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The McCain Campaign and Article II:
Today's New York Times has a story by Charlie Savage suggesting that John McCain has changed his views on the scope of Article II power. It seems like a big story, but when you get into the details, the evidence for a change seems to be surprisingly thin.

  The evidence for the changed position is an e-mail sent to NRO's The Corner by an advisor to the McCain campaign about Senator McCain's position on telecom immunity and FISA legislation. The e-mail is mostly about pending legislation, but it also has two sentences that touch on the Constitution. Here are the two sentences: (1) "[N]ither the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001." (2) "John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution." The alleged inconsistency is with a statement by McCain in 2007: McCain was asked if he thought the government had Article II to power to trump FISA, and he said no.

  On Wednesday, an Obama campaign spokesman picked up on the e-mails and argued that McCain changed his earlier position. The McCain campaign then denied that McCain's position has changed.

  In the New York Times article, Savage suggests that the Obama campaign is correct that the two sentences from the e-mail really do show a change. But I don't see it. There is a basic difference between saying that monitoring is illegal and that it is unconstitutional: the Constitution is one source of law, but not the only law. Thus, in the case of the NSA surveillance program, my position was that it was illegal but constitutional. Maybe I'm missing something, but it seems like the most natural reading of these two remarks in the e-mail that this is Senator McCain's position, as well. Further, given that the McCain campaign itself denies that the e-mail was designed to suggest a change in direction, isn't it sort of weird to say that it did?

  Savage identifies three people who agree with Savage that the e-mail comments are inconsistent with Senator McCain's earlier position. First, NYU lawprof David Golove is relied on for the position that "while the language used by Mr. McCain in his answers six months ago was imprecise, the recent statement by Mr. Holtz-Eakin 'seems to contradict precisely what he said earlier.'" Unfortunately, the article does not say why that seems to be the case. Second, the article quotes Bush Administration critic and blogger Glenn Greenwald, who has stated that he sees the e-mail has a "complete reversal . . . to shore up the support of right-wing extremists." Third, NRO blogger Andrew McCarthy, one of the few people left who endorses the strong Article II vision, is quoted as saying that the e-mail "implicitly shows Senator McCain's thinking has changed as time has gone on and he has educated himself on this issue." I understand that these three people are reading the e-mails that way, but I don't understand why.

  Charlie Savage won a Pulitzer Prize for the Boston Globe for his articles criticizing the Bush Administration's Article II theories, so I understand that he would want to return to the theme now that he's at the New York Times. (BTW, congrats on the move, Charlie!) And maybe I'm quirky in not seeing the e-mails as inconsistent. But it seems like a strange story to me given how sparse the evidence is of a change.
statfan (mail):
It would be odd for McCain to believe that the surveillance was illegal, but that the telecoms need not apologize for illegal activity.

So, everyone is assuming that McCain now believes that the surveillance was legal, and the only available theory for why it was legal is Article II powers.

The other possible explanation is that McCain believes that the president should from time to time break the law, and not be ashamed of doing so. If that's his position, then I cannot understand how any law professor could endorse him.
6.6.2008 3:52pm
cboldt (mail):
The "flip flop" angle is trumped up by people who don't bother to fact check.
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See roughly contemporaneous articles by Ryan Singel at Wired.
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McCain Campaign: Telecom Amnesty Requires Hearings - May 21, 2008
Fish was careful to say, however, that he was answering a double-hypothetical question — if McCain wins, and if the issue is still alive in 2009.

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McCain: Stop! I'm for Amnesty for Lawbreaking Telecoms - May 23, 2008
If by 2009, Congress hasn't broken the current deadlock over whether to free the telecoms from the civil suits against them, McCain would want hearings, clear future rules and apologies from the telecoms before supporting amnesty

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My opinion is that it's a disingenuous leap to tag McCain for flip flopping when somebody standing in for him renders a guess relating to a hypothetical. It's taking an answer to "If he doesn't or can't get what he demands, then what?" as representing a change in the demand.
6.6.2008 4:00pm
rpbates:
Orin, forgive me if I'm being dense, but I just don't see the glaring, uh, lack of inconsistency you do.

McCain's prior position, in essence, was that the President could not constitutionally contravene FISA while relying solely on Article II for authority to do so.

He's now saying the TSP was both constitutional and "appropriate," which I take to mean "not illegal."

Assuming no other constitutional theory to authorize the TSP exists, as statfan suggests, and that FISA applies to the communications captured by TSP, which I don't think is really disputed, how is McCain not contradicting his earlier position, at least as to the scope of Article II (and at least as far as the email accurately reflects his views)?
6.6.2008 4:01pm
darelf:
I read it as saying that there are sometimes exigent circumstances. And that he believes ( according to his words ) that the telecom's actions were what " most people ... understand were Constitutional and appropriate" (emphasis added)

maybe I'm wrong?
6.6.2008 4:04pm
OrinKerr:
Statfan,

On your first point, I think you're missing the fact that the liability of the telecom companies and the Administration are two different questions, as I have blogged at length.

