In his guest op-ed explaining his NSA compromise bill, Sen. Arlen Specter misstates a basic point of constitutional law, according to the Anon Lib and Marty Lederman. Over to the legal eagles.
UPDATE: OK, Marty Lederman is posting at Jack Balkin's site, rather than Jack Balkin himself as my post originally mis-stated. In news which I at least consider to be related, a member of the household broke the Just One Minute coffeemaker over the weekend.
One correction down, one to go.
MORE SUBSTANTIVELY: Sprecter's use of the phrase "inherent authority" *may* be a cause of the confusion, since the phrase is ambiguous - Orin Kerr had thoughts on that. The battle rages here in the comments.
It'll take me a while to go back and find the cases, but I think both anon lib and the other guy are ignoring the three appellate court cases to which Specter refers. As I recall, all three (or at least two) of those cases are post-FISA (and post-Youngstown), and indeed one of them was decided by the FISA Court of Appeal. They also ignore the fact that every president since FISA was enacted has maintained that the statute cannot infringe their authority to gather foreign intelligence.
They also ignore the highly practical distinction between the issue facing the Court in Hamdan and the one that would face it in the NSA matter. In the latter case, should the Court rule against the administration, it would require the cessatin of an ongoing and highly successful program in an area vital to national security. I have doubts as to whether Justice Kennedy would go that far, and Justice Breyer might be reluctant to do so as well. They are certainly not going to hold that the matter is controlled by Hamdan.
They'll certainly get no argument from me on the question whether Specter is a consitutional law ignoramus. Anyone who recalls his painfully stupid display during the Bork confirmation hearings knows the answer to that one.
Posted by: Other Tom | July 24, 2006 at 09:59 AM
I think this may be due to something to do with his Decade of the Brain Award.
Posted by: Neo | July 24, 2006 at 09:59 AM
I think this brings it into focus.
Senator Specter said: “I have beaten a brain tumor, bypass heart surgery and many tough political opponents; and I’m going to beat this [Hodgkin’s disease] too.
And to think, he was my lesser of two evils.
Posted by: Neo | July 24, 2006 at 10:06 AM
Thanks for the link, Tom. Also, FYI, I think the post at Balkinization is by Marty Lederman, not Jack Balkin.
Other Tom,
The cases you are refering do NOT address the question of whether FISA unconstitutionally infringes on the president's power (because no one even argued that until recently). They are pre-FISA cases, and the FISC court of review case didn't address the question. But all this is beside the point.
What Specter doesn't understand is that the president's "inherent authority" is not a static thing. Most of the president's inherent authority is just default authority, the authority to act in the absence of a statute on point. Only a small subset of that inherent power is exclusive power, i.e., power the president retains even in the face of a statutory prohibition. In other words, the president's inherent authority pre-FISA is not the same as his residual authority post-FISA. This is basic constitutional law, it's the Youngstown framework. And as the decision in Hamdan illustrates, all nine of the current justices on the Court accept this framework as controlling.
What Specter says in his op-ed is contradicted by a vast and uncontroversial body of Supreme Court precedent.
Posted by: Anonymous Liberal | July 24, 2006 at 10:12 AM
Sorry, Other Tom, but A.L. and Lederman have it right. The dicta in the In re Sealed Case (the most recent appellate FISC case), which Specter and Admin-defenders so often rely on, stated something along the lines of "assuming the Prez has inherent authority to gather foreign intelligence, FISA cannot encroach on that power."
Well, frankly, that's a misstatement of the law, as Hamdan recently made clear.
The first inquiry is whether Congress has the power to pass the law at issue. There is absolutely no question that Congress has the Constitutional power to enact FISA, under its interstate commerce power, and/or its power to make rules governing the military, and and/or (for good measure) the necessary and proper clause.
Once a law has been duly enacted by Congress, and is clearly within its constitutional power, then regardless of what "inherent" powers the President may have, he is bound to follow that law.
I assume Specter is just confused -- although my understanding is that he was an excellent lawyer in his day, which makes his confusion hard to understand. It's possible, I suppose, that he's trying to pull a fast one here, and misstate the law on purpose. But his the final paragraph of his op-ed, where he basically says "if anyone has a better idea, let's hear it," makes me think he's honestly trying to broker a solution but simply got twisted up in this (admittedly somewhat dense) constitutional law issue.
Posted by: Wonderland | July 24, 2006 at 10:15 AM
Specter is a lawyer like Joe Biden is a statesman. The bar ain't exactly set to Olympic standards for the Senate these days.
Posted by: richard mcenroe | July 24, 2006 at 10:23 AM
Yes, Specter is confused, and the op-ed poorly written.
But I think it is also clear that Anonymous Liberal is misstating Specter's argument. Specter is talking about "exclusive authority" - authority he has even in Youngstown category 3 cases. If you use the words "inherent authority" the way that Anonymous Liberal does (and I don't think that a universally accepted way of using that term), then when you read the words "inherent authority" in the op-ed, you need to understand that Specter is using the term differently than Anon Liberal is, and accordingly must substitute the words "exclusive authority".
Clearly the three cases to which Specter refers in the introduction of his op-ed are not cateogry 3 cases; they are category 2 cases. But that's why Specter doesn't say that the cases "HOLD" that the president has inherent authority. He says that the cases "suggest" that he may have that power. Which is right - the language used in those cases would certainly be similar arguments to those a court would use to hold that the President has authority in category 3, not just category 2.
Anon Liberal needs to ratchet down the rhetoric and understand that HE'S confused too.
Posted by: A.S. | July 24, 2006 at 10:33 AM
Not sure I'm buying the applicability of the Youngstown analysis by these gents. Both suggest Congress has the power to limit the President's Constitutional authority (and has done so, per FISA). Both also make much of Hamdan footnote 23:
But I'd suggest Hamdan is a case where Congress has the greater Constitutional authority over the matter, with its explicit power:Further, both imply the Youngstown decision means Congress can enact statutory limits on Presidential power, but that's not really what it says:Note that it doesn't say "has to follow laws enacted by Congress" or anything similar. And obviously if any act by Congress conflicts with the Constitution, it's invalid.Applying that to the NSA case, it's not at all clear what powers Congress has over the matter. The general legislative power does not seem to apply to foreign intelligence gathering, and "government and regulation of the land and naval forces" is a bit of a stretch as well. Intercepting enemy intelligence is clearly a Commander in Chief issue, which would seem to indicate the President has the bulk of the related Constitutional authority. Further, contra Youngstown, this is a wartime exercise of that power, and directly related to protecting US citizens. If Congress doesn't have Constitutional authority over the particular issue, then Specter and the Sealed Case analysis would seem to be correct:
Posted by: Cecil Turner | July 24, 2006 at 10:33 AM
Once a law has been duly enacted by Congress, and is clearly within its constitutional power, then regardless of what "inherent" powers the President may have, he is bound to follow that law.
Is this really true? And I'm asking this in a non-snark manner. It's a sincere question.
The Constitutional powers of the Executive may be limited or circumscribed simply by legislative acts or statutes?
If Congress can do this to "inherent" powers then may they do this to the explicit powers given the Executive?
Hmm, I'm sceptical. But open to being persuaded.
SMG
Posted by: SteveMG | July 24, 2006 at 10:34 AM
Hmmmm.
"Arlen Specter (R) - IANAL"
Posted by: ed | July 24, 2006 at 10:36 AM
Congress can pass whatever law it pleases. President Bush will continue to fight the War on Terror as he sees fit with or without their help. See torture agreement and Bush'e exception to same. I trust Bush more than Congress to keep us safe. Too many wusses got elected to represent liberal states.
