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Article II and the McCain Amendment:
Marty Lederman takes a look at the President's signing statement for the Defense Appropriations Bill signed on Friday, and finds evidence that the Administration is sticking with its claims of broad Article II authority.
Jay Louis (mail):
President Bush does seem to be walking on thin ice when he makes such broad Article II claims. After all, per Justice Jackson's concurrence in Youngstown, President Bush seems to be operating in "category 3" territory (which I have written about in other threads). But I still am wondering about another issue:

Doesn't the NSA domestic surveillance program seem unlikely to ever be litigated? It would seem unlikely because it is difficult to think of a party that simultaneously has standing and KNOW he/she has standing. It would seem that the only actor that could address the permissibility of the surveillance program would be Congress through its oversight function. But perhaps there is a role for the courts to play in reviewing the constitutional and statutory permissibility of the surveillance program. Only time will tell. But from this vantage point, it seems like examining the permissibility of the President's program will be entirely up to Congress. Are there counterarguments for this viewpoint? Thank you.
1.2.2006 12:47pm
Medis:
Jay Louis,

If you are interested, I sketched out a scenario in response to your question in another thread.

On the general subject,

I wonder if the Administration is actually spoiling for a fight with Congress over this Article II issue. Ultimately, if the President insists on this course, the only real remedy would be impeachment, and they may be calculating that a Republican-held Congress simply will not be willing to go that far, even to protect their own authority.
1.2.2006 1:00pm
Jay Louis (mail):
I read your response in the other thread Medis; thank you for your responses.

What I wrote in the other thread was this:

I have a feeling, however, that FOIA being effective, or "voluntary disclosure by the government" even occurring, are both highly unlikely. Your mentioning of Congressional hearings reinforces the thrust of my original question; viz., that it appears that it will be through the Congressional oversight function that the permissibility of the NSA surveillance program will be evaluated.


I agree with you that ultimately this will be a political question. If the NSA surveillance program, or other powers derived from a questionably expansive Article II interpretation, are to be curtailed or eliminated, it will require action by Congress in the form of oversight.
1.2.2006 1:04pm
Jay Louis (mail):
A phrasing in my 1-2-06 1:04 pm post was ambiguous. I should have written above that the Article II interpretation is so expansive as to be questionably constitutional. It is indubitably an expansive interpretation of Article II :-)
1.2.2006 1:08pm
Anderson (mail) (www):
I wonder if the Administration is actually spoiling for a fight with Congress over this Article II issue.

Concur, except for "wonder." Otherwise they would have to be much, much dumber than even I imagine. They are certainly acting like they want this fight.

Are there enough principled Republicans (and, for that matter, principled Democrats) to hand the White House its head?

I'm not sure that impeachment is the only solution. Suppose that Congress holds hearings finding out exactly what's been going on in the NSA program, and then legislates that the program is illegal without some sort of FISA supervision (amending FISA if need be).

Would the Executive defy something that open? I guess it depends in part on how Nov. 2006 goes, or looks to be going.
1.2.2006 1:21pm
Medis:
Anderson,

I think the White House is "lucky" that the impeachment process would have to begin in the House of Reps, since Senators are arguably less dependent on the President, and have more at stake when it comes to the future power of Congress, because of their electoral schedule.

As for what the White House would defy--I take it this signing statement is a clear indication that they will openly defy the McCain Amendment as they see necessary.
1.2.2006 1:42pm
snead16 (mail):
I think, from here on out (actually, from Crawford forward), all we'll get from the administration and the Republican party power-structure, is poll-tested platitudes ahead of the 11/06 election about "a limited program against bad people that protects American's civil liberties."

Bush isn't spoiling for a fight at all. Rove sees this as a "buying opportunity" against Democrats -- "you're weak on security if you don't support the President's limited program of spying on the enemy."

Really, who could be against that?
1.2.2006 1:58pm
John Lederer (mail):
Why is the statutory reference to the UN reservation to define torture:
(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.—In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

which says:
"I. The Senate's advice and consent is subject to the following reservations:

(1) That the United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.
***


Anything other than a nonsensical circular definition?

Am I missing something?
1.2.2006 2:01pm
Huh:
I was thinking this morning that it would be difficult to find someone with standing to bring the warrantless NSA wiretaps before the judiciary. Then I read this article in Salon.

Interesting reading.
1.2.2006 2:52pm
PersonFromPorlock:
Let me try a novel idea: that far from broadly empowering the President, his designation as Commander-in-Chief puts him, in that role, under Congressional control because Congress has control of the military through several Constitutional provisions.

There are really two distinct offices here; the Presidency, which is independent of and co-equal with Congress, and the Military Chieftanship which is subordinate to Congress through its control of the military. Mr. Bush, confused by his holding of both offices, is trying to assert for the Commander-in-Chief the independence which is proper to the President.

The practical effect is to make an amorphous 'mission' the constraint which limits his actions, not the law, but the whole thing falls down once we realize that the Commander-in-Chief is the Congress' creature.
1.2.2006 3:09pm
Evelyn Blaine:
The President may say whatever he likes in his signing statement, but everyone in the CIA now knows, unless he's been living under a rock for the last few years, that the Bush Administration's legal theories about Article II are not generally accepted and may not protect him from a prosecution under the torture statute or the war crimes statute if he violates the laws of war or the dictates of common humanity. In and of itself, that deterrent effect is a good thing.
1.2.2006 3:10pm
Defending the Indefensible:
PersonFromPorlock makes an excellent point above, which bears repeating.

The President's independent Article II powers do not apply to his Commander-in-Chief designation, the latter is strictly subordinate to the Article I powers of the Congress.
1.2.2006 3:13pm
Polaris (mail):
Huh,

I wouldn't count on it. It's been tried before back in 1978. The precedent is pretty clear. National Security trumps any FOIA or discovery. The case you mention is going nowhere (and IMHO it's a publicity stunt anyway).

-Polaris
1.2.2006 3:16pm
Huh:
Polaris,

Please elaborate. If I'm reading you correctly, you think it would be difficult (impossible?) for a defendant to establish the fact that his communications have been monitored without a warrant? And thus no standing? Or would there be standing but no chance of success?

I am aware that national security can disrupt discovery in a civil case, but I would think due process would require the government to make known the source of its evidence against a criminal defendant.

Of course, I'm not by any means an expert. On anything. :)
1.2.2006 3:41pm
colt41 (mail):
PersonfromPorlock:

In different threads, several posts have cited Federal No. 69 to support your argument. It continues to fall on deaf ears (so to speak), unfortunately.

Instead, the response ranges from "politics is all about might, and if you don't like things, elect a different president" to "the president's 'inherent authority' without regard to CinC powers allows him/her to do whatever he wants in the name of foreign relations, and there's nothing Congress can do to stop him."

If I'm misstating these views, I'm sure I'll be corrected.
1.2.2006 3:48pm
colt41 (mail):
Sorry . . . that should be "Federalist No. 69", not "Federal No. 69"
1.2.2006 3:49pm
Bryan DB:
I posted the Federalist 69 quote at least once. It's an unfortunate point for the Bush apologists that the Founders didn't want another King. One of the ways they differentiated between their new President and their old King is that the former had little power of the military while the latter had all of it.
My guess now is that Bush spent too much time in the corporate world, and is now attempting to aggrandize the powers of the President at the expense of democracy and the role of Congress in our government. He needs to be tossed out on his ear.
1.2.2006 3:54pm
Pooh (www):
Huh,
I have to agree with Polaris, FOIA is likely a non-starter - national security is a big fat thumb on the scale of the balancing test. (To to mention that if they wanted to get cute, the admin could cite the privacy interests of non-plaintiffs as working against disclosure)
1.2.2006 3:56pm
Defending the Indefensible:
Republican Congress:

I double-dog dare you to impeach me.
1.2.2006 3:58pm
KMAJ (mail):
Would someone explain to me the fascination with citing Judge Jackson's concurrence, which no other judges signed on to, in Youngstown as somehow being applied as binding precedence instead of as anything more than a single judge's persuasive opinion. Why do they not cite Judge Black's opinion of the court in Youngstown ? Because there is no reference in the opinion of the court to the points made in the Jackson concurrence, so it does not matter how many 'categories' Jackson delineates, none of it is binding precedent nor does it carry force of law.

In the end, we engage in the same historical battle over executive branch authority that has been waged since the inception of this country. There are cases that fall on both sides of the argument and, depending on one's political leanings and how deeply felt they are, we gravitate towards cases that support our own personal opinion, that is simply human nature.

There is an unaddressed overlap that is in play in this whole debate, that of the intrinsic interrelationship between military action and intelligence. Intelligence gathering, even in the most primitive wars, has been an essential part of carrying out effective military action. What is at debate here is that very elusive balance between civil liberties and the ability to protect the coutry and its people from those enemies who would do us harm. It is this very question that is at the core of this argument, and with the technical advances in communications and weaponry, most legal precedent is ill-equipped to apply to the War on Terror and the very different approach necessary to fight it.

I have no doubt that this will somehow end up before the Supreme Court and will be a decision of major import that will become the foundation for many legal cases in the future. I also have no doubt that this situation will require the need for an act of legislation or total overhaul of FISA in Congress.

I simply cannot see the Supreme Court making any ruling that would protect terrorists' privacy rights, so unless the counter position can make the case that the NSA program has 'deliberately' and 'specifically' targeted non-terrorist related communications, their argunment is a losing proposition.
1.2.2006 3:58pm
Defending the Indefensible:
That was meant to be from George W. Bush.
1.2.2006 3:58pm
Anderson (mail) (www):
KMAJ, as has been pointed out, the Court later endorsed Jackson's concurrence in Dames &Moore v. Regan.

Rehnquist summarized the 3 categories set forth by Jackson and continued:
Although we have in the past found and do today find Justice Jackson's classification of executive actions into three general categories analytically useful, we should be mindful of Justice Holmes' admonition, quoted by Justice Frankfurter in Youngstown, supra, at 597 (concurring opinion), that "[t]he great ordinances of the Constitution do not establish and divide fields of black and white....." Justice Jackson himself recognized that his three categories represented "a somewhat over-simplified grouping," and it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.
Earlier, R. had written:
And yet 16 years later. Justice Jackson in his concurring opinion in Youngstown, supra, which both parties agree brings together as much combination of analysis and common sense as there is in this area, focused not on the "plenary and exclusive [453 U.S. 654, 662] power of the President" but rather responded to a claim of virtually unlimited powers for the Executive by noting: The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. 343 U.S., at 641.
No wonder Yoo ignores Youngstown.

Anyway, those are high praises for a mere concurrence.
1.2.2006 4:05pm
Bryan DB:
Polaris,
The case to which you refer does not support the proposition for which you would like it to stand. National security may well trump an FOIA request, but cases like Hamdi v Rumsfeld and others have made it far from clear that a discovery request would be rejected in like manner.
1.2.2006 4:08pm
Pooh (www):
KMAJ, you are assuming the conclusion. It's not the terrorists rights being protected, it's everyones. That argument is the equivalent of "the only people protected by the 4th amendment are criminals".

