And now we finally come to the main event in the No Man’s Land arc: the evacuation and quarantine of Gotham City.
The comic books do not clearly define the process by which Gotham was evacuated and quarantined, but we know three things for certain. First, Congress refused to grant Gotham additional federal aid (this much is certainly within Congressional authority). Second, the President issued an executive order, invoking “some half-forgotten loophole about national security,” which is apparently what actually set the evacuation and quarantine in motion. Third, Congress then enacted a law that made Gotham no longer part of the United States. It’s these second and third issues that we’ll be taking a look at.
I. The Limits of Executive Orders
An executive order is a formal declaration by the President, which can be made pursuant to one of two sources of authority. First, the authority can be an inherent constitutional power, such as the power to pardon. Second, the authority can be derived from a statute (i.e. a grant of power to the executive branch by the legislature). If an executive order is unconstitutional or otherwise invalid, those adversely affected by it can challenge the order. See, e.g., Reid v. Covert, 354 U.S. 1 (1957).
So given that Congress acted after the executive order was given, what source of power could the President possibly use to justify the order to evacuate and quarantine Gotham? One possibility is the Insurrection Act, which makes particular sense given that we know that the military was called in to keep order, and it was the military that eventually demolished the bridges connecting Gotham to the mainland and also mined the river and harbor.
Typically, invoking the Insurrection Act requires a request from the governor or state legislature, but we can reasonably assume that the governor of whatever state Gotham is in did so. This could arguably give the President the power to “order the insurgents to disperse” to someplace other than Gotham. Ordinarily the insurgents must be ordered to “retire peaceably to their abodes within a limited time,” but it’s conceivable that the whole of Gotham was seized by eminent domain, so the insurgents’ “abodes” would no longer be in Gotham.
Invoking eminent domain would require compensating the property owners, but since the earthquake and fire drastically reduced the value of the property, the compensation would likely be significantly less than the cost of rebuilding.
So while it would make more sense for Congress to act first, it’s not inconceivable that the President’s actions could be more-or-less justified under existing law.
II. Giving Up Territory
Here’s where we come to the sticky part. There’s no explicit constitutional provision for acquiring new territory, much less giving it up. This fact has been something of an elephant in the room ever since the Louisiana Purchase. Thomas Jefferson wanted to amend the Constitution to spell out the process for acquiring new territory, but the deal was pushed through without it. Various ad hoc and ex post justifications for acquiring new territory have since been invented, typically resting on the treaty power. The treaty power is also the mechanism by which territory can be given up (or “alienated”), which is something the United States has done several times in the 20th century.
However, not all United States territory is equal. There are five different kinds of US territory: unincorporated & unorganized, unincorporated & organized, incorporated & unorganized, incorporated & organized, and states. These kinds of territory differ in how they may be alienated, but we don’t have to go into all of the details because Gotham, of course, is part of a state. In fact, it’s not clear how the US would go about giving up part of a state, since that has never happened before.
In fact, if it’s possible at all then it would require a constitutional amendment. “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. … There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.” Texas v. White, 74 U.S. 700 (1868). If Gotham were part of an unincorporated territory (like, e.g., Puerto Rico), then it’s at least arguable that Congress would have the power to “deannex” it. See Christina Duffy Burnett, United States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797 (2005). But once something becomes an incorporated part of the United States (organized or not), it’s essentially part of the United States forever.
So while it might be possible to evacuate and quarantine Gotham, it’s probably not possible to go so far as to declare it no longer part of the United States. Perhaps the best that could be done would be to subdivide it into its own state, per Article IV Section 3. That would require the consent of Congress and the state that Gotham sits in, but it could be done. The resulting pariah state could be denied federal funding and of course would have no state government. The result would be de facto lawlessness.
That wraps it up for No Man’s Land for now. DC is (finally) reprinting the trade paperback version of the series, starting with volume 1 in December. This is a good thing because it’s a little hard to track down full copies of the original printing. Either way you get it, it’s a good series, and we recommend picking it up!