[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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  From: "R. A. Hettinga" <rah at shipwright.com>
  Subject: [Clips] Executive Power on Steroids
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  The Wall Street Journal

  February 13, 2006


  Executive Power on Steroids


  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

  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

  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).

  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'
  Clips mailing list
  Clips at philodox.com

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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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