The Youngstown Question and the Presidential Contest
posted by Timothy Zick
As the confirmation hearings of Michael Mukasey demonstrate, perhaps the most pressing concern in the upcoming presidential election is the shape the office itself will assume in January, 2009. Mukasey has created controversy by professing to be unclear with regard to whether waterboarding is “torture” and, more importantly, suggesting that the president has the constitutional power (in national security contexts) to act contrary to duly enacted federal law. As to the latter position, Youngstown, its progeny, and most of our constitutional tradition strongly indicate otherwise. Because no question is more fundamental or important to the office, we ought to be asking the presidential candidates the Youngstown question too. Perhaps more than any other in recent history, this election raises questions regarding not only what kind of president the candidates will be, but more fundamentally what kind of presidency they envision.
A few of the candidates have addressed that question, or provided substantial hints. For example, Hillary Clinton recently pledged to “relinquish” some of the executive powers she says the Bush Administration has illegitimately claimed and exercised. If the claim is that President Bush has exercised power he does not have — say, the power to ignore federal statutes — then “relinquish” does not seem the appropriate term. One cannot “relinquish” what one never possessed. Perhaps not surprisingly, candidate Clinton did not provide specific examples of powers President Clinton would not exercise. We also ought to keep in mind that presidents have made similar pledges in the past, only to renege once in office. Among the Republican candidates, we are gaining a clearer picture of Rudy Giuliani’s vision of the presidency. Not surprisingly, candidate Giuliani offers a very muscular conception of executive power. He has reportedly surrounded himself with hawkish advisors with regard to foreign policy. Striking Iran, he says, is a more timely concern than many Democracts will concede. More specifically, like Mukasey, Giuliani has said he does not know whether waterboarding is “torture.” He has also derided characterizations of sleep deprivation as torture as “plain silly.” He favors “aggressive” questioning of suspected terrorirsts. These answers ought to raise even greater concern than those recently given by Judge Mukasey; after all, Mr. Giuliani seeks all of the executive power the Constitution vests in the presidency. In any event, it seems a very safe bet that President Giuliani would not relinquish any presidential authority; indeed he may even seek to enhance the powers of the office.
Admittedly, it is not easy to work Youngstown (or any other constitutional precedent, save perhaps Roe) into presidential debates. The scope of presidential power generally is too nuanced for sound bites, zingers, and applause lines. But every candidate ought to at least be asked whether he or she believes the president is, under any circumstance, above the law. If so, he or she ought to be asked to provide specifics, using current examples (wiretapping, detention, “enhanced interrogation,” etc.) as necessary. If there is no clear answer to that question, then it would seem our democracy is in serious trouble. As Giuliani himself once wrote: “Elections are necessary but not sufficient to establish genuine democracy. Aspiring dictators sometimes win elections, and elected leaders sometimes govern badly and threaten their neighbors.”
October 25, 2007 at 11:01 am
Posted in: Politics
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Responses (12)
Adam - October 25, 2007 at 1:06 pm
“But every candidate ought to at least be asked whether he or she believes the president is, under any circumstance, above the law.”
This strikes me as an incorrect description of Youngstown. Youngstown did not describe situtations in which the President is “above the law”; rather, it described situations in which the President’s actions supersede statutes, pursuant to his Constitutional authority.
Along the same lines, those who try to characterize the current debate over presidential authority into one about whether the President “is above the law” strike me as either seriously confused or arguing in bad faith. As the courts have made clear at least as far back as Marybury v. Madison, “the law” begins first and foremost with the Constitution, which commits the executive power to the President. Now, we all can (and do) disagree over what “executive power” entails, and what the commander-in-chief power entails, but can we please put to rest the silly suggestion that any party to this debate is arguing that the President “is above the law”?
If not, then shall we all agree that, by the same rubric, any Supreme Court decision that invalidates a statute as being unconstitution is, in fact, an example of the Court putting itself “above the law”?