As for your later point, that is more difficult; it depends on what it means to say that "no apologies need to be made." Does that mean that it was good to break the law? Or does that mean that in context it was understandable to do so? Or just that it's not something that should lead to civil liability for the companies as a form of punishment? It's somewhat hard to tell based on the context. If the correct reading is the first reading, then I agree with you that I would sharply disagree. But it's hard to tell, I think.
6.6.2008 4:06pm
darelf:
I guess I should have added, I don't think "most people" in an emergency situation worry about the law as much as they are concerned about what the right thing ( read, "appropriate" ) is to do. So "appropriate" may have absolutely no bearing on whether your actions are legal or illegal. We have to assume that doing the Right Thing(tm) will be justified by the legal system after the fact.
6.6.2008 4:08pm
cboldt (mail):
-- The alleged inconsistency is with a statement by McCain in 2007: McCain was asked if he thought the government had Article II to power to trump FISA, and he said no. --
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This is a distinct instance of "potential flip-flop" from the one described in my previous. I haven't looked for the exact context and language of his 2007 statement.
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But, if it's "as summarized," it reads as though he thought the scope of authority granted to the executive under FISA tracks the scope of authority under Article II, and being in violation of FISA would result in being in violation of Article II. Or, in the alternative, that he thought in a battle between FISA and Article II, FISA wins.
6.6.2008 4:11pm
OrinKerr:
rpbates,

I think it depends on what the e-mailer meant when he said the acts were "appropriate." Does that mean good as a matter of policy? Does that mean legal? Does that mean legal under a particular theory? Does that mean every act? Most acts?

I don't mean to be cute here. But if you're going to run a front page story in the New York Times on this, it seems to me that you should have some evidence beyond a possible theory about the meaning of a word in an e-mail from an economist to K-Lo for posting on The Corner. I gather you disagree, but I would think the Times has higher standards.
6.6.2008 4:14pm
cboldt (mail):
Just to reiterate, there is more than one alleged "flip flop," and it'll better the dialog if the distinction is recognized up front.
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The late-May, early June exchange that involves Mr. Fish has to do with a legislative "one-time" waiving of the civil remedy in 50 USC 1810 ... i.e., "immunity" or "amnesty" or whatever. The flip flop being "first McCain was for immunity, then he wanted a "justification" before granting it, and now when called on it, he's back to granting immunity."
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Then there is the question as to whether FISA or Article II is the ultimate controlling authority, and the timing of that flip-flop is between sometime in 2007 and the present.
6.6.2008 4:20pm
statfan (mail):
On your first point, I think you're missing the fact that the liability of the telecom companies and the Administration are two different questions, as I have blogged at length.

It's true that I had forgotten those posts, but I don't think it matters. McCain either thinks that whichever of the telecom companies and the administration broke the law ought to (at the very least) apologize, or he thinks that nobody broke the law, or he thinks that someone ought to be able to get away with breaking the law.

Or does that mean that in context it was understandable to do so? Or just that it's not something that should lead to civil liability for the companies as a form of punishment?

As for your later point, that is more difficult; it depends on what it means to say that "no apologies need to be made."

I don't think any of your readings comport with the "constitutional and appropriate" bit later in the sentence.
The only way it can be "constitutional and appropriate" for the president to break the law would be a broad reading of Article II; the constitution doesn't say that laws may be broken when it is "understandable" to do so, nor that such lawbreaking ought to go unpunished.
6.6.2008 4:25pm
rpbates:
Orin,

I guess I'm not convinced that the inconsistency I see in McCain's alleged view on the scope of Article II powers depends on the definition of "appropriate." I think it's a natural reading of that word in context that the adviser meant "not illegal," but you raise other good possibilities too. The larger point in my view is the assertion that soliciting telecoms to violate FISA by cooperating in the TSP is within presidential authority under Article II, which I think is pretty clearly contrary to McCain's earlier view on the constitutional issue. I'm afraid I'm still missing your point.

I know nothing about journalistic standards, and I agree the piece read as being thinly sourced. But I don't know that I think the Corner, as part of NRO, should be held to a lesser standard than the NYT, and I doubt anyone would be harping on them if they ran a story on McCain's position on the TSP based on this email. That, after all, appears to have been the point of sending it.
6.6.2008 4:26pm
darelf:
This brought up remembrances, and I found a bare assertion that four appellate courts have ruled that Article II trumps FISA... however, without any references. Is there a link or some pointers to these cases?
6.6.2008 4:28pm
Crunchy Frog:
statfan:

The other possible explanation is that McCain believes that the president should from time to time break the law, and not be ashamed of doing so. If that's his position, then I cannot understand how any law professor could endorse him.

This would be entirely consistent with his views on torture (the real kind, not just waterboarding) - it should be illegal, but in the ticking bomb scenario, exigent circumstances prevail. Jack Bauer does what he has to do, and damn the consequences.

Re telecom immunity - in the case where legality is unsure, the fact that they were doing the bidding of the government should weigh heavily in their favor. It's not as if they just decided on their own to start monitoring traffic.

OK:

...I would think the Times has higher standards.

