Posted on 02/15/2006 8:09:51 AM PST by inquest
- How the Bush Administration Has Mistaken Default Rules for Exclusive Rights -
Two recent episodes in our political life have exposed a deep rift between the Bush Administration and Congress over the proper scope of Presidential power.
First, as 2005 drew to a close, President Bush signed a defense appropriation bill that contained a categorical prohibition on torture and cruel, inhuman or degrading treatment of detainees by all U.S. personnel, anywhere in the world. But Bush simultaneously released a signing statement that purported to reserve the right to order the use of those interrogation techniques that were within his prerogatives as head of the "unitary executive branch" and as Commander in Chief.
Second, in their public defense of the President's approval of electronic eavesdropping within the United States in apparent violation of Acts of Congress, Administration officials and others have argued, among other things, that Congress lacked the authority to constrain the President in wartime espionage. On this view, even if the National Security Agency ("NSA") program of electronic eavesdropping violated the Foreign Intelligence Surveillance Act ("FISA"), the President still acted lawfully in authorizing it, because FISA itself is unconstitutional.
Common to both of these assertions is the notion that the President has certain inherent powers that Congress may not limit. That notion is true--as far as it goes. There are some powers of the President that cannot be limited by Congress.
But not every action that the President would be permitted to take on his own is therefore his to take in the teeth of a Congressional prohibition. We can, and should, distinguish between those inherent Presidential powers that are mere default powers--exercisable by the President even without Congressional authorization but nonetheless subject to Congressional override--and those inherent Presidential powers that are exclusive powers--unregulable by Congress. The arguments of the Administration and its defenders conflate these very different concepts.
Two Examples of Exclusive Presidential Power
The Constitution commits some functions to exclusive Presidential control. For example, suppose that Congress wished to address the recurrent risk that on his way out of the Oval Office, a lame-duck President would grant pardons to his well-connected but otherwise undeserving friends. Congress might therefore enact a statute forbidding the issuance of Presidential pardons during the last year of a Presidential term of office.
Yet such a law would be clearly unconstitutional because the Constitution grants to the President the "Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment," and grants to Congress no role whatsoever with respect to pardons. Thus one must conclude, as the Supreme Court did in the 1871 case of United States v. Klein, that Congress cannot limit the grounds or terms on which a President grants pardons.
Similarly, the President's authority to seek and receive advice from Cabinet officials appears to be another power Congress cannot limit. Suppose Congress believes the President is paying insufficient heed to the advice of his Secretary of State, while granting his Secretary of Defense too great a role in matters of international diplomacy. Could Congress require that the President receive and read daily briefings from the Secretary of State?
Surely not, for the Constitution empowers the President to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." It is for the President, not Congress, to decide whether and when to seek the written opinions of the members of his Cabinet.
Concurrent War Powers: When the President and Congress Share Power
In advancing the argument that Congress may not limit the President's powers as Commander in Chief, the Administration and its defenders draw a false analogy to bona fide exclusive Presidential powers like the pardon power and the power to demand written advice from Cabinet officials.
For with respect to war, the Constitution assigns to Congress numerous powers that operate concurrently with the President's powers.
That is not to say that the President lacks inherent powers as Commander in Chief. For example, suppose Congress has exercised its power to raise and support armies but has failed to prescribe rules for their discipline. Surely no one would doubt that the President may then issue orders concerning insubordinate soldiers and deserters. His power as Commander in Chief carries with it the incidents of authority necessary to command effectively.
But inherent Presidential authority to prescribe discipline for the armed forces is only a default setting. It can be changed by Congress.
How do we know that? Because the Constitution expressly grants to Congress the power "[t]o make Rules for the Government and Regulation of the land and naval Forces."
This Congressional power would not be worth the parchment it's written on, were the President able to flout any and all rules and regulations Congress enacted.
No Inherent Power to Override Congressional Regulation of Surveillance
The Administration claims that the President has inherent authority to order wartime warrantless surveillance of American citizens as Commander in Chief.