Posted by: maryrose | July 24, 2006 at 10:37 AM
"Once a law has been duly enacted by Congress, and is clearly within its constitutional power, then regardless of what 'inherent' powers the President may have, he is bound to follow that law." This statement begs the question of whether the Congress acted "clearly withing its constitutional power."
I think the Fourth Circuit sounded a cautionary note for those espousing your absolutist position:
“For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], ‘unduly frustrate’ the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.”
Truong v. US, 4th Cir. 1980
You can argue that Truong is no longer good law after Hamdan, but I sure wouldn't. And consider Hamdi:
“The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force].”
Hamdi v. Rumsfeld, 542 US 507 (2004)
Thus, in Hamdan the Court said the AUMF didn't extend to the creation of military tribunals. In Hamdi, it said that it did extend to the indefinite detention of American citizens. Is the gathering of foreign intelligence closer to setting up tribunals, or is it closer to detaining Americans indefinitely? Anon Lib et al. seem to suggest that it's not even a close call. I think they're wrong.
Posted by: Other Tom | July 24, 2006 at 10:39 AM
Just to follow up my last comment, where I said that when Specter says "inherent authority" he is using it in the sense of exclusive authority - authority that the President holds even in a Youngstown category 3 situation.
Specter is using the term "inherent authority" in the same way that Alberto Gonzales wazs using the term when he was before Congress in February. At that time, Orin Kerr discussed the two ways that the term "inherent authority" could be used.
That Anon Liberal wants to use the term one way doesn't grant him license to imply that that's the ONLY way the term may be used - he needs to acknowledge that Specter is simply using the term the other way.
Posted by: A.S. | July 24, 2006 at 10:43 AM
A.S.,
Respectfully, I think you need to re-read Specter's op-ed. Here's what he wrote:
The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's
"reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit
presidential power.
Specter clearly isn't acknowledging any difference between a category 2 situation and a category 3 situation. And the only reason he thinks the pre-FISA cases are not dispositive is because they are Court of Appeals cases, not Supreme Court cases. Nowhere in the piece does he indicate that he understands the difference between the extent of the president's power in the absence of a statute and the extent of his power in the face of a statory prohibition. You're giving him far too much credit.
As for Other Tom's suggestion that Congress lacks the Article I power to pass FISA, that claim is frivolous. Both the Commerce Clause and the power to make rules governing the armed forces are clearly applicable here based on past precedent. The commerce power underlies nearly ever telecommunications law. And the power to make rules regarding the armed forces has to apply if the president's power as commander-in-chief of the armed forces underlies his own claim to inherent authority.
This particular argument is so specious that even the Bush administration has not and will not make it in court.
Posted by: Anonymous Liberal | July 24, 2006 at 10:53 AM
That Anon Liberal wants to use the term one way doesn't grant him license to imply that that's the ONLY way the term may be used - he needs to acknowledge that Specter is simply using the term the other way.
A.S., I fully acknowledge that the term "inherent authority" is often used to mean "exclusive authority." I think that's pretty clearly what the court in Sealed Case did, and it's why that piece of dicta has caused so much confusion. But with respect to Specter's piece, you are giving him far too much credit. Go re-read the op-ed. Specter does not mean "exclusive authority." He writes:
If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power.
If the Appeals Court cases he refers to are "correct," it means nothing of the sort. Those cases had to do with inherent authority in the sense that I'm using it, not exclusive authority. Specter is clearly conflating the two. Find me even one line in Specter's op-ed which even hints that he understands this crucial distinction.
Posted by: Anonymous Liberal | July 24, 2006 at 10:59 AM
make rules governing the armed forces
Sorry, where does Congress get the authority to "govern" the armed forces? I though this was settled in Youngstown (among other cases). And by "govern", I assume this means "command" as well?
Congress has the authority to provide armed forces through funding (or not provide them). But they cannot "govern" those forces once they have been provided to the Commander in Chief.
If Congress can "govern" the armed forces, that renders meaningless the commander in chief powers of the president. He's no longer C-in-C, Congress is.
This is not just taking away or limiting the inherent powers of the Executive, this is rendering the Executive impotent.
May Congress tell (or "govern" or "command") the Navy to protect the shipping lanes in the Atlantic Ocean but not the Pacific Ocean? I hope you're not arguing that they have this authority?
SMG
Posted by: SteveMG | July 24, 2006 at 11:10 AM
Specter clearly isn't acknowledging any difference between a category 2 situation and a category 3 situation. And the only reason he thinks the pre-FISA cases are not dispositive is because they are Court of Appeals cases, not Supreme Court cases. Nowhere in the piece does he indicate that he understands the difference between the extent of the president's power in the absence of a statute and the extent of his power in the face of a statory prohibition. You're giving him far too much credit.
Anon Liberal, I don't think that you are facing the fact that Specter says in the second paragraph of the op-ed that the three Appeals Court cases "suggest" - NOT "hold" - that the President has inherent authority (again - meaning exclusive authority). Specter cannot be arguing as you say he is because then those three cases would "hold" that the President has inherent authority, rather than "suggest" it.
Look, do you accept that there are two ways of using the term "inherent authority"? One is the way you are thinking of it, and the other is the way that Alberto Gonzalez (as I pointed out above) and others use it - meaning (in your way of thinking) "exclusive authority"? Pretty simply question - not a legal question, just whether you accept that people use the term in different ways?
If so, then reread the op-ed with the term used the other way from how you are thinking of it. Just, accept, arguendo, that Specter is using it that way. Well, gee whiz, then Specter doesn't seem like a Constitutional idiot. If so, then maybe you should just interpret the op-ed that way.
Call it the canon of op-ed avoidance. If there are two ways of reading an op-ed (for example, if an op-ed uses a term that can be interpretted in either of two ways), and one way makes the author look like an idiot and the other makes the author seem like not an idiot, choose the reading that makes the author seem like not an idiot. I know you think there is an exception for Republicans, but there isn't.
Posted by: A.S. | July 24, 2006 at 11:11 AM
Anon Liberal, I think we cross-posted, but my response applies to your latest comment as well.
Posted by: A.S. | July 24, 2006 at 11:13 AM
Mr. Mg - Congress could certainly deny funding for the defense of the Pacific shipping lanes, in which case the President's option is what?
Posted by: Don | July 24, 2006 at 11:16 AM
Cecil writes:
"it's not at all clear what powers Congress has over the matter. The general legislative power does not seem to apply to foreign intelligence gathering, and "government and regulation of the land and naval forces" is a bit of a stretch as well. Intercepting enemy intelligence is clearly a Commander in Chief issue, which would seem to indicate the President has the bulk of the related Constitutional authority. Further, contra Youngstown, this is a wartime exercise of that power, and directly related to protecting US citizens.
You skipped over the essence of the issue, and simply assumed the conclusion that supports your argument.
Congress has power to regulate the interception of electronic communications that cross US borders and state lines. This is not controversial.
Congress also has power to make rules for the regulation of land and naval forces, i.e., the military. The NSA is part of the DOD, i.e., the military. Heck, the NSA is a creature of congressional statute, i.e., was created by Congress. To suggest that Congress cannot make rules governing agencies that it created itself is ludicrous.
Once we have a valid statute, your vague references to this so-called "Commander in Chief issue," "wartime," and the "protection of US citizens" have no legal import. This should go without saying, but laws do not cease to operate because a war is on. This is especially true where the statute in question has an express provision regarding its own operation during wartime.
As for SteveMG's questions: "The Constitutional powers of the Executive may be limited or circumscribed simply by legislative acts or statutes? If Congress can do this to "inherent" powers then may they do this to the explicit powers given the Executive?"
