The vexing problem of immediacy would cause the Supreme Court to later back away from Holmes ' ruling in '' Moyer . '' Just a quarter of a century later , in '' Sterling v. Constantin , '' 287 U.S. 378 ( 1932 ) , the Court held ( contra '' Moyer '' ) that executive findings of a state of insurrection must be subject to judicial review . In '' Sterling , '' the governor of Texas had restricted production of oil from certain wells by claiming that a state of insurrection existed in some areas of his state . Not only did the Supreme Court conclude that such claims of insurrection were subject to judicial review , but after review the court actually rejected the governor 's finding . Citing '' Mitchell v. Harmony , '' the Court endorsed " the argument that without judicial review , the boundaries setting apart real emergencies will break down . Chief Justice Hughes explicitly articulated the fear that if emergency powers are beyond court scrutiny then soon all government action will be characterized as an emergency . " For most of the 20th century , Supreme Court jurisprudence ignored '' Moyer . '' Prior to 2004 , the last decision to rely heavily on '' Moyer '' was '' Scheuer v. Rhodes , '' 416 U.S. 232 in 1973 . In '' Scheuer v. Rhodes , '' survivors of the victims of the Kent State shootings of 1970 sued the Ohio Army National Guard for damages . A lower court rejected the suit , using the rationale provided in '' Moyer . '' But the U.S. Supreme Court unanimously reversed , " emptying the '' Moyer '' precedent of most of its residual authority . " After the 9/11 attacks , however , '' Moyer '' took on new significance . In 2004 , the case was thoroughly discussed in the Supreme Court 's " illegal enemy combatant " decision , '' Hamdi v. Rumsfeld '' . The '' Moyer '' case may take on increasing significance in the future as the " War on Terror " continues . " The ruling 's appeal to present-day government lawyers is obvious . The administration has taken pains to emphasize that the Padilla detention order — like the order establishing the ground rules for military commissions — was signed by President Bush in the exercise of his authority as commander-in-chief . And if a state governor playing commander-in-chief can persuade the courts to rubber-stamp his abusive actions , surely a President can , too . "
Kent State shootings
Kent State shootings
Moyer v. Peabody