That claim is probably correct, although the Supreme Court has never squarely rejected the argument that such surveillance violates the Fourth Amendment.
But even if we put aside any Fourth Amendment objection, there is a world of difference between warrantless surveillance conducted on the President's own authority, and such surveillance conducted in violation of a Congressional prohibition such as FISA.
For if the President's default power to order warrantless surveillance stems from his inherent default authority as Commander in Chief of the armed forces, then surely the specific authority of Congress, expressly granted by the Constitution, to prescribe rules and regulations of those same forces can change the default.
(To be sure, one might object that the Congressional power to write rules and regulations for the armed forces does not apply to the NSA, because the NSA is a civilian rather than a military agency. But if so, then the President likewise lacks authority over the NSA as Commander in Chief. And in any event, Congressional power to create the NSA in the first place surely includes the subsidiary power to write rules constraining the agency. If not, then nearly all of modern administrative law is unconstitutional.)
Accordingly, whatever power the President has to order wartime warrantless surveillance of Americans can, constitutionally, be limited by Congress. It is a default power, not an exclusive power.
No Inherent Presidential Power to Override Congressional Limits on Methods of Interrogation
The Administration's claim of a legal right to resist Congressional limits on methods of interrogation is no stronger than its claims with regard to warrantless surveillance. Here, too, the Constitution adopts a strategy of default Presidential power subject to Congressional override.
Suppose Congress wrote no rules governing the treatment of captured enemy soldiers, and suppose further that neither the Geneva Conventions nor any other principle of international law regulated their treatment. In such circumstances, the President, as Commander in Chief, would surely have authority to issue orders governing their treatment, for as the Supreme Court recognized in the 2004 case of Hamdi v. Rumsfeld, the detention of enemy combatants is a standard incident of the conduct of war.
But the President's inherent authority in this area is only a default rule. The Constitution expressly grants to Congress the power to "make Rules concerning Captures on Land and Water." A statute prohibiting torture and other forms of cruel, inhuman or degrading treatment of captives falls squarely within this language. The President's claim to be able to override it as Commander in Chief thus directly contradicts the express and unequivocal terms of the Constitution.
How the Administration and its Defenders Have Mischaracterized the Steel Seizure Case in the Public Debate
In important respects, the analysis I have provided here follows the framework set out by Justice Robert Jackson in his concurrence in the 1952 Steel Seizure Case. Jackson classified cases involving the scope of Presidential authority as falling within three broad categories: (1) Cases in which the President acts pursuant to a grant of power from Congress; (2) in which the President acts on his own, neither authorized by Congress nor prohibited from acting by Congress; and (3) in which the President acts in violation of a Congressionally-enacted prohibition.
The Steel Seizure Case itself fell within category two: It was a case in which the President acted on his own, with Congress not having spoken directly to the exercise of power at issue. Although Congress had enacted legislation governing labor relations, it had neither expressly authorized nor prohibited President Truman's seizure of the steel mills. Nonetheless, because the majority and Justice Jackson found that the President lacked this power on his own, the Court invalidated the seizure. The Court did not even find default power in the President.
Some of the Bush Administration's defenders have questioned the validity of Jackson's category three, into which the conflicts over electronic surveillance and treatment of enemy combatants appear to fall.
If the President has the inherent authority to act in a given sphere, they ask, then how can a Congressional prohibition make any difference?
The answer should now be obvious: Some forms of inherent Presidential power are mere default powers. An Act of Congress purporting to limit the pardon power would be of no effect because the President's authority with respect to pardons is exclusive. But as to war powers, the Constitution quite clearly gives Congress authority to constrain the President.
And that is perfectly consistent with Justice Jackson's Steel Seizure concurrence. He wrote of category three: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."
The key phrase here is "constitutional powers of Congress over the matter." Because Congress has no constitutional powers over pardons, even in category three, the President's will prevails. But where Congress does have constitutional power, as with respect to war, Justice Jackson explained: "Courts can sustain exclusive presidential control . . . only by disabling the Congress from acting."
