The President’s Inherent Authority Argument
posted by Daniel Solove
There are some great posts over at Balkinization examining the President’s inherent authority to conduct warrantless surveillance.
Here are some key excerpts:
Marty Lederman, “Inherent Authority” to Violate Federal Law? (Dec. 22, 2005)
“I do not deny that the President has the power as Commander-in-Chief to engage in at least some forms of warrantless surveillance against the enemy in the absence of statutory prohibition. That would be a Youngstown “Category II” case. . . .
But the critical point for present purposes is that, as Prof. Griffin emphasizes, the Nation had exactly this debate in the mid-70s — after gross abuses in connection with such warrantless surveillance — and the legislature and Executive agreed to enact FISA, a statute regulating such warrantless surveillance. . . .
That puts us in Youngstown Category III, where the President’s constitutional authority to act — even if he had it in the first place — is at its ‘lowest ebb.’ . . .
The Administration’s defenders are citing a 2002 dictum by the FISA Court of Review: “We take for granted that the President does have that authority [to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power.” In re Sealed Case, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (emphasis added). That throwaway line — not germane to the holding in that case — was almost certainly written by Judge Laurence Silberman, who (I am told) testified in his personal capacity to the same effect in the mid-1970’s, when FISA was being considered. The dictum is, in my view, dead wrong. . . . If Silberman and the Bush Administration are correct, then there’s no need for FISA at all — nor for the FISA Court. The President may simply proceed with surveillance on his own iniitiative, if he thinks it will help in the war on terrorism.”
Jack Balkin, Youngstown and The President’s Power to Torture (July 16, 2004) (provides useful background about Youngstown Sheet and Tube Co. v. Sawyer (U.S. Supreme Court 1952), where President Truman ordered the seizure of steel mills in the name of national security during the Korean War)
“[T]he question before the Court was whether the President’s powers as Commander-in-Chief gave him authority in an emergency to seize private property. . . .
Justice Jackson’s opinion . . . offered a famous delineation of the possible relationships between the President and Congress:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . .
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .
3. 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. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our
constitutional system.
. . . . September 11th changed everything, we are told. But it is important to remember that the Justices who decided Youngstown had also seen war, plenty of war. Pearl Harbor was only a decade previous, and since that day the United States had been twice at war, and had continuously sent its forces around the globe to protect its interests. These Justices well understood the importance of national security to national survival. Indeed, they were all appointees of Roosevelt and Truman, Presidents who had taken the country to war. Yet they saw beyond the urgencies of the moment, and the ubiquitous declarations that war had changed everything. They upheld the principle of checks and balances, and rejected the claim of an unlimited Executive. And they helped preserve our democratic system of government in the process.”
December 22, 2005 at 2:29 pm
Posted in: Privacy (National Security)
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Responses (1)
MJ - December 22, 2005 at 3:46 pm
Marty Lederman is unbelievable. Here’s what he leaves out of the “dicta” and “throwaway line” in In re Sealed Case:
“The Truong court, AS DID ALL THE OTHER COURTS TO HAVE DECIDED THIS ISSUE, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev. 2002) (per curiam)
Also, in case the good professor doesn’t under stand what PER CURIAM means – it means “by the court” – not “almost certainly written by Judge Laurence Silberman.” That’s just a pathetic smear cloaked in legal analysis by someone who should know better. The entire FISA court opined – just like every other federal court of appeal (four of them to be exact) to consider the issue – that the President DOES have inherent power under Article II that FISA cannot encroach upon.
Any first-year law student would fail their exam by making such a feeble analysis: omitting the portion of the sentence that they didn’t like and then ascribing a Per Curiam holding as the opinion of only one judge.
His analysis is typical of the left: The Constitution means what they want it to mean: The cases only say what they want them to say: If the cases don’t say what they want them to say then they should be ignored – especially if they are not written by the right(correct)minded judges.
Unimpressive, at best.
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