As to Youngstown, it has weight because it's subsequently been given weight. (Dames &Moore, etc.) IIRC, the majority opinion says similar things, just not especially clearly, concisely or well, so Jackson's words are often used for the sake of clarity.
1.2.2006 4:09pm
Justin (mail):
"There are really two distinct offices here; the Presidency, which is independent of and co-equal with Congress"

I disagree. Our founders, far from wanting even an equal executive, having dealt with the tyranny of George III wanted a President responsive to Congress. Original intent types like to ignore the entire original intent of Article II, which was to create an administrative leader who was constricted by, and to some degree constricted, Congress's power.

They also ignore the infant Republic's weak foreign power position, one in which our ability to negotiate and be bound to our treaty obligations was the only way we could survive in a world with greater military power than we could hope for, and enemies who sought to dominate us.
1.2.2006 4:12pm
Justin (mail):
PS Isn't it ironic that the same people who like to wax poetic about how our judges are legislating from the bench with impeachable judicial activist are now supposed to consider how a "ruling . . . would protect terrorists' privacy rights"? I mean, terrorists aren't written into the Constitution, so for judges to take into account policy or political factors would be a deriliction of their duty worth putting on the list of the top 10 worst americans ever along with Blackmun, Warren, Helen Keller, and Jimmy Carter.
1.2.2006 4:14pm
Justin (mail):
Even a "mere concurrance" gets "Skidmore" deference, i.e., is valid to the degree that its logic and experience provides the power to persuade. If Jackson is wrong, then please explain where. DID the founders intend to create a king?
1.2.2006 4:39pm
KMAJ (mail):
Thanks Anderson, Pooh

In my reading of the citings of Jackson, they seem to refer squarely to the domestic or internal powers of the executive. Jackson, in his own concurrence, made that very distinction:

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.


It clearly points to Youngstown being a domestic labor dispute, which, constitutionally, is the purview of the legislative branch, and not a war powers issue that involved foreign agents or powers.

Pooh, I understand your Fourth Amendment analogy and agree, the analogy applies due to my lack of verbal clarity on 'the privacy rights of terrorists' as the sole marker rather than in the context of securioty issues that also play a pivotal role. It is within the overlap of those two areas that some sort of balance is required.
1.2.2006 4:41pm
Anderson (mail) (www):
KMAJ, I think we would disagree on the import of "turned inward."
1.2.2006 4:52pm
Justin (mail):
KMAJ, your point is well taken, but remember to read the Congressional seperation of powers in a way that doesn't render

To make Rules for the Government and Regulation of the land and naval Forces;

and

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

nullities.
1.2.2006 4:53pm
KMAJ (mail):
Justin,

If Jackson is wrong, then please explain where. DID the founders intend to create a king?

It is not a case of Jackson being right or wrong, but whether his opinion is dated and does not address changes in technology, even the strictest of constructionists have to allow for how advances in technology alter the legal paradigm.

The 'King' assertion has no legal argumentative support if only for the fact a president has to be elected, re-elected and is term restricted. The ultimate check and balance on the executive and legislative branches of government resides with the people in the voting booth.

Just as an aside, it is interesting that the Founders had included referencing the president as 'His Highness', but was editted out in the final draft without discussion or debate.
1.2.2006 4:58pm
Justin (mail):
Your response is NOT well taken. An every four years King was clearly not what the Constitution considered (the formality was deleted for obvious reasons), it is clear by the text itself that Congress had the dominant rulemaking authority, and that it could regulate executive discretion both for domestic and foreign policy purposes, with several explicit exceptions. Your "well they could always vote him out" might be true as to a hypothetical, fictional Constitution, but it is not the Constitution that we are dealing with.
1.2.2006 5:01pm
KMAJ (mail):
Anderson,

Judge Jackson is very specific on his 'turned inward' reference:

But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.


I think we err if we extend beyond 'lawful economic struggle between industry and labor'. If we do so, we then enter a grey area that is open to various interpretations.
1.2.2006 5:06pm
CharleyCarp (mail):
Frankfurter, J., concurring:


Before the cares of the White House were his own, President Harding is reported to have said that government after all is a very simple thing. He must have said that, if he said it, as a fleeting inhabitant of fairyland. The opposite is the truth. A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed.

To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded - too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.
1.2.2006 5:19pm
KMAJ (mail):
Justin,

If you do NOT take my response well, that is certainly your right. I do find this rhetorical/hypothetical allegation of an elected monarchy not very well founded. The Congress' role in military affairs is clearly not in the operational aspect, other than providing the guidelines and financing, the command aspect is the exclusive authority of the executive branch. The legislative branch's power is at its highest in peacetime when dealing with domestic affairs and law making. There has been no attempt by the executive branch to curtail that law making ability, it has not even exercised its check power on Congress by vetoing any law or bill brought before it. The deabte currently being waged is over where there is conflict in overlapping areas of responsibility and authority. It is something the Supreme Court is going to have to wrestle with, without the hubris of ideological and political partisanship.

While you have your right to your opinion on the 'King' assertion, I find it to be an inflammatory and emotional allegation rather than one based on sound legal footing.
1.2.2006 5:22pm
The Original TS (mail):
I've had this discussion before and I still don't understand the difficulty.

I. Congress makes the Laws.
II. The President faithfully executes them.
III. The Congress has express Constitutional authority to regulate the military
-->
The President's job is to faithfully execute the laws Congress makes that regulate the military.

In other words, the President as Commander-in-Chief has plenary authority to issue any legal order he wants. He does not have any authority to issue illegal orders. The President can order the 7th Army to move to Iraq and start washing car windows on Baghdad street corners. He cannot order the 7th Army to gang rape the population of Heidelberg.

I'm at a complete loss to figure out why so many people find this analysis remarkable. To me, the idea that the President is an absolute dictator when acting as Commander-in-Chief is utterly bizzare and anathema to the entire Constitutional scheme.
1.2.2006 5:26pm
KMAJ (mail):
Original TS:

I understand your reasoning, but its application is an oversimplification and only holds forth if all issues are merely black and white. Definitions of legal and faithfully do not allow themselves to be so delineated, instead they tread in areas that are colored in various shades of grey. Throughout our history, the powers of the three branches have been in flux, rather than constant. Legislative authority is at its height during peacetime, executive authority has its pinnacle during periods of war and threat. The Founders addressed these differences in their writings. Noone has asserted that the president has dictatorial powers, only that he has heightened powers during war and threat, which is not anathema to the Constitution or the intent of the Founders.
1.2.2006 5:46pm
Noah Klein (mail):
KMAJ:

First, I am glad you accepted the applicability of Jackson's opinion to this situation. The reason that Justice Jackson refers to

But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

is because that was the issue in the case before him. Yet he clearly stated that except in the case of rebellion the executive is not allowed to eliminate the legislative branch from view of or limiting his powers.

John Ledrer:

I am not sure you are still around, but if you are I was confused by your post. Are you saying that the limitations placed on "cruel, inhumane and degrading punishment" by the fifth, eighth and fourteenth amendments are a nonsensical circular definition of what can and cannot be done? If this is so, I feel many people may be very surprised that they no longer have the protection of the fifth, eighth and fourteenth amendments because they are nonsensical.

Noah
1.2.2006 5:51pm
Pooh (www):
KMAJ,

If ours is a government of 'limited powers', what precisely is the 'limit' on executive powers if it is not the Law, as duly enacted? I accept your premise that issues are not black and white, but in the case where Congress has explicity said "Do not do this", and has even created significant safe harbors for emergency situations (including the commencement of war, assuming arguendo that we are 'at war'), there seems to be a very strong presumption against the actions taken. Especially where such actions were taken in secret.

There may well be good prudential reasons for the NSA program. Make the case - "l'etat, c'est moi" is not appropriate within our system of government. I'm prepared to defend a lot of actions on the basis of "you elected him", but that deference goes so far and no further. Willfully extralegal conduct is further.
1.2.2006 6:21pm
KMAJ (mail):
Noah Klein,

is because that was the issue in the case before him. Yet he clearly stated that except in the case of rebellion the executive is not allowed to eliminate the legislative branch from view of or limiting his powers.


Would we not be erring to claim that rebellion is the only exception ? Rebellion, to my mind, clearly emphasizes 'domestic rebellion' and does not speak directly to foreign threats, nor does it give the legislative branch authority to 'directly' limit executive branch powers. I make this observation based on James Madison, in Federalist No. 48:

"It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers."

We are treading in an area where both the President and Congress have powers. Further, it is an area where the President and Congress are both attempting to exercise their legitimate powers under the Constitution, and their competing claims should be reconciled by concluding that Congress cannot bar the President from exercising his constitutional powers, but can attempt, within constitutional limits, to regulate the manner in which he carries out those responsibilities by passing laws and/or controlling the pursestrings. The passing of laws would fall under the Article I provision of "To make Rules for the Government and Regulation of the land and naval Forces" clause. Passing laws would subject itself to presidential veto and congressional overide provisions.
1.2.2006 6:33pm
KMAJ (mail):
Pooh,

I concur with your 'limited powers' concept, but when invoking it, it must be applied across the full spectrum of federal government and not just the executive branch, to do otherwise is to elevate the powers of one branch at the expense of another. Clearly, all branches have expanded the scope of federal authority during our history. I think I can definitively claim that the Founders would not approve of the size and scope our government has taken on, whether it be taxation legislation, entitlement programs or judicial overreach. I find it perplexing that the 'limited powers' argument is taking place in an arena that the Founders had clearly expounded upon, military, security and liberty, yet we turn a blind eye to areas where the federal government has expnded its power the most and usurped the property rights laid out by the Founders.
1.2.2006 6:47pm
John Lederer (mail):
Noah,

As I read it the new statute prohibits violations of the amendments as they are defined in the UN treaty reservation. The reservation defines them as the amendments.

What am I missing? "Seems like A as defined by B which is as defined by A"
1.2.2006 6:55pm
Barry (mail):
KMAJ:

"It is not a case of Jackson being right or wrong, but whether his opinion is dated and does not address changes in technology, even the strictest of constructionists have to allow for how advances in technology alter the legal paradigm."

I find it interesting that people could find a 50-year old court decision dated, but also seem to believe that a 200 year old document meant to govern a 3 million person country adequate.
1.2.2006 6:57pm
Noah Klein (mail):
John:

I assume you are talking about the McCain amendment to the Defense Appropriations Bill. This amendment states that "cruel, inhumane and degrading treatment" may not be performed in interrogation of prisoners (not actual text just inferences from news reports). I also understand that the amendment requires all personnel of the U.S. to follow the procedures laid out in the Army field manual.

Either way the reservations to the treaty were made in an attempt to define what the U.S. considers "cruel, inhumane and degrading." The reservations state that CID would mean violations of the fifth, eighth and fourteenth amendments. I do not see any circular definition. Maybe I am reading it wrong.