Ultimately, the flaw in the Bush Administration's repeated conflation of default Presidential powers with exclusive powers is not that it contradicts my analysis, or even that it contradicts Justice Jackson's. The problem is that it makes a mockery of much of the Constitution the President has sworn to uphold.
The Major flaw with this piss ant's analysis is that he assumes these are American citizens under surveillance. NOT! The ones being listened to are Foreign Nationals. They are NOT afforded RIGHTS a US citizen has UNTIL they BECOME a Citizen.
"regulations for the armed forces does not apply to the NSA, because the NSA is a civilian rather than a military agency."
The NSA is not a 'civilian' agency controlled by Congress, but was established by executive order of President Truman.
"The National Security Agency was created in November 1952 and has provided timely information to U.S. decision makers and military leaders for more than 50 years. However, even before President Truman signed the memorandum establishing the Agency"
Link to the history of the NSA.
http://www.nsa.gov/history/index.cfm
And then the Court of Review did one more thing, something that has repercussions in today’s surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
All the pontificating about it is way off the mark.
But, according to the author, Congress changed the rules with the passing of FISA, and since Congress changed the rule, then, hey, they MUST be right? /sarc
The power to pardon is probably the most dangerous of all powers that the President holds.
For example, if we ever elect a President who opposes capital punishment, they could immediately pardon every prisoner on death row. Or if he thought blacks were discriminated against, he could pardon all black men in prison for drug and other "victimless" offenses.
There is nothing the courts can do to stop him, nothing the congress can do. Nobody can control the president.
The ONLY check we have against a president pardoning criminals is the check of the PEOPLE in voting for a person of character who won't do this.
Which is the SAME check we have for MANY of the things that the democrats now claim are "unchecked power". If we trust the President to pardon criminals, it seems rational to trust the President to appoint a few judges, or even to authorize wiretaps which might pick up domestic conversations.
If the President doesn't use the power wisely, we can vote him out. If he REALLY seems to be causing damage, we can write congress, and they can impeach him. Those are the checks against unbridled presidential use of power.
Probably can't because of Posse Comitatus.
What are the "Inherent" Powers of the President?
It means if anything happens to 'W' that Jenna and Barbara become president right?
All these things are just to bash Bush.
Congress should have known this ruling before they started the "hearing". The only purpose in holding a "hearing" is to try to harm the country and embarrass Bush.
RINOs are liberals even though they may have R after their name.
I can't see a flaw in the author's general point that Congress does have the power to stop the President from doing this. But I don't see in FISA where the President is NOT allowed to eavesdrop on communications going overseas.
So if they really feel the President shouldn't be doing this, Congress is free to enact a law preventing him from doing so, and to try to override his veto.
Wait, nevermind, Bush lost his veto pen, hasn't used it once in office. Maybe he'll find it for this and then start to veto the other crap legislation like the stuff that he's been signing so far.
bttt
They jumped the gun when they "took this for granted", which is probably why SCOTUS never referred to it. To take their statement to its logical conclusion, FISA itself would have to be declared unconstitutional.
In any case, that statement from the FISA court was just dictum, because it was not pertinent to their ruling in the case (it would have been pertinent if the court had actually rebuffed the attempt to invoke FISA in that case, but that's not what it did). As such, it doesn't have any real precedential value.
I disagree, because it's a very public power that's liable to provoke an instant public reaction if it's used abusively. The most dangerous powers are arguably the ones that can be used subtly and behind the scenes.
If the President doesn't use the power wisely, we can vote him out.
And...how do we know whether or not he's using the power wisely?
Under the Articles of Confederation the congress could run the war, that power was taken from them in the constitution.
It can be an interesting question at what point exactly the congressional and presidential powers divide. Just claiming the power to make "rules and regulations" as an expressed grant to congress of the power to conduct warfare is not historical or helpful.
Indecisive (IMHO) but helpful essay: Toward a Discretionary Post-9/11 Public Policy that Remains Constitutional: Lessons from the Civil War
Maybe he is. I won't contest that one way or the other.