I was disabused of that notion a long time ago.
6.6.2008 4:30pm
cboldt (mail):
-- four appellate courts have ruled that Article II trumps FISA. --
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Off the top of my head, In Re Sealed Case by FISCR (2002); Clinton doing a physical search of Aldrich Ames (not litigated).
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There are pre-FISA cases that touch on the power of Congress to step on Article II surveillance powers. The "Keith" case and Truong come to mind.
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And there is of course the seminal case, Marbury v. Madison, which stands for the general proposition that when source of law "constitution" is in conflict with source of law "statute," constitution wins.
6.6.2008 4:34pm
cboldt (mail):
If Greenwald's article is accurate, here is McCain's response in 2007:
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[Q to McCain] whether he thought there was "any executive power the Bush administration has claimed or exercised that . . . is unconstitutional ...
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There are some areas where the statutes don't apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is.

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I don't what he has in mind when he says "overseas communications," but in that regime, he says in his mind, the statutes DON'T control.
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Good luck pinning McCain (or any other pol) to a position. I don't see a flip flop here, however.
6.6.2008 4:47pm
PLR:
Which burns more calories? A flip-flop, or a lengthy analysis explaining why it is theoretically possible that no flip-flop has occurred if you parse the words in a manner ideally suited for analyzing the words of dissemblers?
6.6.2008 4:49pm
cboldt (mail):
-- Which burns more calories? A flip-flop, or a lengthy analysis ... --
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It depends.
6.6.2008 4:54pm
Ryan Waxx (mail):
Further, given that the McCain campaign itself denies that the e-mail was designed to suggest a change in direction, isn't it sort of weird to say that it did?


Not if you realize that it is in the Obama campaign's interests to misrepresent McCain's remarks to the maximum extent possible with a complicit media. Or have you forgotten how much mileage he's gotten with "hundred year war" with none of the reporters swooning at his feet daring to say "boo"?
6.6.2008 5:02pm
gab:
How about we just forget the whole amnesty thing, take it to court and determine, once and for all, if what they did was legal or not? And not worry about what McCain, Bush or Obama think...
6.6.2008 5:09pm
Soronel Haetir (mail):
I thought the whole problem with the Art 2 argument is that there is no clear definition of what powers the president actually has in most arenas. A statute may say something to the effect of "nothing in this section shall alter the powers of the President with regard to national security." but such a statement has no bearing on the actual question of what those powers are.
6.6.2008 5:23pm
frankcross (mail):
Well, I didn't think the thrust of the article involved Fish at all. The thrust of the article was that McCain said he would obey FISA. The campaign now is suggesting that it supported Bush's actions. But those actions were predicated on the Administration not being obligated to obey FISA and I believe, Orin, you suggested that the actions probably violated FISA. It is difficult to pin a politician down on a clear contradiction without the ability to question specifically but this seems to at least be a shift in emphasis.
6.6.2008 5:37pm
cboldt (mail):
Here's the Q&A. He demonstrated as much of a "flip-flop" in whatever course of time it took to obfuscate his answer, as he demonstrated between December 2007 and today.
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John McCain Q&A
By Charlie Savage - December 20, 2007


Q. Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?

A. There are some areas where the statutes don't apply, such as in the surveillance of overseas communications.

Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is.

Q. Okay, so is that a no, in other words, federal statute trumps inherent power in that case, warrantless surveillance?

A. I don't think the president has the right to disobey any law.
6.6.2008 5:41pm
SteveW:
Assuming that all of the statements in the e-mail actually reflect McCain's views, then the only way I can see to reconcile the e-mail with the 2007 statement is that McCain believes that the eavesdropping did not violate statutory law. If McCain believes, as some people still seem to, that the President and the phone companies complied with FISA (or were exempt from FISA pursuant to the language of FISA), then the recent e-mail is not inconsistent with the 2007 statement. Could that possibly be McCain's position?
6.6.2008 5:45pm
cboldt (mail):
-- Well, I didn't think the thrust of the article involved Fish at all. --
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Doug Holtz-Eakin's letter to NRO corner was a direct response to a charge based on Fish's comments.
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KLO and Doug Holtz-Eakin - 05/29 02:33 PM
McCarthy - 05/29 04:32 PM
KLO and Doug Holtz-Eakin - 06/02 01:03 PM
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I don't disagree that the article HERE may intend to look at an different disagreement, or a different alleged flip flop. There seems to be a substantial amount of conflated argumentation in the source documents used to build the article we're commenting on.
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The media (WaPo, NYT) are so sloppy, incorrect, etc. that it's a wonder anybody figures out what's really going on.
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Adding more fuel to the fire, see McCarthy's claim, which would be a 2005-2008 flip-flop.

As I've previously detailed (with citations drawn from the public record), Sen. McCain's initial position — when the New York Times exposed the top-secret NSA program in 2005 — was that the Bush administration had acted illegally in ordering warrantless wiretapping (with notice to leaders of Congress) in order to protect the United States from additional 9/11-style attacks. Is that one of the positions that Sen. McCain has never changed?
6.6.2008 5:54pm
Howard Gilbert (mail):
The administration has never asserted that the TSP involved activity covered by FISA. In fact, in the Sixth Circuit appeal, the government pointed out that it had made no such admission, to the surprise of the judges on the panel but not to anyone who has read the government position papers on this subject.

