and Navy and of the state militias when in federal service. The Commander in Chief power is shared with Congress's war powers.

9. Under Hamdan v. Rumsfeld, what was the status of military commissions created by the President without congressional authorization?

   They were invalid because they did not comply with the Uniform Code of Military Justice and the Geneva Conventions. Congress responded by enacting the Military Commissions Act.

10. Under the War Powers Resolution, what must the President do after introducing forces into hostilities without authorization?

    Report to Congress within 48 hours and withdraw within 60 days, plus a possible 30 days, absent authorization. The constitutionality of the withdrawal requirement has never been resolved by the courts.

11. During a war, the President orders the military to take over private factories after Congress has expressly refused to authorize seizures. Under the Youngstown framework, how is the order assessed?

    The President acts at the lowest ebb of his power and the order is likely invalid. He may rely only on his own constitutional powers minus those of Congress.

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