Explicit constitutional powers cannot be affected by Congress, but if you look at Article II, there's very few explicit powers. So, Congress couldn't pass a law eliminating the veto, nor could it pass a law naming the Senate Pro Tem the Commander in Chief, nor one that allowed the Speaker of the House to sign treaties. (Of course, these changes could be effected via Constitutional amendment.) But beyond those clear areas of explicit Contitutional authority, Congress can pass whatever law is within its powers -- even if it hems in what the Prez might constitutionally do in the absence of a statute -- and the Prez must faithfully execute that law. That's how the whole system works.
Posted by: Wonderland | July 24, 2006 at 11:17 AM
Both the Commerce Clause and the power to make rules governing the armed forces are clearly applicable here based on past precedent.
Isn't this the commerce clause?
What does any of this have to do with commerce?
Posted by: Extraneus | July 24, 2006 at 11:18 AM
Mr. Mg - Congress could certainly deny funding for the defense of the Pacific shipping lanes, in which case the President's option is what?
Yes, that's my point.
Congress can clearly de-fund (or not fund) military operations. That's explicit in the Constitution. They may say, "No funds may be used for operations in the Pacific." And the Commander-in-Chief then must follow (since he doesn't have the ability to use the Navy in the Pacific).
But once they fund the operations, they may not command those operations and order the armed forces around. Clearly we cannot have Congress planning the day-to-day operations of the military, especially in the middle of a war.
I believe it was Justice Jackson who said the President is in command of the military but it's Congress that gives him that military. If Congress doesn't like what the military is doing, cut the funding.
SMG
Posted by: SteveMG | July 24, 2006 at 11:22 AM
Um exactly...putting ultimate power in the hands of a legislature rather than an executive was the entire point of the American Revolution.
Posted by: Don | July 24, 2006 at 11:22 AM
"As for Other Tom's suggestion that Congress lacks the Article I power to pass FISA, that claim is frivolous."
Nowhere did I make such a claim. I say only that where the statute purports to circumscribe and "unduly frustrate" inherent presidential power, it may fail. Youngstown informs the analysis, but clearly does not decide the outcome. You ignore the Fourth Circuit case altogether, as well as the reservations of inherent presidential power notwithstanding FISA as announced by Griffin Bell at the time of the statute's enactment, the same reservation as expressed by Jamie Gorelick, and etc. Those reservations establish a lengthy history of the assertion of this presidential prerogative, one that was lacking in the case of the tribunals.
I am aware of no case in which the Commerce Clause was held to apply to the gathering of foreign intelligence, nor do I accept the argument that the power to make rules regarding the armed forces reaches the foreign intelligence issue.
Anon Lib seems rather uncomfortable with the AUMF issue, inasmuch as he doesn't discuss it at all. If I were rabidly seeking a Supreme Court determination that the NSA program is unlawful, I would be very leery of the AUMF argument as affording the Court a convenient and easy way around deciding the open consititutional issue.
Posted by: Other Tom | July 24, 2006 at 11:25 AM
O/T
The bar exam is this Wednesday and Thursday. It's hard to let a July end without bowing to those two days of terror past.
Posted by: Jane | July 24, 2006 at 11:36 AM
Congress has power to regulate the interception of electronic communications that cross US borders and state lines. This is not controversial.
Are you claiming enemy communications in wartime is "interstate commerce"?
Congress also has power to make rules for the regulation of land and naval forces, i.e., the military.
That's distinct from operational tasking, and mainly regards organizational issues and the UCMJ. Again, it's a bit of a stretch, and certainly less compelling than the CinC role of the President for the applicable issue.
That Anon Liberal wants to use the term one way doesn't grant him license to imply that that's the ONLY way the term may be used . . .
Yes, it's fairly obvious from reading various legal comments that the schoolbook solution distinguishes "inherent" power from "exclusive" power. But that terminology is not universal, and in fact most who claim "inherent" power use it in a different sense. When SCOTUS used the term to discuss Judicial powers, they mean powers that "cannot be dispensed with . . . because they are necessary to the exercise of all others." Clark in his Youngstown concurrence notes the varied terminology:
In any event, it's important to note the various uses of the term can impede communication.Posted by: Cecil Turner | July 24, 2006 at 11:41 AM
(At least that's the way I interpret the explanations of my betters in this regard!)
cathy :-)
Posted by: cathyf | July 24, 2006 at 11:48 AM
"putting ultimate power in the hands of a legislature rather than an executive was the entire point of the American Revolution."
Interesting theory - who passed the Stamp Act? Who passed every tax act that the founders abhorred? Who limited the makeup of the House of Commons in a manner that denied representation on an electoral basis to colonists?
Hint - it wasn't Georgie 3.
Lord North was damned in the colonies as often as King George ever was. As was the Tory party which controlled the House of Commons.
Posted by: Rick Ballard | July 24, 2006 at 11:55 AM
Interesting theory - who passed the Stamp Act?
Concur (at least in the sense that this implies Congress is necessarily the good guy in a checks-and-balances dispute). Most today take for granted that Congress is the antidote to tyranny. It's interesting to note that some of the Founding Fathers saw it as exactly the opposite. Per Federalist 51:
Posted by: Cecil Turner | July 24, 2006 at 12:00 PM
Now that you all have argued about Youngstown sufficiently, how about we get to the real misstatement of basic constitutional law?
See, I have no problem with Jackson's scheme in Youngstown. What I have a problem with is that the Supreme Court decided that it has ultimate authority to decide which powers constitutional belong to which branches, and that spineless legislative twits like Specter absolve themselves of their coequal duty to interpret the constitution. If you believe that only the courts can decide how constitutional powers should be distributed, then you necessarily subordinate the executive and the legislature to the judiciary.
Forgive me, but I think it's unseemly when Congressmen slaver over how much of their own authority they can give away.
Posted by: AT | July 24, 2006 at 12:08 PM
Cecil:
"Are you claiming enemy communications in wartime is "interstate commerce"?"
Sure, since every single electronic communication that travels across a state or national boundary is a regulable one. Congress has the authority regulate all of them, so it can generally outlaw interception and put conditions on the interception of a subset.
Also, "That's distinct from operational tasking, and mainly regards organizational issues and the UCMJ. Again, it's a bit of a stretch, and certainly less compelling than the CinC role of the President for the applicable issue."
This is not a legal argument. This is Cecil Turner being creative in defending Bush's actions. You're creating distinctions ("operational tasking" vs. "organizational issues") that have no basis in law. For instance, the UCMJ, among other things, specifically regulates what a soldier can and cannot do on the field of combat. Is that "operational tasking?" Of course not. It's setting rules for how the military does business. This is no different from setting rules on how a specific branch of the military, the NSA, does its business when US persons are involved, e.g., via a specialized warrant procedure in front of a specialized secret court.
Are you seriously taking the position that Congress lacks authority to set, by statute, operational rules for an agency that Congress itself created, by statute?
Posted by: Wonderland | July 24, 2006 at 12:10 PM
Um exactly...putting ultimate power in the hands of a legislature rather than an executive was the entire point of the American Revolution.
I though putting ultimate power in the hands of the people was the point of the American Revolution? Our constitutional innovation was recognizing that sovereignty lies with the people, rather than with the legislature, i.e. Parliament.
Posted by: AT | July 24, 2006 at 12:14 PM
Are you seriously taking the position that Congress lacks authority to set, by statute, operational rules for an agency that Congress itself created, by statute?
Didn't Congress create the Department of Defense?
Posted by: AT | July 24, 2006 at 12:16 PM
Mr. Ballard you can't be serious?
Let's refer to the Declaration of the Independence itself:
"The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world."
It goes on to list the offenses King George has committed. Parliament is never mentioned. You should read it sometime.