Michael Dorf, on the other hand, seems to know what he's talking about.
Just claiming the power to make "rules and regulations" as an expressed grant to congress of the power to conduct warfare is not historical or helpful.
Where did he claim that in this piece?
"How could it even get funding otherwise?"
Defense Department.
Just found this!
Now I know the writer is full of crap!
"The NRO and NSA are funded through the Defense Department and report directly to the secretary of Defense."
And this from the 'Democratic Leadership Council' no less.
http://www.dlc.org/ndol_ci.cfm?kaid=124&subid=900019&contentid=3929
That's such a huge misstatement that it calls into question all the other conclusions in the article. The NSA is a DoD agency, subordinate to the Department of Defense and takes its orders from the Secretary of Defense. It is headed by a uniformed military officer.
Read further. He's arguing against that statement.
Call it a "preemptive attack" against objections to the argument he's making in the article.
Perhaps you should read the whole thing.The Court of Review did rebuff the FISA court in its attempt.
Here is the previous paragraph, where they ruled that the FISA Court erred in the application of their authority.
It surely has precedential value.
In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. “In doing so, the FISA Court erred,” the ruling read. “It did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied.” The FISA Court, according to the ruling, “refus[ed] to consider the legal significance of the Patriot Act’s crucial amendments” and “may well have exceeded the constitutional bounds” governing the courts by asserting “authority to govern the internal organization and investigative procedures of the Department of Justice.”
Search the archives for the article. "Listening to the enemy".
The ACLU asked the Supreme Court to review the ruling, the Supreme Coourt refused.
"For if the President's default power to order warrantless surveillance stems from his inherent default authority as Commander in Chief of the armed forces, then surely the specific authority of Congress, expressly granted by the Constitution, to prescribe rules and regulations of those same forces can change the default."
Ignoring the difference between "rules and regulations" and "the conduct of war" is his whole shtick.
But that difference is just what's in dispute!
(Gee, how many Dorfs are there commenting on law?)
There are those who are making that very assertion.
It appears that if push comes to shove, the courts have ruled on this separation of powers before.
Congress surely would be aware of the earlier decisions relied on by the court of revue.
That is again why I maintain that the whole "hearing" is just to embarrass Bush, and harm the Country.
He hasn't been conflating the two. He hasn't, for example, claimed that Congress has the power to direct military operations in any way, by telling the President to devote so many troops and of what kind to Sector A, while having the Navy and Air Force provide air cover. If Congress were to do that, it would be acting as CinC in lieu of the President.
That's very different from providing rules for how the operations are to be conducted - rules clearly designed for the protection of U.S. citizens.
There were statements made during the hearing where members of the Committee were suggesting that the Attorney General go to the FISA court to obtain a determination on this point.
I would bet that after the classified briefing where this ruling probably was explained to the Committees, this whole thing is dropped.
It is obvious what the FISA Court of review would rule if it was asked.
If they pursue it, they will be rebuffed. If they drop it, they can still claim that Bush is breaking the law.
Guess which they will do.
His powers include, but are not limited to, laser vision, extra-human strength, the ability to change form at will, and other secret powers known only to him and his staff.
Those earlier decisions were pre-FISA, and did not touch on the question of Congress's power to regulate in this area. And at least one of them (Truong) made its ruling in part on the basis that ordinary judges lack the expertise to properly issue warrants for foreign-intelligence surveillance. It then noted in the footnote that the then-newly created FISA* seemed to deal with that problem by creating a court that specialized in that area. That implied that the court didn't really consider it a slam-dunk that these types of laws are unconstitutional.
*Although Truong was rendered after FISA went into effect, it dealt with a pre-FISA case.
I didn't know the court could give purely advisory opinions. Wouldn't there have to be an actual case?
Only the Speaker of the House has such powers.
Remember how Tip O'neal used to smile contentedly as he sat in his chair surveying all the member of the House? We just thought it was the booze.......