Discussion of Youngstown may well be too “nuanced” for political campaigns, but let’s hope that it’s not too nuanced for legal commentary web sites!
Tim Zick - October 25, 2007 at 6:01 pm
Well, to the extent a candidate posits that s/he has the authority to ignore a federal law — even one which s/he has signed — then I’m not sure how else to characterize it. And I think that is precisely what Youngstown was about. Jackson’s opinion squarely rejected the argument that the president had the “inherent” constitutional authority to “supersede” congressional statutes. (I won’t debate here the legitimacy of Marbury.) I doubt we’ll hear much about Jackson’s tripartite scheme during the campaign. But whether a candidate supports or intends to follow the “inherent power” position is something we should ask. In hindsight, we probably should have asked in prior elections.
Adam - October 25, 2007 at 10:11 pm
“Well, to the extent a candidate posits that s/he has the authority to ignore a federal law — even one which s/he has signed — then I’m not sure how else to characterize it.”
You seem to be equating “the law” with “a federal law.” The latter is, from your characterization, limited to statutes. Of course we all know that federal statutes are not the sum total of federal “law.” The constitution is first among the laws, and if the President ignores a statute pursuant to superior constitutional authority, then he certainly is not putting himself “above the law.”
But again, I must ask: If to disregard a statute in conflict with the constitution is to put oneself “above the law,” does that mean that the Supreme Court have had to put itself “above the law” to strike down the Partial Birth Abortion statute last Term? Would the Court have to put itself “above the law” to strike down the Detainee Treatment Act this Term? If the Congress passed, and the President signed, a law banning homosexual conduct, would the Court have to put itself “above the law” to strike it down? I seriously doubt that.
As for Jackson on inherent powers, I think he quite plainly acknowledged them in Youngstown, when he referred in Category 3 to the President’s “own constitutional powers.” Indeed, in my own research on the subject of Jackson’s draft opinions (Vol. 69 of the Albany Law Review), Jackson was quite open in his acceptance of the notion of Article II authority that superseded statutes. He wrote in one draft that it is “futil eand misleading to believe that we can ascertain the power of the President merely from reading the Executive Article of the Constitution.” He stated that “No one, I assume, would question that inherent in the powers of the Commander-in-Chief is the power to seize … supplies immediately necessary for his troops … .” Jackson agreed that inherent powers resided in Article II, he just didn’t draw bright lines. That, I recommend, is the proper lens through which to read his comment on the President’s “own constitutional powers.” (Honestly, we should accept no less from a jurist so awed by FDR.)
But to be honest, I do think that Jackson’s Youngstown opinion is alive in well in today’s political debates. His opinion was nothing more than a reiteration of straightforward political reality: When the President and Congress are in agreement, the Court will have very little practical power to stop them. When the President and Congress disagree, then the President better have a damned good reason, and lots of political capital, to back him up. And that’s precisely what this campaign largely has been about.
Adam - October 25, 2007 at 10:21 pm
“Jackson’s opinion squarely rejected the argument that the president had the “inherent” constitutional authority to “supersede” congressional statutes.”
Incidentally, I’m not sure how you can square your statement with the fact that, in his Category 3, Jackson expressly stated that the President can prevail over Congress even in the face of a contrary congressional enactment.
Tim Zick - October 25, 2007 at 10:56 pm
I suppose we ought to distinguish two scenarios. In the first, the president refuses to follow the law on constitutional grounds. If not from some “inherent” power, I assume the president’s “superior constitutional authority” derives from his broad grants in the vesting, commander-in-chief, and take care clauses. These are, of course, the grants the Court held did not permit Truman to seize the steel mills –even though Truman interpreted the Constitution quite differently. As you know, the president can prevail in Category 3 if and only if the Constitution displaces congressional power. No one suggests that the president must follow a law that violates any prohibition in the Constitution — the First Amendment, for example. One might even argue that in some rare circumstances, the president may disregard a federal law because s/he objects on constitutional grounds. I think it insufficient to say that that the constitutional ground is simply that with regard to matters of national defense, the president cannot be restrained because he knows best as commander-in-chief how to defend the nation.