And Mr. Turner, I never said that Congress was always the good guy in a checks and balance dispute. I detest many acts of Congress.
But to argue that ultimate power does not rest in the legislature is rather ridiculous.
Posted by: Don | July 24, 2006 at 12:23 PM
'If you believe that only the courts can decide how constitutional powers should be distributed, then you necessarily subordinate the executive and the legislature to the judiciary.'
Exactly, and Bush is as much to blame (if not more) for letting the Court get away with its nonsense.
Posted by: Patrick R. Sullivan | July 24, 2006 at 12:24 PM
Specter cannot be arguing as you say he is because then those three cases would "hold" that the President has inherent authority, rather than "suggest" it.
A.S., I'm not sure why you are going out of your way to put words in Specter's mouth that he clearly doesn't mean. He is not making a distinction between the "holdings" in those cases and the present factual scenario. Rather, he is acknowledging that those cases are lower court cases and are therefore not binding law. Therefore, they merely "suggest" how the Supreme Court would rule on the issue (because the S.Ct. has never addressed it).
But what Specter clearly fails to understand is that whatever those cases suggest about how the Supreme Court would rule on the category 2 question, they clearly have nothing whatsoever to say about how it would come down on the category 3 question.
You are ignoring the key passage of Specter's piece, which I quoted for you twice. No matter what meaning of the term "inherent authority" you are using, there is no way to read that paragraph so that it makes sense or accurately reflects the Youngstown framework. I can't even believe you are arguing this point.
Posted by: Anonymous Liberal | July 24, 2006 at 12:29 PM
This is not a legal argument. This is Cecil Turner being creative in defending Bush's actions.
That's okay, cuz IANAL. And this is a wonderland non-defense of an assertion you made and I challenged. You claim interstate commerce or government/regulation of armed forces applies to NSA intercepts. Support your claim. Or don't. So far, it's unconvincing.
For instance, the UCMJ, among other things, specifically regulates what a soldier can and cannot do on the field of combat.
Yes, which is obviously precisely in accordance with its power to make "rule" for "government" of armed forces.
This is no different from setting rules on how a specific branch of the military, the NSA, does its business when US persons are involved, e.g., via a specialized warrant procedure in front of a specialized secret court.
I think it's quite a lot different. And I fail to see why your assertion that it is not has any more legal weight.
Are you seriously taking the position that Congress lacks authority to set, by statute, operational rules for an agency that Congress itself created, by statute?
Does Congress have similar authority over all the armed forces (also created by statute)? And I also think that When the Congress takes measures incompatible with the expressed or implied will of the President, its power is at its lowest ebb, for then it can rely only upon its own constitutional powers minus any constitutional powers of the President over the matter. The concept is perfectly reversible.
Posted by: Cecil Turner | July 24, 2006 at 12:33 PM
And Mr. Turner, you might also wish to refer to Federalist No. 8:
Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it.1 Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority.
Posted by: Don | July 24, 2006 at 12:37 PM
And Mr. Turner, I never said that Congress was always the good guy in a checks and balance dispute.
You seem to be implying they are presumed to be correct (i.e., that their power ought to prevail) which is what I meant.
But to argue that ultimate power does not rest in the legislature is rather ridiculous.
Depends on the definition of "ultimate." And I can't see a definition that makes it sensible.
Posted by: Cecil Turner | July 24, 2006 at 12:38 PM
It is unfortunately the case that the Founding Fathers exceeded by a million fold the intellectual gifts of the present day Congress, and while they might not have anticipated the technology of the NSA program, I seriously doubt that they'd deny the President the power to intercept messages between our enemeies and persons residing here without lengthy travel to a court in the Capitol for permission to do so.
Posted by: clarice | July 24, 2006 at 12:39 PM
Congress can impeach and remove from office any Judge or President.
Congress can strip jurisdiction from the Supreme Court and override a president's veto.
The Constitution cannot be amended unless Congress approves (absent a new Constitutional convention).
Now list the overarching powers of the President or Supreme Court and you'll see what I'm getting at.
Posted by: Don | July 24, 2006 at 12:45 PM
Posted by: Cecil Turner | July 24, 2006 at 12:47 PM
Well Don, I believe that Congress did strip the Court of jurisdiction to hear habeas writs from Gitmo and the Ct just ignored that.
As for this:
"The Constitution cannot be amended unless Congress approves (absent a new Constitutional convention)." I can think of a number of cases where the SCOTUS found things in the Constitution I haven't been able to find with the most microscopic reading.
I am not trying to deflect from the discussion--simply pointing out that some peoples' black and white is other peoples' grey.
Posted by: clarice | July 24, 2006 at 12:52 PM
A canard-Under the law the President has 72 hours to get a warrant after the fact.
Nevertheless, I'm quite willing to cut the President all the slack. I just wish to keep the tradeoff between safety and liberty as a constant policy consideration.
Posted by: Don | July 24, 2006 at 12:52 PM
Lots of good points, but way too many absolutes. (Also, I think it's a stretch to call Youngstown basic constitutional law.)
A couple of hypotheticals:
Could the Senate enact a rule that no vote could be held ratifying a treaty unless the House has already approved the treaty by majority vote?
Could Congress enact a law (assume an override of a presidential veto) that declared that no presidential appointee to the Executive Branch shall receive any salary or other remuneration for any fiscal year unless named in a law passed for that purpose during that fiscal year?
Could Congress enact a law requiring the president to appoint judges from a list approved by vote of the Congress? Would it make a difference if the law were tied to the budget power?
Posted by: David Cohen | July 24, 2006 at 12:53 PM
One more thing:
Are you seriously taking the position that Congress lacks authority to set, by statute, operational rules for an agency that Congress itself created, by statute?
The lower federal courts are created by Congress, which need not do so.
Posted by: David Cohen | July 24, 2006 at 12:57 PM
I agree with you Clarice. Marbury vs. Madison was the original non-Constititional power grab, but that was a long time ago.
Posted by: Don | July 24, 2006 at 12:58 PM
"Sure, since every single electronic communication that travels across a state or national boundary is a regulable one. Congress has the authority regulate all of them, so it can generally outlaw interception and put conditions on the interception of a subset."
Simply another formulation that avoids the issue. The fact that electronic communications of a particular kind may be "regulable" simply does not shed light on the issue of whether the president has a constitutional authority that is beyond Congress's power to regulate.
Posted by: Other Tom | July 24, 2006 at 01:05 PM
A canard-Under the law the President has 72 hours to get a warrant after the fact.
Not a canard. There is still a requirement for the AG to determine there's probable cause to believe that the person on the domestic end is an agent of a foreign power prior to intercepting the communication (and that's the impractical bit).
Posted by: Cecil Turner | July 24, 2006 at 01:08 PM
David Cohen,
Your examples are inapposite. Those are examples of areas where the constitution has clearly given the president exclusive authority. But there is nothing in the constitution or the ample amount of case law on this subject that suggests the president has the exclusive authority to set the rules regarding surveillance of U.S. citizens.
In fact, there are any number of provisions in the constitution which have been interpreted as giving exactly this sort of authority to Congress, and it is well established that in such areas of overlapping authority, duly enacted statutes trump whatever default authority the president had. He must follow the law. That was the ruling in Hamdan, and it is equally applicable to the NSA situation.
Posted by: Anonymous Liberal | July 24, 2006 at 01:09 PM
Constitutional law respecting the power of the respective branches never has been much more to me than the reflection of the power struggles of the day.
I think that those who cling to the primacy of the Courts are unable to move outside the political struggles of the late 60's.
Posted by: clarice | July 24, 2006 at 01:11 PM
Ok I agree that seems impractical. The remedy is for Congress to amend the law, not the President to just ignore it under some vague and undefined power. And we're back to square 1.