For whatever reason, the scope of activity covered by FISA is controlled by the definition of "electronic surveillance" in the statue. Originally this covered four specific cases, and the NYT based its claim of a FISA violation on the original definition that electronic surveillance included monitoring international phone calls if the point of intercept was inside the US. However, in the "Protect America Act" of 2007, Congress amended this with the following language:
<blockquote>
Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.
</blockquote>
This had the effect of retroactively legalizing any activity in the TSP involving interception of international communication at a point in the US of communication traffic where the target is reasonably believed to be outside the US. This eliminated the most probable theory that some part of the TSP fell under FISA and was therefore illegal.

McCain's statements have several plausible interpretations. Orin asserts that the TSP was illegal (violated FISA), but not unconstitutional. A second alternative is that the TSP never involved activity that fell within even the original definition of electronic surveillance in FISA (that intercepts were actually made outside the US). A third position would hold that the TSP may have originally been illegal and within the scope of the FISA definition (intercepts made in the US), but that it became legal after Congress "clarified" the definition last year (because the target had been outside the US).

This is not about whether the US activity was legal, but rather whether the statements in the McCain email are inconsistent. Given the wide range of uncertainty about the legal status of the TSP (which given the Sixth Circuit reversal has not been found to be illegal by any court), there is no way you can read into the words quoted here any change of position.
6.6.2008 7:05pm
nonesuch:
Off the top of my head, In Re Sealed Case by FISCR (2002)

cboldt, it seems the top of your heads needs a refresher on the distinction between what a court "rule[s]" and mere dicta. The operative statement in the FISCR opinion is the latter, not the former.
6.6.2008 7:30pm
Andrew J. Lazarus (mail):
So many conservatives will be shocked! shocked! to learn next year that Bush and the telecoms sucked up any phone conversation anywhere with any persons that they pleased, Stasi-style. If the program were remotely legal, why would the telecoms be desperate for amnesty?
6.6.2008 7:35pm
Thorley Winston (mail) (www):
I think that Howard Gilbert provided the most likely interpretation -- McCain believes that the President's Article II power doesn't enable him to break the law and he also believes that the surveillance conducted under the TSP didn't violate FISA (either originally or as amended).
6.6.2008 8:56pm
frankcross (mail):
That would be an out but hard to square with the McCarthy NRO article provided by cboldt
6.6.2008 11:12pm
Just an Observer:
Orin:

You write above ...


Thus, in the case of the NSA surveillance program, my position was that it was illegal but constitutional.


I understand that you believe that the program was not "unconstitutional" with respect to the Fourth Amendment. But where did you ever take the position that it was "constitutional" for a president to do something "that was illegal" in the sense that it was expressly prohibited by statute?

That goes to the heart of the Article II argument on executive power. Is that what you really believe? That was never my impression, and I think I read every blog post you wrote on the subject.
6.6.2008 11:44pm
Mike G in Corvallis (mail):
But where did you ever take the position that it was "constitutional" for a president to do something "that was illegal" in the sense that it was expressly prohibited by statute?

I don't know whether Orin ever took that position, but I seem to recall Vice-President Gore defending his own activities, in spite of the fact that they were expressly prohibited by statute, on the grounds that there was "no controlling legal authority."
6.7.2008 12:40am
OrinKerr:
I understand that you believe that the program was not "unconstitutional" with respect to the Fourth Amendment. But where did you ever take the position that it was "constitutional" for a president to do something "that was illegal" in the sense that it was expressly prohibited by statute?

That goes to the heart of the Article II argument on executive power. Is that what you really believe? That was never my impression, and I think I read every blog post you wrote on the subject.


That's not just my view, it's what the United States Supreme Court has said:
Seizing upon our statement in Franklin that presidential decisions are reviewable for constitutionality, the Court of Appeals asserted that "there is a constitutional aspect to the exercise of judicial review in this case--an aspect grounded in the separation of powers doctrine." Specter II, 995 F. 2d, at 408. It reasoned, relying primarily on Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579 (1952), that whenever the President acts in excess of his statutory authority, he also violates the constitutional separation of powers doctrine. Thus, judicial review must be available to determine whether the President has statutory authority "for whatever action" he takes. 995 F. 2d, at 409. In terms of this case, the Court of Appeals concluded that the President's statutory authority to close and realign bases would be lacking if the Secretary and Commission violated the procedural requirements of the Act in formulating their recommendations. Ibid.

Accepting for purposes of decision here the propriety of examining the President's actions, we nonetheless believe that the Court of Appeals' analysis is flawed. Our cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution. On the contrary, we have often distinguished between claims of constitutional violations and claims that an official has acted in excessof his statutory authority. See, e. g., Wheeldin v. Wheeler, 373 U.S. 647, 650-652 (1963) (distinguishing between "rights which may arise under the Fourth Amendment" and "a cause of action for abuse of the [statutory] subpoena power by a federal officer"); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396-397 (1971) (distinguishing between "actions contrary to [a] constitutional prohibition," and those "merely said to be in excess of the authority delegated . . . by the Congress").