This first scenario is, it seems to me, just marginally distinguishable from saying that the president can simply disagree with any duly enacted federal law he wishes because he knows what is best for the country. Then a president is quite clearly acting as if s/he is “above the law.” That, by the way, is the position Mukasey was taking in the recent hearings. Jackson was ambiguous with respect to some things (and you’re right about the importance in many cases of political, as opposed to judicial, involvement). But both he and Black rejected the notion that the president’s powers took him so far.
Tim Zick - October 25, 2007 at 11:42 pm
I meant to add that in category 3, Jackson made clear that the president could prevail only if one could conclude that Congress lacked power to act in an area or with respect to a paricular issue (or that the president’s power alone permitted the executive act — an argument that did not get Truman far). My First Amendment example may not be directly on point here. Of course, Congress lacks power to contravene prohibitory provisions. More to the point, in order to contravene a statute the president would have to prevail in arguing that Congress was displaced with regard to some matter of national security — a very difficult argument, one would think, given its several enumerated powers relating to national defense. National secutiry matters are not the only ones the Youngstown question relates to, of course. But they are among the most germane in terms of charting the contours of the next presidency.
Adam - October 26, 2007 at 12:10 am
“This first scenario is, it seems to me, just marginally distinguishable from saying that the president can simply disagree with any duly enacted federal law he wishes because he knows what is best for the country. That, by the way, is the position Mukasey was taking in the recent hearings.”
I’m sorry, but that interpretation of Mukasey’s testimony is ludicrous. Mukasey never said that the President can ignore laws because “the President knows best.” Perhaps you can point to testimony that contradicts me (I’ll admit that I didn’t watch gavel-to-gavel coverage of Mukasey’s testimony), from what I saw and read, his testimony was perfectly consistent with the Administration’s position that the President’s power to conduct surveillance outside of FISA restrictions arises from the President’s constitutional “executive power” and/or his power as “commander-in-chief”.
You draw a distinction between cases where the President claims inherent power and ignores a statute regarding a subject over which Congress has no authority, and those where the President claims inherent power and ignores a statute regarding a subject over which Congress does have authority. But could you cite a single example where any President — or a supporter of that President’s cause — has claimed to be undertaking the latter task? I’m not sure I’ve ever heard of such a thing.
Adam - October 26, 2007 at 12:15 am
Incidentally, bringing things back to Jackson, I still think you got him wrong. As I noted in article on the subject, Jackson stated in drafts that ““[n]o one, I assume, would question that inherent in the powers of the Commander-in-Chief is the power to seize . . . supplies immediately necessary for his troops and facilities for their housing [except as prohibited by the Third Amendment].” Jackson’s quite clearly countenanced the notion that, that situation, the President’s commander-in-chief authority trumped Congress’s power to make rules for the military, or to make those laws necessary and proper to carry into execution the powers vested in the President.
Adam - October 26, 2007 at 12:23 am
Just one other note, while I have Jackson on the brain: In his original version of the three-part test, he explained: “2. If the President is acting contrary to the enacted policy of the Congress, his power to do so should be scrutinized with great severity and require justification.” He made no reference to the President winning only when Congress had no Constitutional authority over the subject.
I think that that may reflect the better understanding of Jackson’s statement that the President could prevail over the contrary Congress only where the Court “disabled” Congress: By “disabled,” he wasn’t referring to a lack of congressional claim to power under the constitution; he was taking a functional approach, observing that the President could only succeed by the Court refusing to give effect to Congress’s power. Let’s not forget that Jackson was a functionalist, not a formalist.