Posted by: Don | July 24, 2006 at 01:14 PM
A.S., I'm not sure why you are going out of your way to put words in Specter's mouth that he clearly doesn't mean. He is not making a distinction between the "holdings" in those cases and the present factual scenario. Rather, he is acknowledging that those cases are lower court cases and are therefore not binding law. Therefore, they merely "suggest" how the Supreme Court would rule on the issue (because the S.Ct. has never addressed it).
(emphasis added)
Anon Liberal,
I'm not sure why you keep insisting that Specter is addressing the fact that the Court of Appeals decisions are lower court decisions, rather than Supreme Court decisions. There is nothing in the op-ed that states - indeed, nothing even implies - that Specter thinks those appellate court decisions are not binding because the Supreme Court might someday take a different view. (Heck, the words "Supreme Court" are not even used in the op-ed. So it seems to me that YOU are putting words "in Specter's mouth", not me.)
And since when is a Court of Appeals decision not "binding law"? That's certainly not what I was taught many years ago in law school! But maybe the law has changed in the meantime and Court of Appeals decisions are just suggestions. More recent law school grads, help me out.
I would argue, rather, that the Court of Appeals decisions to which Specter refers contain arguments and language that do not apply solely to the holdings in those cases - that such arguments and language could apply more generally. And those arguments and language could very well apply to hypothetical Youngstown Category 3 situations just as they applied to the real Youngstown Category 2 situations that those cases actually addressed. And it is those arguments and language that Specter believes "suggest" (to use the word in the op-ed) that the President might have authority to conduct the NSA program even under Category 3. Again, because they are arguments and language those cases, those arguments and language are merely suggstive, not holdings.
On a larger point, though, I'll just note that while you are furiously denying that Specter cannot possibly use the term "inherent authority" to mean that for which you would use the term "exclusive authority", you haven't addressed my question - what if you are wrong and Specter DOES use the term "inherent authority" to mean exclusive authority? In that case, isn't Specter's op-ed not the idiocy you seem to think it is?
Posted by: A.S. | July 24, 2006 at 01:18 PM
Cecil:
"Or do we really want an Executive forced to show probable cause and get warrants before intercepting enemy communications in wartime?"
When such communications emanate from a US Person in the US, then FISA unequivocally answers this question in the affirmative.
To which Cecil replies: "If that's really what FISA meant, it's unconstitutional.
Wrong. Maybe a bad law. Maybe putting us in more danger of terrorism. Maybe an unwise restriction on Presidential power. But not, under any legal analysis based on applicable precedents, unconstitutional.
It's been mentioned a lot in the 'sphere, but it bears repeating. No one, in the nearly 30 year history of FISA, argued that it was an unconstitutional encroachment on Article II until George W. Bush admitted to having violated it. (Of course, some people, including many conservatives, did previously argue that it was unconstitutional because it gave the Executive too much power and therefore violated the Fourth Amendment.) That FISA is all of a sudden this unconstitutional monstrosity that improperly binds the benevolent hands of George W. Bush is a legal fantasy, conjured up by political allies to shield him from accusations of wrongdoing.
Posted by: Wonderland | July 24, 2006 at 01:20 PM
Maybe it's a pragmatic reading to save our nation during a period of unprecedented asymmetrical warfare.
Posted by: clarice | July 24, 2006 at 01:27 PM
Ok I agree that seems impractical.
Fooey. You're too sensible to argue with.
The remedy is for Congress to amend the law, not the President to just ignore it under some vague and undefined power.
Looks like they're in the process of doing just that. But in the meantime, there's a war on. And the history on this one (e.g., consultation and notification procedures) seems to indicate that particular provision of FISA is either not meant to be read that way, or not truly the will of Congress, or they've implicitly agreed to circumvent it.
But not, under any legal analysis based on applicable precedents, unconstitutional.
There are precious few applicable precedents, and most of those (e.g., Youngstown and Hamdan) appear to be in areas where Congress clearly has the greater Constitutional authority. I'm not sure what the correct legal answer is, but would be tempted to quote Lichter v. United States
Posted by: Cecil Turner | July 24, 2006 at 01:29 PM
But there is nothing in the constitution or the ample amount of case law on this subject that suggests the president has the exclusive authority to set the rules regarding surveillance of U.S. citizens.
I think your use of the world "ample" is incorrect in this context. As far as I'm aware there is NO caselaw on the question of whether the President has exclusive authority to use surveillance of US persons for foreign intelligence purposes - other than the dicta in In Re Sealed Case, which SUPPORTED the idea that the President has such exclusive authority. Can you cite cases that state otherwise?
Posted by: A.S. | July 24, 2006 at 01:29 PM
To the original post:
Which question comes first?
Is it about judicial review?
Or, is it about getting a better technological understanding of what exactly this "wiretapping" is before addressing the legal question?
Today's technology is so far ahead of anything the old FISA laws touched. Back when phones had cords only.
Posted by: JJ | July 24, 2006 at 01:34 PM
Ah but Cecil Lichter was decided in 1948 before half the nation had the brains sucked out of their heads.
Posted by: clarice | July 24, 2006 at 01:37 PM
There is nothing in the op-ed that states - indeed, nothing even implies - that Specter thinks those appellate court decisions are not binding because the Supreme Court might someday take a different view.
A.S., have you read the op-ed? What do you think Specter means when he says:
If the appellate court precedents cited above are correct, FISA is not the exclusive procedure.
He clearly means "correct" in the sense of correctly anticipating how the Supreme Court would rule. No other meaning makes sense. Plus, the stated purpose of Specter's legislation is to force, ultimately, Supreme Court review of this very question.
Second, your entire point doesn't make sense. Those appellate cases cannot be construed as persuasive authority, even in dicta, for the proposition that the President retains the authority to conduct surveillance inconsistent with FISA, becuase they are pre-FISA cases. Indeed, the Troung case, which dealt with pre-FISA events but was decided post-FISA suggests, in dicta, that FISA is indeed constitutional, the exact opposite of what you're saying.
Finally, even if you take Specter's use of the word "authority" to mean "exclusive authority," his op-ed still makes no sense. He writes:
The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure.
If you substitute "exclusive authority" for "constitutional power" this paragraph still makes no sense! The appellate cases did not address, even in dicta, the issue of "exclusive authority." He is clearly misstating the law.
Posted by: Anonymous Liberal | July 24, 2006 at 01:45 PM
I'm aware there is NO caselaw on the question of whether the President has exclusive authority to use surveillance of US persons for foreign intelligence purposes - other than the dicta in In Re Sealed Case, which SUPPORTED the idea that the President has such exclusive authority. Can you cite cases that state otherwise?
You're correct that there is no case directly on point, i.e., in the context of FISA. But that's because it's such a frivolous argument that until Bush was caught violating the law, no one ever thought to raise it. The ample case law I'm referring to is the case law interpreting the scope of Congressional power under the Commerce Clause, the power to make rules governing the armed forces, and the necessary and proper clause.
Also, it's worth noting the irony of your reliance on Sealed Case. If there was ever a case of someone accidently using the phrase "inherent authority" when they meant "exclusive authority," that was it. And keep in mind, not only was that dicta in a case that found FISA to be constitutional, but even the dicta did not state the FISA actually did encroach on the president's powers. It merely stated the totally unremarkable propisition that a law cannot encroach upon exclusive presidential authority. No one has ever suggested, until very recently, that FISA does in fact encroach on such authority, and the FISA Court of Review did not intend to suggest that it did (if so, it would have been forced to rule the other way).
