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.
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