In Larson v. Domestic &Foreign Commerce Corp., 337 U.S. 682, 691, n. 11 (1949), for example, we held that sovereign immunity would not shield an executive officer from suit if the officer acted either "unconstitutionally or beyond his statutory powers." (Emphasis added). If all executive actions in excess of statutory authority were ipso facto unconstitutional, as the Court of Appeals seemed to believe, there would have been little need in Larson for our specifying unconstitutional and ultra vires conduct as separate categories. See also Dugan v. Rank, 372 U.S. 609, 621-622 (1963); Harmon v. Brucker, 355 U.S. 579, 581 (1958) ("In keeping with our duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case, we look first to petitioners' non constitutional claim that respondent [Secretary of the Army] acted in excess of powers granted him by Congress" (emphasis added)).

Our decision in Youngstown, supra, does not suggest a different conclusion. In Youngstown, the Government disclaimed any statutory authority for the President's seizure of steel mills. See 343 U. S., at 585 ("[W]e do not understand the Government to rely on statutory authorization for this seizure"). The only basis of authority asserted was the President's inherent constitutional power as the Executive and the Commander in Chief of the Armed Forces. Id., at 587. Because no statutory authority was claimed, the case necessarilyturned on whether the Constitution authorized the President's actions. Youngstown thus involved the conceded absence of any statutory authority, not a claim that the President acted in excess of such authority. The case cannot be read for the proposition that an action taken by the President in excess of his statutory authority necessarily violates the Constitution. [n.5]

The decisions cited above establish that claims simply alleging that the President has exceeded his statutory authority are not "constitutional" claims, subject to judicial review under the exception recognized in Franklin. [n.6] As this case demonstrates, if every claim alleging that the President exceeded his statutory authority were considered a constitutional claim, the exception identifiedin Franklin would be broadened beyond recognition. The distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other, is too well established to permit this sort of evisceration.
Dalton v. Specter, 511 U.S. 462 (1994).
6.7.2008 1:50am
Eli Rabett (www):
Once again we debate the meaning of is. That is why we first kill all the lawyers.
6.7.2008 8:18am
Just an Observer:
Orin,

I don't see that the Dalton v. Specter says it is constitutional for a president to violate a statute. Rather, it simply affirms that there are inherent executive powers that do not have to be derived from statutory authority.

No one seriously disputes (assuming no Fourth Amendment problems) that presidents have inherent power to wiretap in the foreign-intelligence field absent statutory authorization and absent statutory restrictions. But in the case of FISA, Congress enacted a statutory requirement that the President violated -- in your own analysis, the NSA program was thus "illegal."

But do you believe that, assuming the statute was violated, it was "constitutional" for the President to do so? The Take Care clause would seem to impose an affirmative constitutional duty on the President to obey the statute.

And, since we agree that FISA was violated, that would place this under Youngstown Category 3. In that situation, according to Justice Jackson's formula:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.
6.7.2008 10:00am
OrinKerr:
JaO,

I think Dalton v. Specter is pretty clear, and it doesn't say what you are saying it says. It has nothing to do with "inherent executive powers", and everything to do with the fact that there is a difference between the executive branch violating a statute and violating the constitution. Dalton v. Specter says that if the executive violates a statute, you can't try to turn that into a constitutional violation based a theory that there is a constitutional obligation of the executive to follow statutes. The two are different: "The distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other, is too well established to permit this sort of evisceration."
6.7.2008 10:22am
Apodaca:
Orin writes:
That's not just my view, it's what the United States Supreme Court has said
Dalton v. Specter does indeed etablish that not "every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution."

One might well wonder, however, whether Dalton, which involved procedural requirements (and alleged noncompliance therewith) for military base closures, has any bearing on the "constitutionality" of the NSA surveillance program. Unless I'm terribly mistaken, the base realignment and closure act had no criminal penalties for violations of its administrative procedures. FISA does, and did at the time.

So instead of asking the broader question posed by JaO, I think we should be asking whether it is "constitutional" for the President to act -- knowingly, no less -- in violation of a criminal prohibition (a felony in this case) set forth explicitly in federal statutory law. In contradistinction to Dalton, that scenario seems to me to raise grave separation-of-powers issues.
6.7.2008 10:29am
cboldt (mail):
"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.


