On Sun, 17 Nov 1996, Charles Platt wrote:
Of course, Michael Froomkin is right in everything he says about presidential emergency powers. But an unconstitutional abuse of power is
After this start, how could I be churlish enough to quibble with anything you say?
surely not acceptable merely because it has become a routine method for accomplishing everyday legislative tasks. First, it allows significant
We need to be careful here. Which is the unconstitutional abuse? a) The Act giving the President emergency powers (IEEPA) b) The President's use of the act (in this case or in other cases) c) The courts' decision that the existence of an emergency (as opposed to the way the powers are used) is not reviewable (more or less on political question grounds). d) all of the above. If I had to pick, my first choice is probably b, then c, then a. I have some sympathy for the willingness of courts to duck national security issues, although not enough sympathy to encompass the amount of ducking we get.
possibility for future abuse; and second, if the Constitution is routinely circumvented, this diminishes its general power (as any law loses its
Again, what's the circumvention? The administration, let us assume honestly, believes that the spread of strong reliable crypto abroad is a big threat; if it happens it cannot be undone. They think it ("reliable") hasn't happened yet. I'm inclined to think they're right about the facts (see e.g. the thread on c'punx or coderpunx about lousy DES implementations), so far. Is it "unconstitutional" to call this an emergency? Judgment call. I think it's an abuse, but it is (1) routinized (EEA lapses have been dealt with this way before and NO ONE COMPLAINED, not Congress, not the press, not the courts, not the exporters, not the public); the administration could reasonably think this was not a controversial thing to do; (2) within the letter of the act as interpreted (too loosely) by the courts So all three branches of government agree this is constitutional, and the public hasn't complained. Not exactly the foundation for a revolutionary moment. Rather, it is time to complain -- while understanding the context.
power when it is routinely flouted). The situation is all the more troubling because it receives so little publicity, outside of militant "extremist" groups (i.e. those that are crazy enough to believe that presidential power should be limited in accordance with the law of the land). When a president can take almost action under the excuse that it's
Recall that the President almost certainly couldn't do this if Congress hadn't passed a statute ("the law of the land"). I still think that Congress is the place where this should, and perhaps ultimately will, be decided. I also bet that if Congress did get sensitized to this issue ... they'd respond by reactivating the EAA. I don't get the feeling there is a groundswell in Congress for abandoning export control (recall that the EAA controls all dual use munitions -- including missile guidance systems). This is why the courts are all too likely to allow it. No one in government wants to allow weapons parts to be freely exported. [...] A. Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax) Associate Professor of Law | U. Miami School of Law | froomkin@law.miami.edu P.O. Box 248087 | http://www.law.miami.edu/~froomkin Coral Gables, FL 33124 USA | It's warm here.