Noah
1.2.2006 7:06pm
KMAJ (mail):
Barry,

You compare apples and oranges, the 50 year old decision deals in specifics, the document is the foundation for ALL laws.
1.2.2006 7:07pm
The Original TS (mail):
Noone has asserted that the president has dictatorial powers, only that he has heightened powers during war and threat

You're wrong. That's exactly what an astounding number of people are claiming. This administration is, apparently, making that claim itself. How else can we explain the President's apparent intent to ignore the McCain amendment?

I say that the President cannot legally order someone -- even an illegal-combatant- very-bad-person-who-used-to-be- Osama's-roomate-in-college someone, raped. But the White House is effectively arguing that, through the magic of Article II, the President has the authority to do just that.

This whole "at war or threat" thing is a complete red herring. We're the biggest, most powerful country on the face of the earth. We're always going to be threatened to some degree by something. Assuming, arguendo, that we're at war (which I do not) the President can still only issue lawful orders. But that's almost beside the point because The White House claims that it has all the authority it needs to do all this stuff even if Congress hasn't declared war.

Civil liberties and the rule of law do not exist at the sufferance of the President, not even in a declared war.
1.2.2006 7:15pm
Noah Klein (mail):
KMAJ:

I do not think we would be erring to say that the only exception to Jackson's ruling is in the case of rebellion, because that is what he says. Furthermore he opinion appears to be the precedent that the Judiciary follows, because it has been used as a precedent in several cases cited above and others not cited.

Finally in rebutting my argument you use Federalist No. 48:

"It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers."

I find the word completely to be interesting in this occassion. It has always been my understanding that each branch can partially participate in the busy of the other branches. The Congress makes the rules that govern the Army, navy and other departments of the executive and conducts oversight. The Executive proposes laws and can veto acts of Congress. The Court determines the constitutionality of each of the other branches actions. Congress can define the scope of cases the Court can review and the Executive appoints members of the Judiciary. I do not see how what Congress did in the case of FISA is anymore than defining the rules that the executive must apply when seeking to gain intelligence on U.S. persons who may be agents of a foreign power.

Noah
1.2.2006 7:17pm
Medis:
John L.,

I'm not sure "circular" is the right word, but I think you are right that the relevant definition in the McCain Amendment is somewhat redundant, because by referencing our Reservation in the CAT, it basically incorporates a second time the same definition set out previously in the text. However, I think the point of that reference is just to provide a reminder that the McCain Amendment is actually doing nothing more than enforcing our treaty obligations under the CAT. And we have to do that because in another Reservation we stated that the relevant provision was not self-enforcing.
1.2.2006 7:52pm
Hattio (mail):
I've got a real basic question. How common is a signing statement???
1.2.2006 8:28pm
Justin (mail):
An ad hominen attack, Michael, would be saying that you are too dumb to realize what the words ad hominen even mean.

Pointing out, however disparagingly, that Polaris's comment does not pass straight face test is not an ad hominen attack. Pointing out equally that Minnie's argument that charity has no value to the recepient of the charity, only to the donor (and thus Jesus and Adam Smith were best of friends) is a selfish position in what was a debate about ethics and morality is ALSO not an ad hominen attack. Now Polaris has put his own credibility on the line in lieu of arguments at times, putting ad hominen attacks on such credibility "in play", but that's neither here nor there.

BTW, your attack on me, however incorrect, was that ad hominen? Because it didn't seem to be addressed to my positions.
1.2.2006 8:46pm
Justin (mail):
Whoops, wrong thread.
1.2.2006 8:48pm
KMAJ (mail):
Noah Klein,

I respect your opinion, perhaps you could define precedence, isn't it usually reserved for prior rulings and not concurring opinions ? Having it cited in other opinions may lend it more weight in persuasive argument, but is it truly 'binding' precedent ? Also, I wonder, as Youngstown did not even ambiguously deal with intelligence, are we not engaging in 'emanations' of what we think Jackson would have opined ? My argument is that the thought of terrorism and technological advancements of communications and weaponry, did not even enter into Judge Jackson's thoughts when offerring his concurring opinion. My opinion, and I could be wrong, is that terrorism and technology alter the legal paradigm and seem to create a debate between intellectual idealism and pragmatic realism.

In re Federalist 48, we err if we single out the one word 'completely' while ignoring its equal partner 'directly'. We could argue that FISA does not 'completely' encroach on executive branch authority but it could equally be argued that it does 'directly' encroach. I don't proffer the argument to say I am correct, but to highlight the contradictions that are open to debate.

I do agree with your description of how the checks and balances between branches are supposed to operate, though I hold reservations on FISA being a benign or neutral act in the separation of powers.

Once again, in my opinion, FISA was a paranoid reaction to the abuses of LBJ and Nixon to spy on domestic groups and people. Just as the Church Commission gutted intelligence capabilities to the degree that we still have not recovered, FISA does create a similar hindrance to intelligence gathering. It does not make a clear enough distinction between criminal and intelligence purposes, between foreign and domestic nor does it adequately address that the overlap that terrorism creates in both.

You might find Cass Sunstein's latest piece interesting.

The President's "Inherent" Power

December 28, 2005

The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.



One of the jobs of the Department of Justice is to protect the constitutional prerogatives of the President, and after 9/11, it is hardly surprising to find bold claims of this sort. My first goal here is to make some progress in understanding the legal issues by sketching the general framework under which they might be analyzed. My second goal is to suggest that it is often best to refuse to resolve issues of inherent authority, and to answer the legal question while leaving those issues undecided.

It is tempting to take one of two positions on the President's claims of inherent authority. (1) He has such authority under the Commander-in-Chief Clause or the vesting of "executive" power. (2) He lacks such authority, and if he has it, he cannot exercise it without running afoul of the Bill of Rights (eg the Fourth Amendment in the case of surveillance and the Due Process Clause in the case of detention). The debate between (1) and (2) is often very high-level, and forces a judgment about some of the largest unresolved questions in constitutional law.

In his concurring opinion in The Steel Seizure Case, Justice Jackson tried to refine the battle between (1) and (2) by drawing attention to Congress. He suggested that we might also adopt two other positions. (3) The President has such authority because Congress has said that he does, thus augmenting the President's own power with "all that Congress can delegate." (4) The President lacks such authority because Congress has said that he doesn't, ensuring that his own power "is at its lowest ebb."

We have seen (3) in the argument that the President may engage in foreign surveillance because the authorization to use military force implicitly includes the power to engage in such surveillance. We have seen (4) in the argument that FISA bans the President from engaging in such surveillance without going through the FISA process. Naturally, the Department of Justice, attempting to protect the President's prerogatives, emphasizes "inherent" power and implies that Congress lacks the authority to intrude on it.

But there are two other possible arguments, and they are sometimes important. (5) The President has authority because relevant congressional enactments should be construed, if they possibly can, to give him that authority. The reason is that whenever the President has a plausible claim of "inherent" power, statutes should be construed, if they possibly can, to recognize the power that he might well have as a matter of constitutional right. In other words, courts should avoid constitutional questions, and one way to do that is to refuse to adjudicate the President's claim of inherent authority by finding a grant of power from Congress.

(6) The President lacks authority because relevant congressional enactments should be construed, if they possibly can, to deny him that authority. The reason is that there is a plausible claim that the exercise of that authority violates a rights-protecting provision of the Constitution. Courts should avoid constitutional questions by refusing to interpret a statute to allow the president to intrude on constitutionally sensitive interests.

With respect to torture, the Department of Justice's Office of Legal Counsel made argument (5). The particular argument was weak, because the President cannot easily claim that a congressional ban on torture violates his inherent power; but the general form of the argument is fine, in the sense that it is plausible whenever the President has a solid claim of inherent power. The Supreme Court has often made argument (6), even when national security is at risk -- for example, by protecting free speech (Yates) and the right to travel (Kent v. Dulles) in the Cold War, and by protecting due process in World War II (Duncan and Endo).

With respect to wiretapping, argument (5) is available to the government, because there is a plausible claim of inherent power. Argument (6) is available to critics if the Fourth Amendment objection is strong. (It is not clear that it is.) Some of the hardest cases arise when the President has a reasonable claim of inherent power AND when there is a reasonable constitutional objection on the other side.

A final note: One of the less famous parts of Justice Jackson's Steel Seizure concurrence consists of an attack on "loose and irresponsible use of adjectives," including words like inherent, implied, incidental, war, plenary, and emergency. Jackson argued that such words are an effort to "amend" the Constitution. (He deserves special attention on this point, because he was FDR's Attorney General, and hardly oblivious to the constitutional claims of the President.) In so arguing, Jackson probably used the word "amend" too loosely, perhaps even irresponsibly; but he had a point. There is an unmistakable tension between some of the arguments of the Bush Administration, emphasizing inherent authority, and Justice Jackson's opinion in the Steel Seizure Case.

The analysis of the two positions probably has to be conducted issue-by-issue, and not in the abstract. My general point here is that most of the time, it is valuable to avoid disputes between (1) and (2), and to see if progress can be made by bracketing the most fundamental questions about "inherent" authority and by giving careful attention to what Congress has done.
1.2.2006 9:24pm
Pooh (mail) (www):
KMAJ,

For sake of argument, assume you are right and there is some amorphous "Article II" plenary power (no, not CiC power because there is no plausible way to read Art I as not modifying/limitng/coexisting with CiC). When does it end? Where does it end? I'm not trying to argue by way of reducto ad absurdem here, I am curious to know just how far this power extends, and whether you can stll, with a straight face, describe it as limited.

As to the point about precedence, Jackson's 3 category approach is binding i that it has been adopted in later cases (not to mention making good and obvious sense on its own merits.)

It doesn't bother you at all that the position of the Preisdent appears to be "that's a nice law. I'll sign it. It doesn't apply to me though since we are at war?"
1.2.2006 9:36pm
Medis:
Having followed Cass's comments on this subject, I think he has yet to come to grips with the actual statutory situation. And in any event, his (5) is misformulated--there actually isn't a constitutional problem in a Youngstown Category 3 case if Congress's Article I power overlaps with the President's "inherent" Article II power. In such a case, Congress gets what it wants. Hence, the President has no "right" to contradict the will of Congress despite his overlapping "inherent" power, and thus there is no difficult constitutional problem to be resolved.
1.2.2006 9:43pm
Jutblogger (www):
I think Kerr was wrong in his initial analysis and now he is backtracking to a limited degree.

He began, if I recall, by arguing that the Fourth Amendment had likely not been violated, but that FISA like had. He also felt that the Article II argument was a loser. I think the way the Administration will argue this issue, and the way the courts will play it out, based on Sealed Case, Youngstown, U.S. v. Curtiss-Wright, and the progeny of Article II v. I cases and Domestic (crime) v. National Security cases, the federal courts will likely say:

Article II trumps FISA to the extent FISA attempts to criminalize conduct that is constitutionally granted under article II (without further constitutional restriction). i.e., the power cannot be legislatively restricted, and certainly not criminalized (without constitutional amendment).