Depending on how the FISA v Article II argument is framed, that prong of Jackson's analysis could be either irrelevant, or merely tautological, depending on which label one prefers.
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The short version is that there is an area of executive power, upon which Congress can't encroach -- i.e., Congress does NOT have power to act on the subject.
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SCOTUS has framed the analysis of Article II power around the term of art, "foreign intelligence information," and has generally stated that THIS area is outside of the Court's sphere of competency, and as noted below, Congress appears to also grant some surveillance power exclusively to the executive.
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Just as an aside, I tend to focus on the term "foreign intelligence," and notice that most article II power "proponents" invoke "national security" instead. But the "Keith" case illuminates a Court-imposed limit on warrantless surveillance for the generic purpose of national security.
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What we don't have is a fact pattern (because the President refuses to disclose the scope of authorized surveillance) to bounce against "the constitutional power of the President ... to obtain foreign intelligence information deemed essential to the security of the United States" [ From 18 U.S.C. 2511 (3) as excerpted in "Keith" 407 U.S. 297 (1972) ]
6.7.2008 10:29am
OrinKerr:
Apodaca,

I don't think it raises profound SOP issues because the issue in this discussion is what reflects common usage of language within the legal system. That is, we're trying to understand the ordinary usage of terms, to determine whether the statements are inconsistent, not try to resolve whether as a theoretical matter violation of a statute is in some sense "constitutional" or "unconstitutional." The latter is irrelevant, I think, because the President should be guided by the law, not just the Constitution.
6.7.2008 10:39am
Apodaca:
Orin, if that's the case, can I inquire what you meant above by "in the case of the NSA surveillance program, my position was that it was illegal but constitutional." Were your last two words "irrelevant"?
6.7.2008 10:43am
cboldt (mail):
-- [McCain's denial of flip-flopping is] hard to square with the McCarthy NRO article [asserting McCain's position in 2005-2006] provided by cboldt --
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I checked the source statements that McCarthy cites, and bases his assertion on, and I don't see much of a McCain flip-flop there, either.
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Here's McCarthy's assertion (again):

Sen. McCain's initial position — when the New York Times exposed the top-secret NSA program in 2005 — was that the Bush administration had acted illegally in ordering warrantless wiretapping (with notice to leaders of Congress) in order to protect the United States from additional 9/11-style attacks.


Here are the McCain statements cited by McCarthy:

[Dec 2005] Sen. John McCain, R-Ariz., said he wanted to know exactly what is going on before deciding whether an investigation is called for. "Theoretically, I obviously wouldn't like it," he said of the program.
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[Jan 22, 2006]WALLACE: ... Now, you have expressed some concerns about the NSA program. Does this change your mind?
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MCCAIN: No. But my concerns are that we should have -- the president should come to Congress with a proposal as to how we can best meet these new challenges. Look, everybody's got a BlackBerry now, the e-mails, all of the new technologies for communications, as opposed to, say, 10 or 15 years ago where we all just had a hard line.
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There are new challenges in the use of telecommunications that, in my view, indicate that we probably need some enhanced powers. But why not just come to Congress? Now Senator Specter is going to have some hearings on it -- come to Congress, tell us what we need, what the president needs, and I am confident that he would get that authority.
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WALLACE: But you do not believe that currently he has the legal authority to engage in these warrant-less wiretaps.
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MCCAIN: You know, I don't think so, but why not come to Congress? We can sort this all out. I don't think -- I know of no member of Congress, frankly, who, if the administration came and said here's why we need this capability, that they wouldn't get it. And so let's have the hearings.
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Let's have the administration come to Congress. I think they will get that authority, whatever is reasonable and needed, and increased abilities to monitor communications are clearly in order.


McCain's comments in December 2005 amount to "if I knew what was going on, I could form an opinion," and his FoxNews interview in 2006 can be "explained away" by distinguishing between "legal" and "constitutional."
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Where he is advocating "enhanced powers," he could very well be opining on the subject of warrantless surveillance OTHER THAN foreign intelligence, but still in the realm of national security.
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I think he and the public have a legitimate and serious complaint against the administration's failure to approach Congress, and I think the president is conducting unconstitutional surveillance - but I don't have any direct evidence to prove my belief. The circumstantial evidence is, in my mind, overwhelming. The government is hiding it's surveillance POLICY as deployed against people situated on US soil.
6.7.2008 10:50am
SirBillsalot (mail):
Legislators who become presidents usually discover greater inherent executive powers. It's a function of "where you sit is where you stand."
6.7.2008 10:58am
cboldt (mail):
-- That is, we're trying to understand the ordinary usage of terms, to determine whether the statements are inconsistent --
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I would submit that the "ordinary usage" is ambiguous. The administration has fairly consistently asserted that the TSP is and was LEGAL. The same term comes up as it defends its demand for waiving off the statutory right of action in 50 USC 1810; that the actions of the telecoms were LEGAL.
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I think the word LEGAL, in that context, conveys "within constitutional limits" rather than "in accord with the FISA statute."
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At any rate, the ambiguity in usage can be spun either way, as resulting in an inconsistency, or as a showing of consistency over time.
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The media writers want to find inconsistency, and that's what they find. If they ever find the right questions, the politicians will answer different questions that appear to be responsive, but in fact aren't.
6.7.2008 11:00am
cboldt (mail):
Couple of additions ... the administration has also used the word LEGAL as shorthand for "within FISA as augmented by the AUMF" or, in the alternative "authorized by Congress when it passed the AUMF."
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I find those positions to be weak (actually, I find them laughably absurd), but the administration has relied on those arguments for an ultimate conclusion of LEGAL.
6.7.2008 11:05am
MarkField (mail):
Last December, McCain told The Boston Globe this:

"A. There are some areas where the statutes don't apply, such as in the surveillance of overseas communications.

Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is.

