[Clips] Executive Power on Steroids
R. A. Hettinga
rah at shipwright.com
Mon Feb 13 03:29:28 PST 2006
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Date: Mon, 13 Feb 2006 06:28:47 -0500
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Subject: [Clips] Executive Power on Steroids
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<http://online.wsj.com/article_print/SB113980208779772206.html>
The Wall Street Journal
February 13, 2006
COMMENTARY
Executive Power on Steroids
By RICHARD A. EPSTEIN
February 13, 2006; Page A16
President Bush's domestic surveillance program against al Qaeda has spawned
multiple controversies. Intelligence skeptics ask, for example, whether the
potential gains from snooping are worth the hassle. Civil libertarians
doubt whether the warrantless surveillance and wiretaps can be squared with
the Fourth Amendment. On both these disputes, my sympathies run with the
president. I support his efforts to renew the Patriot Act; and I believe
our first order of business should be to retool the Foreign Intelligence
Surveillance Act (FISA) to meet the challenges of modern communications
technology.
Yet the key legal struggles over domestic spying go not to its wisdom, but
to the thorny issue of whether the president has exceeded his
constitutional powers in disregarding FISA. He has.
The Constitution gives Congress the power to set policy; it gives to the
president the right, and the duty, to execute it. The president claims
first that he has secured the needed congressional blessing for the NSA's
domestic surveillance through the Authorization of Use of Military Force
Act, passed in the aftermath of Sept. 11, 2001. Not so. AUMF does not
contain one word that dislodges FISA, and the law disfavors any "implied
repeal" of major legislation. Right now, the president can both hound al
Qaeda and follow FISA requirements for domestic warrants. If he wants to go
further, he should seek explicit congressional authorization.
The administration's more aggressive claim is that an "inherent commander
in chief power" lets the president act on his own. To see why this claim
fails, it is critical to set out -- they're short -- the precise provisions
that implement the constitutional separation of powers in matters of war
and peace. First off, the Constitution gives the Congress the power "to
declare" war. Next, only Congress can appropriate the funds to operate the
land and naval forces. Most critically for the spying dispute, Congress has
the explicit power "to make rules for the government and regulation of the
land and naval forces." It has similar powers for setting the standards (or
"discipline") for the state militia. Congress's power applies in both peace
and wartime, and is subject to no express limitations on the nature and
content of its general rules.
On the other side of the ledger, "[t]he President shall be Commander in
Chief of the Army and Navy of the United States, and of the militia when
called into actual service of the United States." Note the word "power"
appears no where in this sentence. The operative verb is "shall be."
The choice of words is not inadvertent. Later in the same section the
Constitution provides that the president "shall have the Power to grant
Reprieves and Pardons for offenses against the United States, except in
cases of impeachment," and the "Power, by and with the Advice and consent
of the Senate to make Treaties." Elsewhere the president shall "receive"
ambassadors and "require" reports from his subordinates.
Words matter. Only powers allow for a change in legal status of the persons
over whom some power is directed. Thus the president's power to grant
reprieves and pardons is rightly described as "plenary," precisely because
Congress has no stated power to hedge it in by legislation, for example by
declaring certain offenses unpardonable. The president's power to make
treaties is likewise plenary, but now subject to the explicit check of
Senatorial advice and consent. At no time, however, can Congress send its
own delegation off to negotiate with Iraq.
So understood, subtly adding in some "inherent commander in chief power"
upsets a carefully wrought constitutional balance. Let the president have
plenary power over military affairs, then it becomes an inevitable
political tussle over whether his inherent power is stronger than
Congress's stated one. But why twist accurate constitutional language to
make a shambles of our basic governance structure? Congress gets to set the
general rules governing military efforts. The Constitution does not confer
the identical power on the president.
This view does not reduce the commander-in chief-clause to some ceremonial
nullity; rather, it has four critical functions. First, it guarantees the
civilian control over the military. Second, Congress cannot circumvent the
president's position as commander in chief by assigning any of his
responsibilities to anyone else. Only the president can execute any laws
that Congress puts in place, and all inferior military officers from the
Joint Chiefs of Staff on down answer only to him. Third, the Congress is
barred from making any specific order on military matters once it lays down
the rules. It cannot micromanage the military, nor put inferior military
personnel in the impossible position of deciding whose commands to follow,
or why. Fourth, the president, like any inferior military commander, can
respond on his own initiative to an immediate attack, without congressional
authorization.
The president's defenders insist that any gap in his power is filled
because the Constitution provides that the president "shall take Care that
the laws be faithfully executed." But this clause cuts in exactly the
opposite direction. FISA is one law that the president must "take care" to
enforce: He cannot choose to flout or ignore it, even if he has wide
discretion in how to implement it. Nor can the president obviate the need
for legislation by making selective disclosures of his activities to
certain members of Congress whom he then subjects to a vow of secrecy. Our
constitutional structure of checks and balances is not subject to
unilateral presidential circumvention by ad hoc procedures. The precise
detailed enumeration of powers and responsibilities in Article II just do
not confer on the president a roving commission over foreign and military
affairs. He is a coordinate player, not a dominant one.
So who cares about these close textual and formal arguments? We all do, or
should. The major danger with presidential surveillance does not lie in
this particular overreaching of executive power. It's what comes next. If
President Bush can ignore FISA, then he can disregard a congressional
prohibition against the use of nuclear force. His defenders often claim
that national defense is too important to be left to a wobbly Congress --
which on my view might prohibit the use of live ammunition in combat. And
so it could. But political forces are always in play, and no legal
institutions are simultaneously robust against all forms of incompetence.
As Madison reminds us, "Enlightened statesmen will not always be at the
helm." If we accept executive power on steroids, then what's to be done if
a reckless president drags our nation into foolish conflicts? Over the long
haul, we'll do best by sticking to the original game plan on military
matters rather than rewriting the Constitution to let the president alter
the rules of the game. Under our Constitution, that power belongs to
Congress. May it use the power wisely.
Mr. Epstein, the James Parker Hall Distinguished Service Professor at the
University of Chicago and the Peter and Kirsten Bedford Senior Fellow at
the Hoover Institution, is the author, most recently, of "How Progressives
Rewrote the Constitution" (Cato Institute, 2006).
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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