However, the above will only apply in cases regarding national security, and not domestic criminal law enforcement. In those cases, with or without any compliance with FISA (but presumably without), without any probable cause, the information gathered will likely be inadmissible.
i.e., Padilla will probably have great suppression arguments. I should note that in any non-criminal case, well, there probably won't be a "case" per se anyhow. I think Sealed Case really makes this second point clear, as well as Truong (particularly the lack of significance to FISA if there is no warrant whatsoever, the judge can write: he could have gotten one easy (fisa), or the hard way (regular magistrate), it was up to him, but he did neither, so it's not admissible).

I only say Kerr is backtracking now because he is paying a lot more attention to the Article II argument, which he first dismissed.
1.2.2006 10:19pm
KMAJ (mail):
Pooh,

As another whose opinion I respect, let me say I make no claim of personal legal acumen. What limited knowledge I do have comes from my own personal interest, reading and research. having read all the Federalist papers, the Continental Congress debates, writings of the Framers and numerous case law files. I have always been a questioner, in class and even when forced to attend Sunday School as a child.

With the above qualifier, let me come at the 'limited' question from the perspective of defining the word. To me, limited would in essence be an abstract concept in that who will determine the dividing line between limited and unlimited ? Obviously a literal interpretation can not apply, because, for example, to say he cannot authorize murder is putting a limit and would thus negate any claim of his power being unlimited. If we are referring to 'limited' as referring to a time frame, how would one impose a time frame on something of unknown duration, i.e. the War on Terror ? Surely we cannot assume an endless war, so we are again dealing with a 'limited' reference. I would thus proffer that it is better to debate in the terms of reasonable as opposed to limited. In other words, is the authority claimed reasonable in relation to his ability to faithfully carry out his constitutionally required duties as well as to interpreting the Constitution ?

Regarding Judge Jackson, I addressed my concerns and questions to Noah, that we are seeking to divine 'emanations' from his opinion and apply it to things that did not even enter his thought process. I feel safe in guessing that terrorism and technological advances in communications and weaponry would have had a significant impact on his opinion.

I do not agree with your assessment of the President's thought process, every president has subscribed to the theory of inherent powers. Bush has certainly not extended executive authority to the level of Jackson, FDR and Lincoln, or even LBJ and Nixon. The NSA program is limited in scope, it has been subject to frequent DOJ review for abuse and Congress has been informed of its actions. There is no Manzanar, no suspension of habeas corpus, no wide scale spying on anti-war groups or individuals, at least not that I have heard of. There is no such thing as a perfect program, anything that involves human beings will have flaws, so, yes, some innocents may get entangled and inconvenienced, but the alternative seems to fail the logic test.
1.2.2006 10:19pm
Jutblogger (www):
edit: FISA likely* had.
1.2.2006 10:20pm
Noah Klein (mail):
KMAJ:

You make an excellent point that the word "directly" is also a very important word in that sentence, yet I do not think that FISA "directly...[administers]" power that is granted to the executive. I think that FISA follows the Article I Section 8 power granted to Congress to make the rules and regulations governing the military and other government departments.

Furthermore, Findlaw defines precedent as " judicial decision that should be followed by a judge when deciding a later similar case." Thus when, as has been stated earlier, Rehnquist and O'Connor used Youngstown as a precedent it became a precedent.

Noah
1.2.2006 10:27pm
KMAJ (mail):
Medis,

I certainly agree with your right to disagree with Sunstein, I cannot summarily dismiss his opinion, the esteem and reputation he has in the field of Constitutional Law gives him a certain measure of credibility and respect.
1.2.2006 10:37pm
Medis:
I wouldn't summarily dismiss his opinion either. As I said, I have been tracking his comments, including at the UChicago Faculty Blog.
1.2.2006 10:47pm
Smithy (mail):
The Article II claims are strong both legally and in terms of public support. McCain and his ilk may like the idea of coddling terrorists, but the vast majority of us do not.

Article II gives the executive branch broad powers in this context. That is how the framers saw things: a strong executive is a great asset in a time of war such as this.
1.2.2006 10:48pm
KMAJ (mail):
Noah,

Thank you for your input and opinion, it's appreciated. I would be interested in your opinions as to how you think Myers v. United States and United States v. Curtiss-Wright apply.
1.2.2006 10:53pm
byomtov (mail):
The NSA program is limited in scope,

We do not know at this point what the scope is.

it has been subject to frequent DOJ review for abuse

DOJ is hardly impartial. Do you seriously maintain that Gonzales and Ashcroft can be relied on for objective legal analysis?

and Congress has been informed of its actions.

A very small number of members have been informed in vague terms, and not allowed to pass the information on to other members. Nor is it clear that this small group unanimously approved.
1.2.2006 10:55pm
Smithy (mail):
Byomotov, you are ignoring Article II altogether. You may not like this current DOJ, but the legal claims here are very strong. That is what is at issue here.
1.2.2006 10:58pm
Dave Hardy (mail) (www):
I say that the President cannot legally order someone -- even an illegal-combatant- very-bad-person-who-used-to-be- Osama's-roomate-in-college someone, raped. But the White House is effectively arguing that, through the magic of Article II, the President has the authority to do just that.


Or perhaps more precisely, that he President cannot legally order someone to rape Osama's roomate if Congress forbade the aforesaid buggery?

I for one, altho I find the Congressional reference to "degrading" treatment rather overbroad and wimpy in time of conflict, think the reference to Congress's powers to prescribe rules for land and naval forces rather persuasive as to whether the amendment is within their powers.

On the civilian side, it is perhaps time to recall that, indeed, the presidency was seen as rather less powerful than Congress in most aspects, it is Congress itself that made it so overwhelming powerful, by enacting statutes that, instead of prescribing what was allowed or forbidden, instead enacted one listing various values, ordering executive agencies to consider them and make the rules, providing that violation of the rules would be crimes, and establishing a million or so person bureaucracy to do just that.
1.2.2006 11:05pm
KMAJ (mail):
byomtov,

I think your objections are more political in nature and can be attributted to the vitriolic polarization that exists today. Don't get me wrong, the right was just as guilty of it in the previous administration.

Personally, I find the assignations of evil intent and character assassination distasteful and lead to a deterioration of substantive debate. I have no doubt that both Clinton and Bush love this country, that both are human and, as such, are subject to human frailties to which we are all subject.
1.2.2006 11:08pm
Anderson (mail) (www):
What a strange world I drop into when I visit one of these threads. Joe Stalin's old fans seem to have transferred their adulation to George W. Bush.

I see a highly deferential statute like FISA that bends over backwards to respect Executive authority, and then I see people arguing that it's an unconstitutional LIMIT on that authority.

Jackson and Frankfurter, in their Youngstown ops, were living as contemporaries of Stalin and, quite recently, of Hitler. They knew what the State is capable of in the name of "national security." The Holocaust was committed to make the German people "safe" from International Jewry. Ditto the Soviet purges---national safety against capitalist spies and hooligans.

I hope that America stays a free country long enough for some of you to be ashamed of the arguments you're making. In a free country, people who argue in favor of tyranny are entitled to a hearing, but not to respect.
1.2.2006 11:18pm
Freder Frederson (mail):
I certainly agree with your right to disagree with Sunstein, I cannot summarily dismiss his opinion, the esteem and reputation he has in the field of Constitutional Law gives him a certain measure of credibility and respect.

Yeah, well the University of Chicago is all too willing to lead the charge into fascism. Posner is writing editorials telling us that data mining actually protects our privacy. Either the man is a complete idiot and has no idea how databases and datamining work or he is just shilling for the administration and doesn't care if he looks like a fool.

When the president signs a bill and announces that he will ignore the parts of it that he doesn't like, which stripped to its essence, is what he said today, he has committed an impeachable offense by announcing his intent that he will not faithfully execute laws, which is directly in contravention of his Article II duties.

For anyone to argue that the President has the right under Article II, to commit war crimes (which torture is), especially a person who is a Professor of Law at a supposedly top tier university, shows how morally bankrupt this country has become. I hope that John Yoo is in the docket at The Hague as an accessory when the war crimes trials are held (or at least is forced to defend Rumsfeld, Stephen Cambone, Wolfowitz and Bush and the world gets to see what a morally repugnant little man he is). Because although the argument may excuse them under U.S. law (and I hope even with his handpicked Supreme Court, they won't go that far), it certainly won't fly in more civilized country.
1.2.2006 11:42pm
Defending the Indefensible:
So it turns out that Padilla's habeas petition is deficient and must therefore be denied, as it has not been properly endorsed per statutum tricesimo primo Caroli secundi Regis.

Oh, wait, you mean that guy? He must have escaped from detention, we don't know where he is now.

We lost his paperwork too, I guess. Hey, is that a wookie?
1.2.2006 11:45pm
Pooh (www):
KMAJ,

You may disagree with my assesment of the thought process. I'd say that any error is the fault of this administration for allowing the appearance of such a bold-faced power grab to exist. Not to beat a dead horse, but when JM Luttig is worried that you are sacrificing legality to expediency, you might have at least a perception problem.

I also disagree with your attempt to define away the 'limited powers' issue, for several reasons. First, reasonableness seems to bear at least some relation to need. At times, I feel like a parent on Christmas morning whose child asks "is that all?" Plenty of powers have been granted, and not been best used (whither Bin Laden, I might ask?).

Second, and relatedly, your formulation creates a perverse incentive for one who values power - the longer it takes to reach a certain goal, the more one can exercise relatively unfettered powers. To suggest that this administration has never used 9/11 or the GWoT for partisan purposes is tendentious at best, do I am less than sanguine about asceding to claims of neccesaity for yet more power.

As to your point about 'limited in scope'. Time will hopefully tell as to the true scope. My guess is that there are multiple, career NSA officials who are not best pleases with the import of the program, and that's how we got the story in the first place. (pure speculation on my part, but I think sensible) I might add that this is not an isolated incident to my mind - the torture debate, Hamdi, Hamdan, Padilla, the NSA flap, the FBI surveiling quakers and now this renewed Art II business taken together start to form a picture of something more sinister (not to mention DeLay's use of DHS resources to track recalcitrant political opponents).

As to Curtiss-Wright and Myers, let me get back to you, have to re-read them as the facts aren't springing to mind...
1.2.2006 11:53pm
Pooh (www):
Upon further reading.

Curtiss-Wright does present something of a conundrum, especially when taken in opposition to Youngstown (I could note that much of the sweeping language of C-W is arguably dicta - the case wasn't about executive power, more about congressional delegation, but somehow I don't think that argument has much traction with those who don't already agree with me). Though it is clear that CONSTITUIONAL provisions have to be respected, sometime statutes don't (maybe, see above). Though I think the parts of these things that people have the most problems with more closely resemble Youngstwon (domestic steel seizure) than C-W (international arms trade).
1.3.2006 12:10am
KMAJ (mail):
Thank you, Pooh,

My own personal observation, for what little it is worth, is that Youngstown and Myers have more interaction than Youngstown and Curtiss-Wright. Youngstown's emphasis is more focused on the domestic angle, Curtiss-Wright focuses more on foreign policy. If, as Bush alleges, only those communications that have at least one end outside the country are being surveilled, it seems to be straddling both cases. Which will have the overriding influence ? Curtiss-Wright seems to focus on the ability of the executive to 'faithfully carry out his Article II duties' regarding foreign policy, including war time, unfettered by the legislative branch incursions that would encroach on his authorization to do so effectively. Myers was a case that was initially about his appointment powers, thus more domestic in nature, but cast a wide net in its decision. Youngstown is recognized as having refuted some, but not all, of the dicta in Myers, but as having no impact on Curtiss-Wright.