Q. Okay, so is that a no, in other words, federal statute trumps inherent power in that case, warrantless surveillance?

A. I don't think the president has the right to disobey any law."

I find myself unable to reconcile this language with his recent statement that "John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution." The reference to Art. II has no meaning other than a suggestion that the President has power to act outside the law, which is precisely what McCain rejected last December.

I also find it impossible to reconcile McCain's statement last December with Prof. Kerr's reading of Dalton.

At the very least, I think we can say that McCain's various statements on this issue are not the sign of a straight talker, but of either a confused thinker or of someone trying to say contradictory things to different audiences.
6.7.2008 11:31am
cboldt (mail):
McCain in Dec. 2007: There are some areas where the statutes don't apply, such as in the surveillance of overseas communications
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McCain in 2008: ... as authorized by Article II of the Constitution.
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MarkField: I find myself unable to reconcile this language
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-- At the very least, I think we can say that McCain's various statements on this issue are not the sign of a straight talker, but of either a confused thinker or of someone trying to say contradictory things to different audiences. --
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He's doing the usual thing of taking advantage of ambiguity.
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On this subject, those who see "clear contradiction" have to cherry-pick comments and otherwise strain the ambiguous record. And strain they will.
6.7.2008 11:48am
cboldt (mail):
-- Congress appears to also grant some surveillance power exclusively to the executive. --
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I need to fix that up. It isn't that Congress "grants" an Article II power. In this case, what I meant to convey is better summarized as "Congress [as does the Court] also appears to recognize that the constitution grants some surveillance power exclusively to the executive."
6.7.2008 11:54am
jond:
Orin, this sounds like a fair post to me. Criticism of the wiretaps has at times lacked a certain subtly. The case for whether Bush acted unconstitutionally is weak, while the evidence that he acted in violation of statute is strong. But details may not make for good rhetoric. It's easier to whip people into a frenzy by alleging, inter alia, a brash violation of the fourth amendment.

That the NYT found so many learned commentators able to ignore this obvious understanding and alignment of McCain's statements demonstrates a disappointing degree of partisanship.
6.7.2008 12:00pm
Naked Lunch Pale:
Can anyone state with any confidence what McCain's position has been at anytime regarding FISA and the TSP?
6.7.2008 12:08pm
cboldt (mail):
-- Can anyone state with any confidence what McCain's position has been at anytime regarding FISA and the TSP? --
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Not in a way that admits legal analysis. "Whatever it takes to keep the country safe" and "Follow the law" is about it.
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He generally says the law should reflect and effect policy too, but he got rolled by the administration on his "anti torture" maverick stance (during legislation of the administration's DTA and MCA), all the while claiming the law he eventually supported represents a "real" barrier to the conduct he abhors. To wit, cruel and inhuman is illegal (contra-statute), but in some contexts, has no (statutory) penalty.
6.7.2008 12:16pm
Trevor Morrison (mail):
Orin, have you read Larry Alexander's (not recent) piece critiquing Dalton v. Spencer's reasoning? Any thoughts on it?
6.7.2008 12:33pm
Tom Cross (www):
If we accept that McCain thinks the TSP was Constitutional but illegal then we must read this statement by McCain's representative as saying that an illegal action was "appropriate."

McCain is quoted in the NYT as saying "I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is."

If Presidents have such an obligation than it seems rather obvious that operating counter to that obligation would be "inappropriate." While Mr. Kerr might have a point that this advisor's statement does not necessarily reflect a change in McCain's view of the legality of the TSP, and the NYT seems to have overstepped there, it also seems clear that it does reflect a change in what sort of behavior McCain thinks is "appropriate" for a President.

I would also add that the American people, I think, care less about the technical difference between what is Constitutional and what is Legal than they do about the overall issue of right and wrong -- what authority the President has and what authority he does not have -- regardless of the technical specifics of where that authority comes from.
6.7.2008 12:55pm
byomtov (mail):
Isn't there a difference between the President acting "without statutory authority," or "exceeding statutaory authority," on the one hand, and explicitly violating a statute on the other?

As best I can work through this, the inconsistency seems to be the move from defending the former but not the latter, to defending it all.
6.7.2008 1:42pm
cboldt (mail):
Isn't there a difference between the President acting "without statutory authority," or "exceeding statutaory authority," on the one hand, and explicitly violating a statute on the other?
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There are a number of permutations. Another one was invoked by the administration when it claimed FISA prevented the surveillance of (some) communications that was "between foreigners."
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A permutation not much discussed is where Congress enacts a statute that runs counter to the limits embodied in the fourth amendment. "I followed the law" doesn't cure all constitutional violations, and sometimes being in violation of the law is the course that better upholds the constitution. See Marbury v. Madison.
6.7.2008 2:17pm
Howard Gilbert (mail):
FISA does not cover activities that fall outside its set of definitions. For example, it has never prevented the government from intercepting a call from Bin Laden to Zawahiri when both are outside the US. Where FISA requires a warrant, McCain clearly says that the president should not bypass a restriction written into law. However, if the president requires the assistance of a communications company to gather foreign intelligence in ways not covered by FISA, he does not do so under a grant of authority by FISA, nor does he do so under a warrant from a court. His authority comes from his Article II power to defend the US. Thus "asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution"(in activities not covered by FISA) is not incompatible with following the laws passed by Congress.
6.7.2008 2:34pm
Laura S.:
Tom Cross,