(Of course, none of the above is to suggest that Jackson’s drafts are somehow as authoritative as his final opinion. There’s a reason why his drafts were changed before they became the published opinion. That said, I don’t think that he intended discrepancies in the parts I’ve noted above to entail substantive differences, particularly when the final opinion’s words are so compatible with the words of his drafts.)
Tim Zick - October 26, 2007 at 8:00 am
Adam –
As for Mukasey’s testimony, I don’t think my read is “ludicrous” at all. Jed Rubenfeld read it that way in his recent Op-Ed in the New York Times. Marty Lederman has also raised this point on Balkinization. And Arlen Specter has submitted a letter to Mukasey in which he asks of Mukasey (in light of his testimony that the president “can act outside the law” on national security matters): “How do you deal with the public concern that the rule of law is supreme and the president at times appears to put himself above the law?” “If you believe the president can act outside the law, how do you square that belief with your statement at the hearing that ‘the president doesn’t stand above the law’?” Specter and others are thus making the same “silly suggestion” I made in the post.
I’ve read your piece on Jackson’s drafts and found it very interesting. I have actually provided it to my con law classes, as we try to come to terms with Jackson’s opinion. As you say, these were drafts. Jackson was indeed a functionalist. That said, I still read Jackson as saying that in a case in which the president acts contrary to statute, he is the presumptive loser; he can overcome that presumption only if the Constitution disables Congress. Again, as Jackson explained, in the contexts of national security and war Congress is granted ample powers of its own. I think his discussion of congress’s powers was meant to demonstrate the rather obvious point that congress had not been disabled at all.
You ask whether I can point to a single example “where the President claims inherent power and ignores a statute regarding a subject over which Congress does have authority.” Wiretapping and FISA comes to mind (although I anticipate that the likely rejoinder will be that the AUMF authorized that action). In any event, the president is seeking approval now — better late than never.
Adam - October 26, 2007 at 10:04 am
Tim,
Wow, thank you very much for handing those out to your class. I’m rather surprised to hear that my short article was actually read by someone.
Now, back to the quarreling. I read Rubenfeld’s NYT op-ed; I think he mischaracterized Mukasey’s answer. Look at the full context of Rubenfeld’s first quote. Here’s how Mukasey concluded his answer:
“MUKASEY: The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn’t stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution.”
So, again, Mukasey is simply reiterating the Bush Administration’s now-familiar line that the President’s authority under Article II of the Constitution, as sole holder of the Executive Power and as Commander-in-Chief, to undertake certain national security activities that are not susceptible to Congressional regulations. Now, we can quibble over the merits of that position, but you simply can’t say that Mukasey endorsing a position that the President can put himself “above the law.” Quite the contrary: Mukasey is arguing that the President is acting in accordance with law — i.e, with the Constitution.
Now, at Mukasey’s hearing, Pat Leahy certainly described this position as the President “act[ing] outside the law,” and Specter used the same terminology in his letter to Mukasey, but can we just call a spade a spade? Specter and Leahy’s references to “acting outside the law” clearly refer acting outside of statutes.
(And even if Leahy and Specter meant “statutes and the Constitution” when they said “law,” Mukasey’s own testimony makes clear that his interpretation of Presidential authority is rooted in Article II powers.)
Adam - October 26, 2007 at 10:08 am
As for FISA: When did the President say that he had authority to work outside FISA and that Congress has the authority to regulate FISA? Part III.D if the Bush Administration’s/DOJ’s White Paper on the subject discussed at length the Administration’s position that Congress did not clearly have power to regulate the President’s conduct of surveillance of foreign persons.
But again, don’t take my vigorous debate on these points to undermine my appreciation for your using my article in class. I am, again, surprised and grateful. I would note, though, that I think you (and many others) err when you suggest that Jackson took the statutes at issue in Youngstown to constitute Congress’s regulations of “national security and war.” Jackson saw Youngstown as a case of traditional commerce regulations, not of the President’s war powers.
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