Justice Sutherland posited the doctrine that the power of the National Government in foreign relations is not one of enumerated powers, but rather is inherent. The doctrine
was then combined with Hamilton's contention that control of foreign relations is exclusively an executive function with obvious implications for the power of the President.

Some scholars have had problems with Sutherland's opinion, but the only case law I came across that seemed to counter it was Kent v. Dulles, which dealt with presidential discretion in the issuance of passports.
1.3.2006 12:58am
A.S.:
Medis wrote: And in any event, his (5) is misformulated--there actually isn't a constitutional problem in a Youngstown Category 3 case if Congress's Article I power overlaps with the President's "inherent" Article II power. In such a case, Congress gets what it wants. Hence, the President has no "right" to contradict the will of Congress despite his overlapping "inherent" power, and thus there is no difficult constitutional problem to be resolved.

I think you misunderstand Sunstein's argument 5. What Sunstein argues, I think, is that where Congress's actions are ambiguous, a court should try to interpret Congress's action in a way that reinforces the President's power. That is, where Congress acts in some way ambiguously, the court should try to interpret Congress's action in a way that would place the issue in Jackson's Category ONE, and avoid if at all possible placing the action in Category three.

I've argued on other threads that I think this is what a real court would actually do, if the issue of the NSA program ever reached court. Congress has acted ambiguously, where FISA arguably contradicts the Executive's power to conduct the NSA program, whereas the AUMF arguably supports such Executive power. I think a court would essentially punt - it would say that it is interpretting the AUMF to support the NSA program (thus placing the case in Jackson's category ONE). If the Legislative branch disagreed, it could act unamiguously by passing legislation that clearly states that the AUMF does not authorize the President to conduct the NSA program.

I'll add that I think the Dames &Moore court basically acted consistently with Sunstein's type (5) argument. That is, the court could have found a conflict between Congress's actions and the President's actions regarding Iranian claims. But the Court purposesly avoided such a conflict by interpretting Congress's ambiguity to support the President's action. So, in the end, because the Court in Dames &Moore wanted to avoid a conflict between the Executive and Legislative branches, it interpetted Congress's action in a manner that made the case basically fall under Jackson's Category One.

One other point: I'm not so sure that Jackson's category three means that, as long as Congress has the power to take action, "Congress gets what it wants." But even if that is the proper interpretation of Jackson's language, I don't think any other cases have held that that is the correct result. While Rehnquist, in Dames &Moore, held that the Jackson concurrence was useful analystically, I don't think Rehnquist's opinion can be read to mean that the Court agreed that the result in Jackson's Category three is exactly what Jackson said it was. It may have been Jackson's opinion that, in all cases where Congress has power, "Congress gets what he wants;" as far as I'm aware, it hasn't ever been any other court's.
1.3.2006 1:16am
Pooh (www):
This gets us back to a point I've been making all along - there are certain powers that are indeed 'plenary'. But in ensuring that those powers are not exceeded, we inherently limit them by subjecting them to review.
1.3.2006 1:19am
Jamesaust (mail):
I find it disturbing that the original quotation from Jackson cited by KMAJ is not only misinterpreted by him, nor even highly selective of which sentences to strip out of context, but is presented (Oliver Stone -like) as if the two paragraphs even existed within the original.

In the middle of KMAJ's first paragraph, the Justice states: "[The President] has no monopoly of "war powers," whatever they are." Jackson draws out the multiple ways in which the Constitution delegates "war powers" to Congress, not to the President, including the creation of the military to command and its regulation as well as calling forth the militia (Note: Congress not the President calls the militia up for duty; the militia at that time was THE military of the period as virtually no standing army was maintained in the early Republic.)

Later KMAJ makes much of the "turned inward" sentence. He misinterprets it - the key condition is not the "economic struggle" clause but the one within the "turned inward" clause: rebellion. No doubt, this is because of the convenience of ignoring Jackson's two paragraph long expiation of rebellion with regard to the Third Amendment. (Summary: The President's powers to do not allow ignoring this Amendment's limitation on 'seizing' housing for troops "even [if it were] essential for the military.") The same analysis applies to the Fourth Amendment question at hand: The President may not ignore the Fourth Amendment limitations on unreasonable searches regardless of the "essential" security claims put forth. (The Rovian reinterpretation of the Third Amendment - it applies only during peacetime because military housing is obviously part of the President's unilateral military powers.)

Jackson then finishes his point at the end of KMAJ's second paragraph (before making the 'even if essential' remark:
[The President's] command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

Indeed, the interesting point is that Congress possess "war powers" (of which there are many), not the President. Serving as Commander-in-Chief is the sole "war power" of the Executive. By contrast, clause-after-clause enumerates the Legislature's war powers (without even needing to invoke the revenue power, the court-establishing power, the piracies (a/k/a, terrorism) power, let alone the necessary and proper power). All of which fits perfectly within Hamilton's explanation of the Executive in Federalist no. 69 - unlike the King, the President's powers exist solely "as first General and admiral of the Confederacy" (no, not that Confederacy). In Britain, all of the "war powers" were the King's powers not Parliament's. The sole reason given for the Commander exception in our system is the necessity for immediate and unitary action that a committee (Congressional or otherwise) would be inherently incapable of executing. How ironic that after 200 years of eliminating the monarch's monopoly on war powers, that this one exception would eat the rule.
1.3.2006 2:15am
Defending the Indefensible:
Jamesaust (quoting Jackson):

"No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

Well done, sir.
1.3.2006 2:36am
KMAJ (mail):
Jamesaust,

While you have every right to your individual interpretation, unless you can cite any specific Supreme Court ruling that mirrors yours, it is simply your opinion. I would be willing to daresay that the Supreme Court will NOT rule in the fashion you interpret Jackson on the NSA program. My argument has been about its applicability in the NSA case. Your interpretation reveals more about your political leanings than it does about the actual relevance to the NSA surveillance, hence your need to insert pejorative invective.
1.3.2006 3:03am
minnie:
Justin: Pointing out equally that Minnie's argument that charity has no value to the recepient of the charity, only to the donor (and thus Jesus and Adam Smith were best of friends) is a selfish position.

Justin, although I take issue with your restatement of my position, I would nevertheless point out that it is widely recognized that charity begins at home. This would indicate that the person giving it is the one entitled to the benefit, as the "point of origin" would be the home of the donor, not the recipient, who may not even have a home. Also, the person giving it is the one who gets the tax deduction. If charity were meant to benefit the recipient, then why would the tax benefit go to the donor? Do you think our tax codes were written by people who are fou? Heartless? What?

I realize you are not a tax lawyer, but these are the types of nuances you have to take into account when examining these deceptively normative issues.
1.3.2006 3:30am
Jamesaust (mail):
to KMAJ,

Sir, I am at a loss as to how virtually unedited extensive quotations taken from a concurring Supreme Court opinion (or the Constitution and the Federalist Papers) constitutes my "interpretation." That concurring opinion appears to have no fundamental conflict with the remaining majority, and indeed that concurring opinion has subsequently been endorsed in substance (although not practice) by a unanimous Supreme Court in 1981. I do not know what further citation you wish other than a demand for a case involving identical facts (a technological impossibility).

The corrected opinion by Jackson presents a roadmap for the NSA case, right on down to analogy to military necessity under the President's constitutional powers. The NSA case is a controversy solely because it is a domestic matter. Intercepted communications outside the U.S. or even of U.S. citizens outside the U.S. do not trigger the Fourth Amendment.

I also note in passing: no effort from you to dispute the corrected quotation, nor apparently any evolution in your argument resulting from the turning upside-down of the very "quotation" you had relied upon so extensively. How does one arrive at the same conclusion regardless of fundamentally different evidence?

You know nothing regarding my political leanings as I failed to express any (unless umbrage at misleading quotation is a political view).

Regarding "pejorative invective" I can only note the identical artifically constructed paragraph has been posted (earlier) elsewhere (with at least ellipses)
http://powerlineblog.com/archives/012708.php
and while others may feel more harsh conclusions should be drawn, the only "invective" I shall hurl is a general admonishment that when making an argument that relies heavily on what someone else has said it is wise to have actually read the original statement for oneself rather than rely upon another's (heavily edited and misleading) hearsay version of it.
1.3.2006 4:39am
Defending the Indefensible:
Minnie,

You make many good points, but I think you dilute them with your discurses into objectivist epistemiology.
1.3.2006 4:49am
Perseus:
To those who like to cite Fed. 69 (written by Hamilton), I would simply reply by citing Pacificus No. I (also written by Hamilton).
1.3.2006 6:15am
KMAJ (mail):
Jamesaust,

Clearly your political leanings were hinted at with your 'Rovian' insinuation, not that I level any criticism of anyone's partisanship.

The one point I have made at various times, is the avoidance of acknowledging that 9/11, terrorism and technological advancements in commiunications and weaponry, have changed the legal paradigm, which, while not negating Jackson's concurrence, weakens its application. Clearly, in any logical sense, cases post 9/11 are going to carry more weight as precedence, i.e. Hamdi and Sealed Case. Any attempt to attach Jackson's opinion through some divining of an emanation of what his opinion would be or how the shift in the legal paradigm would have impacted his thought process is foolhardy at best. It would be safe to say it would be changed, but none of us, can presume to know the extent.

Out of context quotes are pretty much part and parcel of most writings, unless one is writing a treatise or thesis, even then, it is usually a snippet with a footnote. Even the writings of judicial opinions do not use the full text, but employ footnotes. So that you simply do not like the selection I used is neither here nor there.

The simple fact is, the scope of executive branch authority, or that of the other branches, is one that has long been debated. If you are honest, you will admit that there is certainly enough case law and writings to support both sides on the issue, whether you wish to adhere to the expanded Hamilton/Jefferson/Madison/Jackson of executive authority or you champion the limited power governed by a superior legislative branch oversight. Even the esteemed Judge Jackson opined in Youngstown:

"...may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other."


Clearly, Hamilton was the architect of the executive branch, and his defense of Washington's issuance of a neutrality proclamation set forth the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II.

(32 WRITINGS OF GEORGE WASHINGTON 430 (J. Fitzpatrick ed., 1939). See C. THOMAS, AMERICAN NEUTRALITY IN 1793: A STUDY IN CABINET GOVERNMENT (1931).

James Madison in the Convention debates creating the presidency stated:

''Were it once established that the powers of war and treaty are in their nature executive; that so far
as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.''


Hamilton's view of executive authority was strengthened in 1801 when Jefferson/Madison came to power with their latitudinarian construction of implied federal powers. The current view of the executive branch is recognized by many scholars as the construct, for better or worse, as the contribution of Andrew Jackson. The power given to each branch have been in a state of flux through out history. I do not think you can seriously claim that any powers Bush is trying to invoke with the NSA program comes close to those invoked by past presidents, Lincoln and habeas corpus, FDR and Manzanar, among others, LBJ and Nixon, with their abuse of power.