It seems like you're trying read something that's not there. McCain appears to be saying that the President's policy was correct--but that's different from condoning the presidents failure to enable that policy with appropriate statutory changes.
6.7.2008 5:06pm
Tom Cross (www):
Laura S,

If I'm reading something that "isn't there" it must be that this whole debate is about the legality of the program (or its lack of "statutory enablement" or however you want to put it.) Its not about whether or not the President should be surveilling terrorists. Everyone thinks it appropriate for the President to be surveilling terrorists. I know sometimes conservative pundits insist that "the ACLU and trial lawyers" are opposed to the surveillance of terrorists, but thats not actually true. Its just something that some people tell themselves because its easier than addressing the substantive questions that are being raised in a more thoughtful way.
The debate is about the legality of the program and questions about its "appropriateness" ARE questions about its legality. McCain and his agents have made these statements in the context of a debate about the legality of the program. I have trouble with the idea that McCain thinks this administration broke the law and thinks that the President should not break the law, and thinks that this administration's actions were appropriate and they have nothing to apologize for. Clearly, if McCain thinks they shouldn't have broken the law, then McCain must also think it was inappropriate for them to break the law. Shouldn't they apologize for breaking the law? It seems the least that they could do...
6.7.2008 7:11pm
OrinKerr:
Orin, if that's the case, can I inquire what you meant above by "in the case of the NSA surveillance program, my position was that it was illegal but constitutional." Were your last two words "irrelevant"?

I mean that my position was that it was illegal but constitutional; that is, it violated a statute but not a provision of the constitution. To be clear, i didn't say the constitution was irrelevant; I said that it is not the only think that is relevenat.
6.7.2008 9:24pm
OrinKerr:
Trevor,

I haven't seen it; do you have a cite?
6.7.2008 9:26pm
Trevor Morrison (mail):
Is There Such a Thing as Extraconstitutionality? The Puzzling Case of Dalton v. Specter, 27 Arizona St. L.J. 845 (1995) (with Evan Lee).
6.8.2008 6:50am
Laura S.:
Tom,

The world is which McCain is debating is surely one where the question at hand is whether the program should exist at all. I think you're missing the power of the "warrantless wiretaps charge." Its the very idea that the NSA may listen to foreign nationals whose communications cross USA soil, filing court papers after the fact, than people (seemingly) object to, not that the warrantless part hasn't been incorporated into the statutory scheme.

I agree that the real problem isn't what Bush's NSA is monitoring foreign communication crossing USA territory without a warrant, its that he completely failed to acquire statutory changes to enable that policy. Unfortunately, this isn't the argument in play. That Bush acted illegally is just icing the cake.
6.8.2008 2:17pm
Tom Cross (www):
Laura S,

The central matter of contention in the debate about the recent statutory authorization bill was about telco immunity for prior law breaking, rather than whether or not additional statutory authorization is needed going forward. There was some discussion (even on the VC) about what the wording meant... exactly what should and should not be authorized, but I don't think its fair to say that the core disagreement was about whether or not statutory authorization should be given. The different versions of the bill were very similar in fact.

The legality is the core issue, not the "icing on the cake."

Also, a nit about "filing court papers after the fact." AFAIK, FISA currently authorizes the NSA to "file papers" 72 hours after the fact. Thats not the issue, either.

Let me quote from the article this McCain advisor was responding to:


What does it mean when he says Sen. McCain does not want the telecoms put into this position again?

Is he saying that in a time of national crisis, the president should not be permitted to ask the telecoms for assistance that is arguably beyond what is prescribed in a statute...

Mr. Hotz-Eakin is adamant in relating that he told the Post, "John McCain's position has never changed on this issue. Period..."

Sen. McCain's initial position... was that the Bush administration had acted illegally in ordering warrantless wiretapping... Is that one of the positions that Sen. McCain has never changed?


THAT is the context. In response to this, McCain's advisor wrote that the Administration's actions were "Constitutional and appropriate," and that they had nothing to apologize for.
6.9.2008 8:56am
AF:
If I understand Orin's argument, it boils down to the assertion that calling the administration's actions "constitutional" and "appropriate" and requiring no apologies does not imply that they were legal.

That's an ingenious argument, but it's hardly a robust defense. In the political arena, candidates are routinely branded as flip-floppers for apparent contradictions that are far more easily explained.
6.9.2008 12:23pm
Tom Cross (www):
This keeps getting muddier. Another McCain spokes person apparently attempted to clear this up of Friday, clearly stating that McCain still thinks that the President shouldn't break the law, and then made another problematic comment about Article II. Then a few hours later McCain said in a press conference that its "ambiguous" whether the program was legal.

I guess thats our answer. He thinks its "ambiguous."

I see a politician trying to make everyone happy. This is the sort of answer that satisfies no one.
6.9.2008 3:01pm