Posted by: Anonymous Liberal | July 24, 2006 at 01:54 PM
While I don't believe in the doctrine of an imperial executive or a unitary one as the current term of choice seems to be, its rather difficult to see just exactly what the role of the executive is in the checks and balances invisioned by AL and Wonderland. Apparently if the legislative or judicial branch decides that as CinC the executive is responsible for little more than smashing a bottle of champagne on a new aircraft carrier he has little choice but to put his tail between his legs and comply. Just exactly what are the checks or balances that the executive has? If its powers rely solely on what the legislature and the judicial branches allow it, it in effect has none. And if monitoring enemy communications in a time of war is interstate commerce its difficult to see any area that is not 'clearly within its [the legislature's] constitutional power'. It seems a little odd that the executive with its limited explicit powers can have then almost entirely hemmed in by a congress operating with apparently nearly limitless implied powers extending from its explicit ones.
I realize this all is current legal theory; but how it comports with the actual intent of the founders is a little harder to see.
Posted by: Barney Frank | July 24, 2006 at 01:59 PM
don:
We are in a war at this time in case you haven't noticed. War trumps whatever fooling around Congress pretends to be doing. While we wait for them to get their act together ;President Bush will use the executive authority he possesses to the utmost in protecting our country. Everything else is just crossing t's and dotting i's so that we feel our LIBERTY is intact.
Posted by: maryrose | July 24, 2006 at 02:01 PM
Barney,
My first response to your concern would be to point you toward Federalist #51, where James Madison writes:
But it is not possible to give to each department an equal power of self defence. In republican government the legislative authority, necessarily, predominates. The remedy for this inconveniency is, to divide the legislature into different branches
The framers clearly intended for the legislative power, subject of course to the presidential veto, to ultimately trump, at least in areas of shared authority. The president still retains his exclusive powers, however (pardon, veto, treaty-making, strategic war decisions, etc.).
I also think you vastly overstate the degree to which Congress has (or will ever) take away presidential authority. FISA and similar statutes do not attempt to tell the president to spy on or when or why. They are not tactical. They just set basic rules in order to protect the constitutional rights of american citizens. Every other president in modern times has been able to function within these rules, or if they need amendment, they sought amendment. Bush was the first to declare himself unbound by them.
Posted by: Anonymous Liberal | July 24, 2006 at 02:07 PM
I am confused..
Certainly the Prez can't go around shooting down airliners, its illegal.
But if that airliner had been hijacked and was being crashed into the Congress, are you saying the law should stop the Commander in Chief from shooting it down?
Posted by: Patton | July 24, 2006 at 02:12 PM
I'm puzzled here by the argument (as I interpet it) that Congress has plenary power in regulating/governing the armed forces.
Can Congress declare war on Iran and then order the air force to launch three stealth bombers to drop 12 bombs on a Republican Guard barracks in Qom?
Without the approval of the commander-in-chief?
If so, this means that the commander-in-chief powers of the Executive are completely neutered.
Don't want to caricature your position but it sure sounds like you're saying that Congress has this power.
Anon, what may Congress not do when it comes to "governing" or "regulating" the armed forces? Are there any limits to this authority?
If there are none, what authority does the commander-in-chief have over the armed forces?
Puzzled.
SMG
Posted by: SteveMG | July 24, 2006 at 02:16 PM
I'm puzzled here by the argument (as I interpet it) that Congress has plenary power in regulating/governing the armed forces.
Anon, what may Congress not do when it comes to "governing" or "regulating" the armed forces? Are there any limits to this authority?
First of all, we're not so much dealing with the power of Congress as the effect of a duly enacted statute. Statutes only become law when they are signed by a president (or passed by an overwhelming margin). So this isn't Congress vs. the President. It's the Law vs. the President. And the framers were quite clear about how that should come out.
Second, no one is saying that Congress has plenary power over the military. Congress has the power to make rules governing the armed forces, as well as the power to declare war. But it cannot (and has never tried) to make specific tactical decisions like how many bombers to send in and why type, etc.
Moreover, these sort of hypotheticals totally miss the point. FISA, like the UCMJ, does not attempt to make tactical decisions. It merely sets basic rules and procedures for surveillance of U.S. citizens. It could not be more general. The president still makes all the command decisions, ie., who to spy on and when and why.
Posted by: Anonymous Liberal | July 24, 2006 at 02:25 PM
Cheney had the power to order one of the planes shot down on 9/11. Bush can go around Congress and fund his faith-based initiatives programs all he wants. While Congress fiddles,we lose ground on the WOT. Either get on this bandwagon or stand around all day moaning like Kerry about how you could have done everything so much better. I picture{ MISS know it all Madeline Albright} scurrying after Arafat high heels clacking trying to get him to sign on the dotted line. Yeah we all believe the dems would have handled it better. Remember Kerry's infamous "I voted for money and arms for the troops before I voted against it". Don't make me laugh- that vote cost him the election down South.
Posted by: maryrose | July 24, 2006 at 02:25 PM
Barney, you may have a long wait, but I bet when a Democrat is next elected President we will see some new arguments about the breadth of executive power.
Posted by: clarice | July 24, 2006 at 02:31 PM
The president still makes all the command decisions, ie., who to spy on and when and why.
But these command decisions can be vetoed or overruled (warrants denied) by the FIS Court acting through legislative limits. Correct? Based on your view of the authority given Congress in regulating/governing the armed forces?
If Congress amended FISA and said that the commander in chief may not monitor conversations between suspected (or actual) al-Qaeda agents, the commander in chief must stop all surveillance of al-Qaeda?
Apparently that's what you're arguing.
Sorry, I don't see where you believe there are any limits on Congressional usurpation (as I see it) of the commander in chief powers of the president.
SMG
Posted by: SteveMG | July 24, 2006 at 02:35 PM
AL,
"I also think you vastly overstate the degree to which Congress has (or will ever) take away presidential authority...."
Well, this is my point. I am having a hard time seeing a limit on the power of congress or the courts to take away [usurp?] presidential authority, other than a voluntary restraint.
For instance the constitution doesn't say the executive has the power to 'make strategic war decisions' as you state it, only that he is CinC. Following the arguments here its hard to see how they could not define that as narrowly as they see fit.
Additionally, while I agree the founders did envision the legislative body as more equal than the others, that also applied to its relations to the judiciary, perhaps even more so. I don't see much enthusiasm for that argument from liberals, anonymous or otherwise.
"Every other president in modern times has been able to function within these rules, or if they need amendment, they sought amendment. Bush was the first to declare himself unbound by them."
Bush is the first president in the last thirty five or forty years to face an open conflict of this magnitude. Dropping bombs on Serbs in Kosovo is slightly different than a world wide war against radical Islam. And it was previous Presidents attempting to live within over reaching congressional mandates that helped us enter this war pretty well blind. In serious conflicts prior to Viet Nam, congress and the courts let the executive have a relatively free hand and we, not coincidentally, won. As the Viet Nam war progressed, that changed and the results were a disaster.
I hope the left is not intent on another Viet Nam (irony not directed at you personally.)
Posted by: Barney Frank | July 24, 2006 at 02:38 PM
Didn't the Clinton administration argue that it had "inherent authority" to ignore FISA?
Posted by: Extraneus | July 24, 2006 at 02:48 PM
"Barney, you may have a long wait, but I bet when a Democrat is next elected President we will see some new arguments about the breadth of executive power."
clarice,
I'm having a difficult time remembering the left doing anything other than defending the right of boy Clinton to bomb countries without congressional approval. Ditto on the sudden interest the IRS began expressing in Clinton's political enemies. Or using the Antiquities act to create vast new national monuments. Or to undermine an Independent council. Or....ah, what's the point of going on? Most of the left believed in essentially unlimited executive power from 1992-2000 or more accurately 1994-2000.