We can go back and forth on which case supports this or that, Myers, Youngstown, Curtiss-Wright, Keith, Truong, Sealed Case, Hamdi and what you end up with is no definitive answer, especially one that deals with the current War on Terror.

The real point that emphasised your political leaning was the entrenched insistence of the correctness of your opinion that completely ignored any contrary opinion and lack of willingness to concede even slightly that your interpretation is not necessarily the right one. That is generally the venue of one with very zealous political opinions.

I have no problem if that is your beliefs and feel that those are the tactics you need to engage in to try to influence people. It does work with some people who allow themselves to be bulldozed. I read opinions from left and right, and then square them with other things I have read, researched and learned. Just like any other person, my positions are influenced and biased by my personal beliefs. But I am not one to be bulldozed by anyone, nor am I intimidated. If treated with respect, it will be returned, if not, its no skin off my back, its the other person's problem and no concern of mine.
1.3.2006 6:30am
Justin (mail):
Minnie, while I think you're a good poster and I find this a fascinating debate, this does not appear the time or the place. I'd have you email me, but I'm posting anonymously for the time being. If this changes at some point (it won't for at least several months), I'd love to discuss the issue further. While I'm not a tax lawyer, I have taken tax law, and I have...other theories why we give tax breaks to donors, theories that comport with my understanding of charity.
1.3.2006 10:09am
Medis:
AS,

If there was in fact real ambiguity about what Congress intended with the surveillance laws as amended by the USA-PATRIOT Act, then perhaps the Court would take into account avoiding a conflict between the President and Congress as it interpreted those laws. However, I don't think there really is any such ambiguity. Moreover, Sunstein tries to bring this within the doctrine of avoiding difficult constitutional problems, and my point is simply that there is not in fact a difficult constitutional problem to avoid if Congress intended FISA as amended by the USA-PATRIOT Act to govern.

KMAJ,

The plurality opinion in Hamdi cites Youngstown Steel for the proposition, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." As far as I can tell, that opinion does not cite Curtiss-Wright.

In dissent, however, Justice Thomas does make essentially your argument, and indeed cites Curtiss-Wright.

So, I'm not sure if Hamdi is a very helpful precedent for you--and indeed, it does not seem to establish any sort of new paradigm for these cases. Of course, maybe this case would present distinguishable facts--but if battlefield detentions do not trigger exclusive Presidential war powers, then I would not hold out much hope that electronic surveillance of international communications will do so.
1.3.2006 10:52am
Jamesaust (mail):
"Out of context quotes are pretty much part and parcel of most writings ... So that you simply do not like the selection I used"

To quote someone so selectively as to change their own statement's point is an action beyond excuse. One would not make such a statement in a treatise because the editors (for their own reputation's sake) would not allow it. At best, it is akin to a juvenile pasting together of a public figure's audio/video to make the person speak falsely - something like getting the Pope to endorse Hitler (or Pepsi). At worst, if done in a thesis, it could get a student expelled.

There is plenty of evidence to make contrary arguments. Given that, why the need to cite to counter-authority by constructing that authority's view to be their opposite? You say "selection I used." I say selection you copied from someone else. You say bulldozed. I say caught red handed.

I also note you haven't taken my admonishment to heart. You note the current administration's minor claims besides those of earlier one's. If you had read Jackson's opinion you would note his citation to FDR's adherence to Congressional limitation of his Commander-in-Chief powers.

Nor again in citation of Madison when his entire argument is (and often cited for) opposition to Hamilton's broad executive power views.

Indeed, even under the Hamilton position ("the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument"), unilateral executive authority fails. Article II expressly grants Congress the "war powers" they need to regulate domestic military intelligence gathering and Congress has so exercised that limitation. What's more, the Fourth Amendment added subsequently to the Articles I&II enumeration of powers restricts both within the context of the NSA issue.
1.3.2006 11:28am
byomtov (mail):
byomtov,

I think your objections are more political in nature and can be attributted to the vitriolic polarization that exists today. Don't get me wrong, the right was just as guilty of it in the previous administration.

Personally, I find the assignations of evil intent and character assassination distasteful and lead to a deterioration of substantive debate. I have no doubt that both Clinton and Bush love this country, that both are human and, as such, are subject to human frailties to which we are all subject.


KMAJ,

Please to not speculate as to my motives. Whatever you imagine them to be, they have no bearing on the points I raised. I engaged in no character assassination. I responded to three specific claims you made:

First, that the program is limited in scope.

What I said was that we don't know the scope. It's secret. We have no independent information as to the scope. In claiming it is "limited" you are making an unsubstantiated claim.

Second that the program was reviewed by DOJ.

True, but the implication that therefore it must be OK is not. The AG is appointed by the President. He is not impartial in these matters. This is a statement of fact, having nothing to do with "vitriolic politicization." I would no more accept the AG's opinion about the legality than I would accept your lawyer's opinion of the legality of something you did if we were involved in a private legal dispute.

Third, that Congress was informed.

This is a very broad assertion. I was pointing out the specific and very limited extent of this notification. Telling this small group what you are doing, when they are not allowed to tell anyone else, is not "informing Congress." It is a transparent and feeble CYA attempt.

Smithy,

It is true that I did not address the Article II argument. That is because the purpose of my comment was to address the three specific matters raised by KMAJ.

FYI, however, I think the Article II argument is nonsense. As The Original TS points out, it amounts to a claim that the President has unlimited dictatorial powers during some ill-defined "wartime." No number of Constitutional lawyers and memos and over-intellectualized arguments can show that.
1.3.2006 11:50am
A.S.:
Medis writes: If there was in fact real ambiguity about what Congress intended with the surveillance laws as amended by the USA-PATRIOT Act, then perhaps the Court would take into account avoiding a conflict between the President and Congress as it interpreted those laws. However, I don't think there really is any such ambiguity. Moreover, Sunstein tries to bring this within the doctrine of avoiding difficult constitutional problems, and my point is simply that there is not in fact a difficult constitutional problem to avoid if Congress intended FISA as amended by the USA-PATRIOT Act to govern.

Even if there is no ambiguity with respect to FISA itself, I think there is substantial ambiguity in how the AUMF affects FISA (if at all). My point is that the court can avoid a conflict between the legislative and executive branches simply by finding that the AUMF (a) constitutes an independent authorization by legislative branch to conduct the NSA program (superceding and impliedly repealing FISA), and/or (b) constitutes an "statutory exception" of the type described in Section 1809.
1.3.2006 12:21pm
A.S.:
BTW - it seems to me that this entire idea of the Article II argument being an argument in favor of "dictatorial power" is really extremist rhetoric.

Can someone explain to me why the idea that the executive has plenary power makes himsomehow a "dictator"? We accept that the legislative branch has certain plenary powers; why isn't Congress a "dictator" (or, I suppose, an oligarchy)? We accept that the judicial branch has certain plenary powers; why aren't the courts "dictators" or oligarchs?

Moreover, there are plenty of plenary powers that we DO accept the President has without making him a dictator. We accept that he can pardon people at will; does that not make him a dictator? We accept that he can veto legislation in his sole discretion; doesn't that also make him a dictator? So why is this idea that he may act as Commander in Chief in his sole discretion make him "a dictator"? That isn't to say that he can do anything, anywhere, at any time. It is simply to say that he has certain powers a Commander in Chief that he can exercise in his sole discretion.

So this argument that the exercise of his power as Commander in Chief is different and making him a dictator is nice DNC spin, but really that's all it is.
1.3.2006 12:32pm
Medis:
AS,

Unfortunately, I have yet to see Sunstein actually grapple with all the relevant statutes. Personally, if it were just a matter of the 2001 AUMF satisfying 1809 as it existed prior to the 2001 AUMF (which would be the same basic setup as Hamdi), he might have a point. But there are at least two other statutory provisions that make this case very unlike Hamdi--18 USC 2511(2)(f) and 50 USC 1811. Moreover, there is a very significant timeline difference--the USA-PATRIOT Act was passed after the 2001 AUMF, and its stated purpose was to deal with the GWOT.

So, I think the problem with Sunstein's suggestion is that in this case, there is a lot of evidence about the intentions of Congress, all of which suggests that they intended FISA, at least as amended by the USA-PATRIOT act, to apply to electronic surveillance even when they have passed something like the 2001 AUMF. Therefore, it would actually thwart the will of Congress to view the 2001 AUMF and 1809 in isolation, ignoring all this other evidence about congressional intention.

And that is my basic point about Category 3--it would defeat the entire purpose of Category 3 reasoning if the Court deferred to the President on issues of statutory interpretation. Rather, the Court--following its own constitutional mandate to interpret the law--must first come to an independent conclusion about what Congress intended. If the Court applies its tools of statutory interpretation and still finds the intent of Congress unclear, then I could see resolving such an ambiguity in favor of avoiding a clash. But I don't think the Court should use the Administration's statutory claims as evidence of an ambiguity if their own independent review of the statutory evidence does not suggest an ambiguity.
1.3.2006 12:46pm
Medis:
A.S.,

On the "dictator" issue--the precise problem is the lack of limiting principles in the view that the President has some exclusive powers as Commander in Chief that would allow him to violate laws passed by COngress as authorized by their Article I power to regulate the military.

In other words, you say, "That isn't to say that he can do anything, anywhere, at any time. It is simply to say that he has certain powers a Commander in Chief that he can exercise in his sole discretion." But what defines these "certain powers"? What authorizes him to exercise these powers to the exclusion of the Article I powers of Congress? What does it mean to exercise these powers in his "sole discretion"?

In contrast, with something like the veto power, or the pardon power, we know the boundaries of the relevant power. We also know why these powers are exclusive to the President, and what that means--essentially, because the Constitution specifies the way in which Congress can legislate, and places the actual judicial power in the Courts, and therefore the Constitution defines exactly what role each branch plays in these various activities.

So, as I noted, this broad assertion of undefined "Commander in Chief powers", and this undefined assertion that such powers are exclusive of Congress and can be exercised at the President's "sole discretion", is fundamentally unlike these other powers. And that is precisely because these other powers fit into, and are required for, a basic framework of checks and balances, whereas this description of the President's war powers seems designed to free him of any such checks and balances within a broad area of undefined scope.
1.3.2006 12:58pm
jukeboxgrad (mail):
Jamesaust said "others may feel more harsh conclusions should be drawn [regarding statements by KMAJ]"

That "others" would be me. I was in the process of considering ascribing some credibility to KMAJ, but helpful remarks by Jamesaust brought me to my senses.

KMAJ quoted Jackson here. KMAJ offered two paragraphs, with no ellipses, and no URL. I assumed Jackson wrote exactly those paragraphs, in the form they were offered by KMAJ. I was not moved to verify this, because I assumed KMAJ was trustworthy.

What Jackson actually wrote is here (or here). It turns out that KMAJ quoted Jackson without inserting ellipses where it would have been proper and necessary to do so. Also, in my opinion, the text that was covertly omitted substantially alters the meaning of the overall passage. In other words, KMAJ cherry-picked, and he concealed the fact that he was cherry-picking.