That may be true, but I'll bet the FISA Court will stay away from any ruling that gets close to finding out.
I will also bet that Congress will stay away from actions that go into that black hole in an attempt to find out.
I am sure that is correct, so the statement you characterized a dicta is probably as close as there will be to an advisory opinion.
That is why I think that the FISA Court and Congress will stay away from this area.
NSA has been a Defense Agnecy under DoD for as long as I can remember. Head of NSA reports to Don Rumsfeld and he is usually from one of the four military branches. The NSA follows all of the DoD procurement regulations and their budget is through DoD (and other black budgets). See here Department of Defense (DoD)
Forbidding the interception of enemy communications is directing military operations and acting as CINC, to a reasonable person. Dorf says it isn't. That's all he offers in this article.
"Rules and regulations" is mostly about the UCMJ. The Founders were very concerned that the feds would inflict harsh treatment upon the militias to demoralize them or force them to their will.
"rules clearly designed for the protection of U.S. citizens."
Congress cannot change the Constitution without amending it no matter how much they think it is for our "protection".
Of course they have the power to have their say about the Fourth Amendment- which does limit the president's inherent powers, and theirs- by passing laws. Which I think is the best light to look at FISA in, whatever one's opinion on it's force.
You're off on the wrong foot right from the get-go. Congress isn't forbidding it. It's providing the rules on how it's to be done in order to protect U.S. citizens from arbitrary use of that power. Same reason for the UCMJ. Both are fully consistent with the intent behind that grant of power. Letting the President eavesdrop on whoever he claims is the enemy, without any possible checks or balances from any other branch of government, is most certainly not consistent with the intent behind any part of the Constitution.
"to be done" and "to be conducted", mean the same to me. "Surveillance of enemy communications" is undoubtedly a neccessary part of conducting war. It is operational and not under congress's "rules and regulations" power. Which is about the treatment of those in the military.
Dorf might as well claim it is under the "promote the general welfare" clause!
Sure, congress can express by laws how it thinks the Fourth Amendment is best protected, you're own solid ground there. So can the president by acts, and the courts by rulings.
They're equal branches. They all get their say in their own way. None of them have the power to change the Fourth Amendment, or any part of the Constitution, except by amendment.
Congress can investigate the president's use of his powers. They can impeach, and remove him if they wish.
They can't change the Constitution, except by amendment, to fob that duty off onto the courts. Which is what Dorf would have them do by law.
They seem pretty much the same to me, too. I used the terms interchangeably in both quotes. Providing the rules for how something is to be done is very different from issuing orders and directives to do this that or the other thing. That's acting as CinC. Laying down laws is acting as a legislature.
Under the Articles of Confederation.
I wish opponents would quit trying to re-write the Constitution and work on the Fourth Amendment angle. That has some connection to reality.
"The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive." -J Story
I'm severely hampered by actually knowing the purposes of the parts of the Constitution.
Dorf isn't. They mean whatver he wants them to.
Yup, and as shown by your quote, the purpose of that grant of power was the protection of American citizens against the arbitrary exercise of the President's powers as commander in chief.
There is another whole set of laws passed by Congress and signed by the President. It was first done in the 1700s.
It was most recently amended in the 1800s where they added that Citizens could be executed under a military commission.
That was last done during WWII when six German saboteurs were landed on the East coast, were captured and were executed. One of those executed was an American Citizen.
The laws of war do not contain any of the Bill or Rights, or right of habeas corpus and are administered by the Military. (The laws of war are not the UCMJ)
But who makes the laws of war? I know nowadays they're mostly provided by the Geneva Conventions, but prior to that, which branch of government was responsible for drawing them up, the legislative or executive?
Or...FISA is for domestic criminal cases involving spying, falling under Congress' authority; and what we are discussing is part of executing a war, falling under the Executives authority. The only gray area is if the intelligence is presented as evidence in a criminal case.
It's better IMHO to judge it by whether it's a reasonable defensive military operation than whether it is solely restricted to combatants.
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