Posted by: Barney Frank | July 24, 2006 at 02:48 PM
Sorry, I don't see where you believe there are any limits on Congressional usurpation (as I see it) of the commander in chief powers of the president.
Steve, respectfully, don't you see how ass backwards that is? If laws didn't have the power to trump default presidential authority, the president would have almost limitless power. What do you think the framers were more worried about, an imperial executive or a Congress with "too much power"?
But more to the point, do you really think it's impossible for the courts to draw a line? Let's take your own totally unrealistic hypothetical:
If Congress amended FISA and said that the commander in chief may not monitor conversations between suspected (or actual) al-Qaeda agents, the commander in chief must stop all surveillance of al-Qaeda?
First, do you really think anything of the sort would ever happen? Second, if it did, do you really think the courts would hesitate to declare such a law unconstitutional, at least as applied? FISA doesn't prevent surveillance; it merely provides a procedure for doing it legally. If Congress foreclosed surveillance of terrorists altogether, the court would undoubtedly find that such a move goes too far, that it encroaches on the president's residual exclusive authority. It would be like a law saying that president can no longer pardon criminals.
Posted by: Anonymous Liberal | July 24, 2006 at 02:52 PM
Didn't the Clinton administration argue that it had "inherent authority" to ignore FISA?
No. No president has made that argument until Bush, and he made only after he was caught violating FISA.
Posted by: Anonymous Liberal | July 24, 2006 at 02:55 PM
AL: So are we agreed that there are instances in which the President has powers given to him by the Constitution that are not subject to regulation by Congress even if the Congressional action is taken under a grant of constitutional power (for example, Congress can not use its budget power to limit the President's appointment power)?
Posted by: David Cohen | July 24, 2006 at 02:57 PM
cathy :-)
Posted by: cathyf | July 24, 2006 at 03:01 PM
From Chief Justice Roberts' confirmation hearings:
----------------
Senator LEAHY. Do you agree that Congress can make rules that may impinge upon the President’s command functions?
Judge ROBERTS. Certainly, Senator. The point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches. The President is the Commander in Chief, and that meant something to the Founders. On the other hand, as you just quoted, Congress has the authority to issue regulations governing the Armed Forces, another express provision in the Constitution. Those two can conflict if by making regulations for the Armed Forces, Congress does something that interferes with, in the President’s view, his command authority, and in some cases those disputes will be resolved in Court, as they were in the Youngstown case.
Posted by: Anonymous Liberal | July 24, 2006 at 03:09 PM
AL: So are we agreed that there are instances in which the President has powers given to him by the Constitution that are not subject to regulation by Congress even if the Congressional action is taken under a grant of constitutional power (for example, Congress can not use its budget power to limit the President's appointment power)?
Yes, when a power is given expressly and exclusively to the president, no statute can trump it. For example, Congress could not pass a law putting conditions on the president's use of the pardon power.
Posted by: Anonymous Liberal | July 24, 2006 at 03:11 PM
Well, in this particular, not hypothetical, situation, congress has made what looks like a quite specific command decision: under the FISA framework, the executive may not spy on a number of foreign agents which exceeds the capacity of FISA to approve "warrants" for. And the congress has made another command decision: the executive may not spy on anyone who cannot be indentified and described with 4th Amendment exactitude before the spying takes place.
Cathy, this is wrong in any number of different ways. First, to describe FISA as making "command decisions" is to stretch that phrase beyond any reasonable meaning. FISA lays out ex ante rules that apply generally.
Second, FISA can approve as many warrants as the executive branch submits. The only limit is the capacity of the executive branch itself to submit applications. And Congress has offered to vastly increase the funding for this process.
Third, the requirements imposed by the 4th amendment exist regardless of FISA. The 4th amendment certainly trumps any power the president has under article II. That's not even in dispute.
Posted by: Anonymous Liberal | July 24, 2006 at 03:17 PM
After reading this entire thread, I wonder if AL and wonderland both want to eliminate the US presidency position in its entirety.
By eliminating "inherent authority" based on their interpretation, it seems that all they want is a puppet president.
But Clarice and Barney Frank are right that whenever there is a democratic president in the office, AL and wonderland will both be arguing in favor of "inherent authority" of the US president.
Sorry but I do see SCOTUS encroaching the authority of both Congress and US president in their Hamdan ruling.
And as AJStrata, McCarthy, Vololkh, and others, I see that Bush did indeed have inherent authority over the NSA terrorist surveillance program.
And if you don't, then you are not concerned for the future of this country.
Posted by: Lurker | July 24, 2006 at 03:20 PM
What do you think Specter means when he says:
If the appellate court precedents cited above are correct, FISA is not the exclusive procedure.
I think Specter means exactly what he says above that passage - that the three court decisions rightly "suggest the president" has "inherent constitutional powers" that FISA cannot eliminate. I don't know why you have to search for your own (implausible) meaning, when Specter says exactly what he means a few paragraphs above.
Again, as I've argued, Specter is saying in the second paragraph of the op-ed that the decisions suggest - not hold - that the President has (what you would term) exclusive authority. In the sentence you quote, Specter is simply saying that, if those suggestions in those cases are right that the President has such exclusive authority, then FISA could not constrain his exercise of those powers. Seems quite straightforward to me.
So when you say Specter "clearly means 'correct' in the sense of correctly anticipating how the Supreme Court would rule", I think you are clearly wrong.
Plus, the stated purpose of Specter's legislation is to force, ultimately, Supreme Court review of this very question.
No, indeed, the purpose of Specter's legislation is not to FORCE Supreme Court review of this question [i.e., the question of the President's exclusive authority], it is rather to BYPASS this question. The legislation is to force judicial review of the FOURTH AMENDMENT question, not the Article II question.
Second, your entire point doesn't make sense. Those appellate cases cannot be construed as persuasive authority, even in dicta, for the proposition that the President retains the authority to conduct surveillance inconsistent with FISA, becuase they are pre-FISA cases.
The fact that they are pre-FISA cases means that their HOLDINGS don't apply here. It does not mean that they don't supply any persuasive authority at all to the case.
Indeed, the Troung case, which dealt with pre-FISA events but was decided post-FISA suggests, in dicta, that FISA is indeed constitutional, the exact opposite of what you're saying.
FISA could STILL be constitutional, even if a court were to accept the President's argument. FISA could be unconstitutional as applied to this particular fact set, but that doesn't mean that it is facially deficient.
Finally, even if you take Specter's use of the word "authority" to mean "exclusive authority," his op-ed still makes no sense. He writes:
The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure.
If you substitute "exclusive authority" for "constitutional power" this paragraph still makes no sense! The appellate cases did not address, even in dicta, the issue of "exclusive authority." He is clearly misstating the law.
This is the same point you are making above, using the same sentence. You seem to be getting a lot of play out of that word "correct". Which makes me believe that we're going around in circles here. You correctly note that the courts in those three decisions didn't directly address the question of the President's exclusive authority. Which is why Specter says that the decisions "suggest" - not hold - that the President has exclusive authority.
Posted by: A.S. | July 24, 2006 at 03:21 PM
What is the idea here that the prez needs 'probable cause'??
"Probable Cause" of what??
What if he's just listening to Osama talking to his mistress.
The court would automatically deny that request based on no probable cause that any crime is being committed.
And what about shooting down that airplane??
Posted by: Patton | July 24, 2006 at 03:21 PM
"Second, FISA can approve as many warrants as the executive branch submits. The only limit is the capacity of the executive branch itself to submit applications. And Congress has offered to vastly increase the funding for this process."
Ah but...FISA HAS disapproved warrants when they should not have.