Some fairly careful googling tells me that there seems to be exactly one other place on the web that quotes Jackson in virtually the identical distorted manner as KMAJ. That place is here. (Of course I first became aware of Hinderaker's post only because Jamesaust helpfully cited the URL.)

In fairness to Hinderaker (who doesn't deserve much), I should mention what Jamesaust mentioned: at least Hinderaker used ellipses (although, like KMAJ, Hinderaker pointedly omitted a URL, making it somewhat harder for the reader to verify the citation). It appears that KMAJ saw fit to delete those ellipses (and of course KMAJ provided no URL, either to Hinderaker or directly to Jackson). Aside from the missing ellipses (and some gratuitous bolding), KMAJ's highly misleading presentation of Jackson's words is identical to Hinderaker's highly misleading presentation of those words. And I can find that presentation nowhere on the web, aside from the work of Hinderaker and the work of KMAJ. (It's worth noticing that KMAJ posted about 27 hours after Hinderaker posted.)

In other words, it appears that KMAJ was impressed by Hinderaker's deceptive work, and decided to proliferate it, while also making it even more deceptive.

KMAJ's non-defense ("out of context quotes are pretty much part and parcel of most writings ... that you simply do not like the selection I used is neither here nor there") is singularly unconvincing, as Jamesaust has explained.

Hinderaker happens to be a shameless hack. I have documented this in excruciating detail, here and elsewhere. I also have reached this conclusion on the basis of extended direct correspondence with him.

I already knew Hinderaker can't be trusted. If not for Jamesaust, I would not have noticed what is now obvious: KMAJ also can't be trusted.
1.3.2006 1:06pm
Pooh (www):
Jukeboxgrad, well said. I feel slightly led down the garden path by KMAJ, as I felt I was discussing the matter in good faith. (Of course, the fault is partially mine for not realising that the feeling I had that Jackson didn't say what I thought he said was actually KMAJ not quoting what Jackson said in a proper manner).

I am not best pleased.
1.3.2006 3:23pm
The Original TS (mail):
Out of context quotes are pretty much part and parcel of most writings, unless one is writing a treatise or thesis, even then, it is usually a snippet with a footnote.

Not in legal writings, they aren't. Omitting the ellipses in a brief with the effect it had here would be an ethical violation.

There's a world of difference between making the best argument you can and making up the best argument you can.

I find KMAJ's conduct reprehensible -- it certainly does not belong on this blog.
1.3.2006 3:40pm
Andrew J. Lazarus (mail):
I'm sorry to have missed so much thread on "vacation", or whatever it is when the airline loses all your bags.

Anyway, all Original TS, Bernard Yomtov, and some others have it nailed. The so-called Article II argument—although it really derives from pimple-faced boys' excitement at learning that James Bond has a Licence to Kill (and seduce) in Defence of the Realm and not any recognizable jurisprudence—proves too much. Its advocates have yet to articulate any boundary on Executive action so long as some indefinite War on Terror is in progress. Can the President order the Army to rape the inhabitants of Heidelberg? If not, under what authority may he disclaim the McCain Amendment and reassert his authority to suspend the operation of the ICAT? Until the Bushlickers have identified the limits of Executive power, it is completely reasonable to label their views as un-American or anti-American. The relationship between the Executive, the citizenry, and the law that they envision is not ours.
1.3.2006 3:58pm
A.S.:
Medis writes: On the "dictator" issue--the precise problem is the lack of limiting principles in the view that the President has some exclusive powers as Commander in Chief that would allow him to violate laws passed by COngress as authorized by their Article I power to regulate the military. ... But what defines these "certain powers"? What authorizes him to exercise these powers to the exclusion of the Article I powers of Congress? What does it mean to exercise these powers in his "sole discretion"?

I don't see the issue as any different that determining the limits of Congress's power under Article I. After all, Congress does not have unlimited plenary powers under Article I, does it? What defines what powers the Congress has and doesn't have? Whatever answer you give for Congress is equally applicable for the Executive Branch.

Congress too has plenary powers under Article I that it may exercise in its sole discretion. But the fact that Congress has certain powers (enumerated, right?) doesn't imply that Congress has unlimited, dictatorial powers. The limitation on Congress's power is found in the Constitution. Similarly, the limitation on the Executive's power is found in the Constitution. That's what's meant by co-equal branches. I think if you read Black's opinion for the Court in Jackson you'll see what I'm talking about (remember that Dames &Moore cites Black's opinion favorably too).
1.3.2006 5:08pm
Pooh (www):
A.S., Huh?

The limitation on Congressional power is A) the Courts' ability to determine that they have in fact acted outside of their authority. B) The veto power. Not to mention the fact that for Congress to do anything it has to be voted on, in the open, by two bodies. Where are the parrallel constraints on exercise of executive power, esepcially where such action can be taken in secret?

Further, describing Congressional power over any matter as 'plenary' is credibility-straining.

Finally, arguing that Executive power is constrained by the Constitution one on hand while arguing that the exercise of said power cannot be constrained by other Articles (and later passed Amendments) on the other is offering a null set as evidence of the claimed limitation.
1.3.2006 5:47pm
A.S.:
Pooh wrote: The limitation on Congressional power is A) the Courts' ability to determine that they have in fact acted outside of their authority.

And the limitation on Executive power is the Courts' ability to determine that he has in fact acted outside of his authority. But for both the Legislative and Executive branches, the real issue is determining when that branch has acted "outside of [its] authority". How does a court determine that Congress has acted outside its authority? You answer me that, and I can turn around and answer the analagous question for the Executive.

Further, describing Congressional power over any matter as 'plenary' is credibility-straining.

Why? Congress doesn't have inherent power to pass laws? I think it does, provided the laws are within the enumerated powers set forth in the Constitution.

Finally, arguing that Executive power is constrained by the Constitution one on hand while arguing that the exercise of said power cannot be constrained by other Articles (and later passed Amendments) on the other is offering a null set as evidence of the claimed limitation.

I wouldn't argue that the Executive is not constrained by the Bill of Rights. Just as Congress, in its exercise of its plenary power to pass laws, is contrained by the Bill of Rights, so too is the Executive, in its exercise of its plenary power, constrained by the Bill of Rights. Hence the 4th Amendment analysis Orin undertook.
1.3.2006 5:56pm
Medis:
A.S.,

You say, "Congress too has plenary powers under Article I that it may exercise in its sole discretion."

But I'm not sure what you mean in this context. I do think Congress has broad authority to pass laws regulating the armed forces. Nonetheless, those laws are subject to the veto, and they are also subject to constitutional review by the Supreme Court. More basically, Congress could not adjudicate cases arising under those laws itself, nor could it direct the enforcement of those laws in particular cases.

So, I wouldn't claim that Congress could exercise these powers in its "sole discretion." Rather, when it comes to military matters, Congress can just play its traditional legislative role, and the other two branches of government--executive and judicial--still have their parts to play (including some limited interference with the making of law itself).

But what some are claiming on behalf of the President's Commander in Chief power is quite different. They are apparently claiming that he really does have "sole discretion" in some ill-defined area, such that Congress is excluded from passing laws in this area, and that the President himself is free to establish such rules and regulations as he sees fit. Similarly, they argue that the courts have no role to play in adjudicating cases arising under these rules.

So, this sort of argument fundamentally changes the structure of our government within this ill-defined area by unifying all three sorts of power--legislative, judicial, and executive--within the hands of a single branch, and indeed within the hands of a single person. And that really is an extraordinary proposition.
1.3.2006 6:11pm
Medis:
A.S.,

I'm not sure you are representing the arguments I have in mind. For example, you say, "And the limitation on Executive power is the Courts' ability to determine that he has in fact acted outside of his authority." But some of those making these arguments have claimed that the courts have no jurisdiction over cases in which the President is exercising these exclusive powers. So, if the courts are not adjudicating these cases, how are they supposed to limit the President's use of these powers?
1.3.2006 6:17pm
A.S.:
Medis wrote: But I'm not sure what you mean in this context. I do think Congress has broad authority to pass laws regulating the armed forces.

And neither the exective nor the judiciary may tell Congress whether or not to pass a law, nor what provisions the include or not include in a law. Accordingly, Congress has sole discretion over what laws it passes.

Nonetheless, those laws are subject to the veto,

Which may be overridden.

and they are also subject to constitutional review by the Supreme Court.

For what purpose? I'd argue that the "Constitutional review" of acts of Congress is exactly the same as Constitutional review of acts by the Executive. A court reviewing an act by the Legislative Branch must ask (i)whether the act is within that Branch's power and (ii) whether the act runs afoul of some other Constitutional provision (e.g., the Bill of Rights). Similarly, a court reviewing an act by the Legislative Branch must also ask (i) whether the act is within that Branch's power and (ii) whether the act runs afoul of some other Constitutional provision.

So the checks and balances on Executive action under his plenary power under Article II are exactly the same as the checks on Legislative power under its Article I power.
1.3.2006 6:26pm
A.S.:
But some of those making these arguments have claimed that the courts have no jurisdiction over cases in which the President is exercising these exclusive powers.

I wouldn't argue that. A court may determine whether the Executive branch has acted in a manner that exceeds his Article II powers (e.g., as in the Youngstown case) just the same as a court may determine that the Legislative branch has acted in a manner that exceeds is Article I power (e.g., as in U.S. v. Lopez).
1.3.2006 6:32pm
Noah Klein (mail):
A.S.:

I don't understand your point. Are you saying what Congress did in FISA violated the Constitution? If that is what you are saying I would disagree with you and would point out there are many relevant passages in Article I you should read. To me, you are just laying out the basic framework of our government.

Noah
1.3.2006 6:48pm
Medis:
A.S.,

Right, Congress has a great deal (although not unlimited and not exclusive) discretion about how it LEGISLATES in military matters, but it cannot adjudicate cases arising under those laws and it cannot direct the execution of those laws.

And if you are only claiming that the President has discretion over how he executes laws regulating military matters, but he cannot adjudicate cases arising under those laws or substitute his own regulations for those Congress has passed, then I think we are in agreement.

But some take a very different position--they claim Congress cannot legislate in this area and that the President can substitute his own regulations for those passed by Congress. Similarly, they argue that courts simply have no jurisdiction to hear cases arising under the President's exercise of these powers. And those are the arguments people find extraordinary.
1.3.2006 7:01pm
A.S.:
Right, Congress has a great deal (although not unlimited and not exclusive) discretion about how it LEGISLATES in military matters, but it cannot adjudicate cases arising under those laws and it cannot direct the execution of those laws.

And the President has a great deal of discretion about how he conducts his function as Commander in Chief, but he cannot adjudicate cases arising in military situations requiring an Article III judge, nor can he direct Congress to legislate in military matters. There are three co-equal branches, and they all have functions into which the other branches may not intrude.

Now, Congress has many many functions: it passes laws, it appropriates money, declares war, etc. Similarly, the President has multiple functions. He is directed to execute the laws passed by Congress. He is also the Commander in Chief, which is a separate function from "executing the laws passed by Congress" (see Black's opinion for the Court in Youngstown, which analyzed three separate functions of the President for purposes of whether any of the three could support Truman's seizure of the steel mills). So let's not pretend that all the President does is "execute the laws"; he has wider functions that that under the Constitution.

But some take a very different position--they claim Congress cannot legislate in this area and that the President can substitute his own regulations for those passed by Congress.

No, they are saying that the President may act in accordance with his own power under the Constitution in his limited function as Commander in Chief. And that Congress may not Constitutionally take away his power as Commander in Chief any more than Congress could Constitutionally take away the President's power to veto legislation or issue pardons.

Similarly, they argue that courts simply have no jurisdiction to hear cases arising under the President's exercise of these powers.

As I said above, that's not an argument I would make.
1.3.2006 7:47pm
A.S.:
Noah asks: Are you saying what Congress did in FISA violated the Constitution?

If, and only only to the extent that, FISA purports to take away the President's power as Commander in Chief.

I also believe that the War Powers Resolution is unconstitutional (as has every President since its passage), because it purports to take away the President's inherent right to command our troops in battle. So its not like Congress has never done anything of this sort (aggradizing the Legislative branch at the expense of the Executive branch) before.
1.3.2006 7:52pm
Wince and Nod (mail) (www):
jukeboxgrad,

You are absolutely correct that leaving out the ellipis is wrong, wrong, wrong. Yet this statement goes over the line:

"Hinderaker happens to be a shameless hack."

Especially since Hinderaker left the ellipsis in! And, while we all disparage the ellipsis, if you truly believe the materiel you are elliding is irrelevant, it does lend useful consision.

Why, when you are making some of the best comments here, do you feel the need to undermine your credibility like that? I think Medis's example is instructive. The man is unflappable, courteous and patient, even on the twentieth go round. I could really learn from a guy like that!

Yours,
Wince
1.3.2006 8:36pm
Freder Frederson (mail):
I also believe that the War Powers Resolution is unconstitutional (as has every President since its passage), because it purports to take away the President's inherent right to command our troops in battle.

I would argue that the War Powers Resolution is unconstitutional because it gives the President powers that the Congress has no right to give him, that is it gives the President the right to wage war without the explicit permission of the Congress, a duty that the Constitution vests in the Congress and they have no right to delegate to the executive.
1.3.2006 9:00pm
jahoulih:
Wince, does it go over the line to say that Hinderaker is a shameless hack because he is not a shameless hack, or because one may never say that anyone is a shameless hack even if he is?

If Hinderaker is in general a shameless hack (and he is, though his hackery may not be on display in this particular instance), then I fail to see how it diminishes jukeboxgrad's credibility to say so.

I think the legal community tends to suffer from an overabundance of clubbiness, prissiness, and politesse that prevents people from saying that Hinderaker is a shameless hack, or John Yoo is a moral monster, even when they know these things to be true.
1.3.2006 9:00pm
Wince and Nod (mail) (www):
jahoulih,

Read the rules below. You want invective, it is easily found elsewhere. Do you think your comments, for example, give me a good impression, or that I find them pleasant reading?

Yours,
Wince
1.3.2006 9:06pm
Medis:
A.S.,

But what do you mean by "take away his power as Commander in Chief"?

A straightforward reading of that proposition would be that Congress cannot place someone else in command of the armed forces, bypassing the President. And, of course, something like FISA does not do anything of the kind.

But some want to argue that the President has the right as Commander in Chief to replace the laws Congress passes to regulate the armed forces--which would include laws like FISA--with his own rules and regulations. It is precisely this claim to lawmaking power--not just military command, but the right to make his own military law--that concerns people, because it represents a departure from the fundamental structure of our government. And as the Court stated in Youngstown:

"The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times."
1.3.2006 9:07pm
jahoulih:
Wince, the matters under discussion here are very troubling, and I hardly think anything written on them could constitute "pleasant reading." I am sorry if you do not have a good impression of me; I appreciate your admonitions and will try to avoid invective. But it seems to me that the idea that invective undermines credibility depends very much on whether the contents of the invective are true or false.
1.3.2006 9:25pm
jukeboxgrad (mail):
wince,

Thanks for your kind words.

Along the lines of what jahoulih said, I would be very disinclined to call someone a shameless hack unless I was in a position to show proof. Such proof is on display, here (and also in other places, some of which are linked via that citation). I invite you to review it. If you can show that my proof is false or incorrect, I welcome the correction and education and I will make haste to offer Hinderaker my public apology.

Calling someone a shameless hack is not something I do lightly. Hinderaker worked hard to earn the tag. In times like these I think it's especially important to say what's true, without beating around the bush, even when it's unpleasant. Especially when it's unpleasant.

By the way, even though Hinderaker used the ellipses properly, in my opinion he did not quote Jackson fairly.
1.3.2006 11:36pm
Andrew J. Lazarus (mail):
I do wonder why the hypotheticals keep getting ignored. Let's try a remarkably simple one: Can the President, using his Article II powers, order the manufacture, deployment, and use of chemical weapons, even if Congress passes laws and ratifies treaties prohibiting such manufacture and use?

This is a good one, because while the cases of rapine or summary execution might implicate Constitutional rights, this certainly does not.

When last raised (just before I left town), the pro-Bush crowd was reduced to claiming that Congress could cut off funding for chemical weapons. No one could explain why that law would be more binding on the King-President of Team Bush than the underlying laws, nor what would happen if the President funded the chemical weaponry through charitable (cough!) donations.

I repeat: this argument is not about some subtle construal of Article II, the Federalist, or anything else. It's about whether we are too frightened to retain a democracy in the fact of the false comfort of the Protecting Tyrant.
1.4.2006 12:11am
A.S.:
Media wrote, quoting Black's opinion for the Court in Youngstown: the Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times

But one wonders why you post this quotation. The President, in conducting the NSA program, has not engaged in any lawmaking. The NSA program is part of what Black termed "day-to-day fighting in a theater of war" (since intelligence gathering is a fundamental war-fighting activity, and, as Black wrote, "theater of war" is "an expanding concept").

As Black acknowledges, day-to-day fighting in a theater of war is "an exercise of the President's military power as Commander in Chief of the Armed Forces." As such, it is reserved to the Executive Branch, which is co-equal with (and not subordinate to) Congress. Accordingly, Congress could not Constitutionally encroach upon that power.
1.4.2006 2:08am
Wince and Nod (mail) (www):
jahoulih and jukeboxgrad,

Very good. I hope very much that if I step over that line (I've done it elsewhere) that you will call me on it.

Yours,
Wince
1.4.2006 9:11am
Medis:
A.S.,

Right, military command refers to making "day-to-day" decisions during a war--directing military operations in light of particular circumstances as they arise. Military legislation, in contrast, involves establishing rules and regulations of general applicability--laws that will apply throughout the war. In other words, the decisions underlying military laws are not decisions about how to deal with the particular circumstances of a particular day, but rather are broader policy decisions about our conduct of war.

So, the relevant question is whether FISA is an attempt by Congress to issue a military command--eg, does FISA order the NSA to respond to some particular "day-to-day" circumstance in some particular way? And obviously the answer is "no"--FISA is a law of general applicability, not an order to the NSA to do something in particular. Hence, FISA is not an example of Congress trying to take over military command, but rather is an example of Congress providing military law.

Conversely, we could examine the President's Executive Orders to see if they look like legislation rather than "day-to-day" directives--although strictly speaking it doesn't matter, since the President it not authorized issue unlawful orders. Of course, we haven't seen those Executive Orders, but Black's opinion in Youngstown provides some helpful guidance on that issue:

"The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution."

So, Youngstown lays out the constitutional balance of powers in war: Congress has the power to set general policies and provide general rules for the manner in which those policies must be executed. And the President has the power to direct military operations by making specific day-to-day decisions.

But the precise problem is that some argue that when it comes to war, the President also has the power to bypass the general policies and general rules provided by Congress if he deems it prudent to do so. That proprosition represents a departure from the balance of power articulated in both the Constitution and by the Supreme Court in cases like Youngstown and Hamdi. And it is precisely that attempt to concentrate not just the power to direct military operations, but also the power to set military law, into the hands of a single person that concerns people.
1.4.2006 11:11am
Wince and Nod (mail) (www):
Medis,

The argument I have heard which persuades me is that if Congress lays too heavy an oversight burden on the President, the Pentagon, the NSA, the CIA, etc., so that they are sufficiently hindered from performing their day-to-day operations, then Congress has exceeded its power under the Constitution. It was from another thread here, and I think involved case law.

Wish I had the info handy.

It's like Congress not being able to use tax law to shut down newspapers.

Yours,
Wince
1.4.2006 1:21pm
byomtov (mail):
But the precise problem is that some argue that when it comes to war, the President also has the power to bypass the general policies and general rules provided by Congress if he deems it prudent to do so. That proprosition represents a departure from the balance of power articulated in both the Constitution and by the Supreme Court in cases like Youngstown and Hamdi. And it is precisely that attempt to concentrate not just the power to direct military operations, but also the power to set military law, into the hands of a single person that concerns people.

This captures my views very well. It seems to me that the President's power as C-in-C is the power to control the military within the scope of the laws governing the military. It is not the power to ignore these laws when he deems them inconvenient. Once you grant that power to ignore laws you are well on the road to tyranny.
1.4.2006 2:47pm
Medis:
Wince,

I think that argument needs to be more specific about what it means to "burden" or "hinder" day-to-day operations. For example, I could see that principle applying to a law which authorized the Chairmen of the Joint Chiefs of Staff to issue orders unless countermanded by the President, with such orders having to be issued on carved stone tablets with each letter measuring at least 12 feet high. That law effectively replaces the President as Commander in Chief because it makes the manner in which he could issue orders practically impossible.

On the other hand, it cannot be a "hinderance" in the relevant sense if a law simply prevents the President from issuing an order he thinks would be a good idea. That is what laws do--they limit choices--and the mere fact that the President believes a law is preventing him from making the best possible choice cannot be a reason for invalidating it.

And to add a final complication--there is always a tradeoff between the costs of procedure and the benefits of procedure. Accordingly, as Justice Black explains, the manner in which a general policy is to be executed is itself a general policy question, and so ordinarily that will be a matter for Congress as well.

So, I think it is also clear that it cannot be a "hinderance" in the relevant sense simply because the President believes that the costs of some procedure established by law outweigh the benefits of that procedure. Rather, those procedures would have to rise to the "stone tablet" level, meaning that they would have to be transparent attempts at making the procedural costs so high that they actually prevent the President from being able to direct lawful operations, rather than plausible attempts at balancing the costs and benefits of procedure.

And I don't think FISA is plausibly a "stone tablet" law. It is clearly designed to allow the President to direct electronic surveillance as covered by FISA, and has simply taken a policy stand on the right balance of procedures in such cases.
1.4.2006 3:22pm
Medis:
Wince,

To clarify my hypo, only the President's order would have to be on stone tablets.
1.4.2006 3:23pm