The 72 hour limit WAS an issue.
FISA / FISC laws have not kept up with the advanced technology either, which Congress has NOT kept up either.
There was another issue with the FISA law where the person being surveilled must be contacted.
The intent of terrorism was to thwart terrorist attacks before they happened. The timing of the terrorist attacks are too fast for the cumbersome FISA process.
FISA courts have stated that this NSA terrorist surveillance program is perfectly legal (most FISA judges).
Posted by: Lurker | July 24, 2006 at 03:23 PM
Barney, it goes back farther than that. Consider the powers granted FDR during WWII and the almost total weight given the now-proven fact that his Administration flat out lied to SCOTUS to secure the Jalanese internments..
Posted by: clarice | July 24, 2006 at 03:24 PM
**JaPanese*****
Posted by: clarice | July 24, 2006 at 03:24 PM
But Clarice and Barney Frank are right that whenever there is a democratic president in the office, AL and wonderland will both be arguing in favor of "inherent authority" of the US president.
If you really need to believe that Lurker, I suppose there's nothing I can do to disuade you. I think I should point out, however, that both Wonderland and I are defending principles of constitutional law that have been in place for a long time and have never been questioned, until now, by any president of either party.
Indeed, the error we were pointing out in Specter's reasoning is one that all nine of the current supreme court justices agree with us about. If you don't believe me, read Hamdan, including the dissenting opinions.
Posted by: Anonymous Liberal | July 24, 2006 at 03:25 PM
OTOH you can be sure that post 9-11 had there been another terrorist attck, the Senate hearings would have resulted in a report (supported by constitutional scholars) that the President should have bypassed FISA and had inherent authority to do so.
Posted by: clarice | July 24, 2006 at 03:26 PM
Sorry, AL, your arguments reeks highly of a liberal bias and not according to the checks and balance among the 3 branches.
Posted by: Lurker | July 24, 2006 at 03:28 PM
A.S.,
No, indeed, the purpose of Specter's legislation is not to FORCE Supreme Court review of this question [i.e., the question of the President's exclusive authority], it is rather to BYPASS this question. The legislation is to force judicial review of the FOURTH AMENDMENT question, not the Article II question.
Thank you misreading what I said and then repeating my point. Specter's legislation is intended, as you say, to force the 4th amendment question, which is the only question that those pre-FISA appellate courts dealt with. They never dealt with the exclusive authority argument, either in holding or dicta, because THERE WAS NO STATUTE IN PLACE.
Posted by: Anonymous Liberal | July 24, 2006 at 03:30 PM
"OTOH you can be sure that post 9-11 had there been another terrorist attck, the Senate hearings would have resulted in a report (supported by constitutional scholars) that the President should have bypassed FISA and had inherent authority to do so."
Exactly.
Maybe Bush should've allowed one of those thwarted terrorist plans to happen?
And Captain's Quarter's opinion
He's right.
Posted by: Lurker | July 24, 2006 at 03:35 PM
"No, indeed, the purpose of Specter's legislation is not to FORCE Supreme Court review of this question [i.e., the question of the President's exclusive authority], it is rather to BYPASS this question. The legislation is to force judicial review of the FOURTH AMENDMENT question, not the Article II question.
Thank you misreading what I said and then repeating my point. Specter's legislation is intended, as you say, to force the 4th amendment question, which is the only question that those pre-FISA appellate courts dealt with. They never dealt with the exclusive authority argument, either in holding or dicta, because THERE WAS NO STATUTE IN PLACE."
Then you want a puppet US president when he or she is a Republican and a US president having "inherent authority" when he or she is a Democrat.
Posted by: Lurker | July 24, 2006 at 03:36 PM
AL: Hey, you got there ahead of me.
The vesting of the entire executive power in the President and his powers as Commander-in-Chief are no more ambiguous than these other powers, though they are more vague. Whatever the powers of the Commander-in-
Chief are, the President has them. Indeed, as you note (and as both the Federalist Papers and Madison's notes of the constitutional convention foresaw) the pardon power is unconstrained: it even allows the President to pardon himself for treason.
There are powers that the President has as Commander-in-Chief that are not subject to Congressional interference. If, for example, Congress were to require Congressional approval before the use of the military overseas, the President would (I think) still have inherent authority to act against an imminent North Korean missile launch.
Posted by: David Cohen | July 24, 2006 at 03:40 PM
Anon Lib, you need to switch your hats and think about a wartime US president. The US Constitution DOES authorize our US president the "inherent authority" to protect our country from foreign attacks and during wartime as well.
To me, this is one area that makes the NSA terrorist surveillance program perfectly legal because it authorizes our US president to protect our own country from foreign attacks.
Posted by: Lurker | July 24, 2006 at 03:41 PM
What was the oath that each US president say every 4 years?
"There are powers that the President has as Commander-in-Chief that are not subject to Congressional interference. If, for example, Congress were to require Congressional approval before the use of the military overseas, the President would (I think) still have inherent authority to act against an imminent North Korean missile launch."
And in order for the US President to make the right decisions based on his "inherent authority", he must have sufficient data before pushing the red button(s) and direct people to thwart these terrorist attakcs against our own country.
How will he get the information if you, Anon Lib, so desperately WANT to remove all so-called "inherent authority" from the US president before pushing the red button? Then Voila! Too late for him to push the red button!
We got attacked already with a nuke bomb!!
Why? Because you managed to get all so-called "inherent authority" removed from the US President.
Posted by: Lurker | July 24, 2006 at 03:46 PM
The 4th Amendment quite explicitly defines "warrant" as requiring specificity as to person and place and specificity as to probable cause. And it ain't beanbag.
Consider the case of searching airline passengers at security checkpoints. Courts have done some (outrageous) fancy dancing to decide that the 4th Amendment doesn't apply. If they were to apply the straightforward interpretation that you can't make any individual passenger go through a metal detector unless you have probable cause that this individual passenger is guilty of something, then clearly our program of screening all passengers would be over. Even if congress did pass something that they called an Airline Passenger Surveillance Act which set up an Airline Passenger Surveillance Court and they agreed to "vastly increase funding" to support it. There isn't enough money in the world to produce a real warrant (as defined in the 4th Amendment) for all of the air passengers in the US, and even an infinite amount of money couldn't find probable cause for 99.99% of passengers because there is no probable cause to be found.
cathy :-)
Posted by: cathyf | July 24, 2006 at 03:48 PM
Aha! Cathyf, perhaps we should boycott TSA by enforcing that warrants must be authorized before they can search us before boarding the plane.
Posted by: Lurker | July 24, 2006 at 03:50 PM
Ok, I've read this again, and it's clear that Gorelick wasn't arguing that FISA unduly encroaches on the President's Article II powers, and didn't specifically state that he could ignore FISA, but she did suggest that "the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes." It seems reasonable to infer that she wouldn't exempt electronic surveillance from this statement, but that would only be an inference.
What I got from this whole statement of hers was that it would be better -- not necessary, but better -- for the President to conform to the FISA standard. Not that that's legally significant even if my reading is correct.
Posted by: Extraneus | July 24, 2006 at 03:54 PM
US President Oath:
Oath
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
This is in accordance with Article II, Section I of the U.S. Constitution.
This oath makes this NSA terrorist surveillance program legal by all rights accordance to the US constitution. If Bush was not able to or did not use his inherent authority to protect not only this country but the constitution of this country from foreign attacks, then he violated this oath.
Posted by: Lurker | July 24, 2006 at 04:04 PM
Drat! No BB Tags at work (not allowed). Do I have the authority to pardon myself for messing up the bold part????
Posted by: Lurker | July 24, 2006 at 04:05 PM