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Tuesday, December 20, 2005

The Inherent Power "Debate"

And so, as Lyle writes over at SCOTUSBlog, the jig is up. We've finally come to the heart of the Bush Adminstration's legal position in the war on terrorism -- that it doesn't even matter whether Congress has authorized the President's actions; he has "inherent" constitutional authority, by virtue of the Commander-in-Chief Clause, to do whatever he deems necessary. I agree wholeheartedly with both Dan's and Hillel's posts about "Snoopgate," but wanted to separately add some thoughts of my own.

Although I've elsewhere written about the extent to which contemporary arguments for inherent domestic presidential emergency powers are not easily reconciled with the original understanding, what's really fascinating here to me is the extent to which the Administration has completely forgotten (or tried to obliterate, through silence) Youngstown. Here's the famous passage from Jackson's concurrence:

    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. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. . . .

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. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions * * *." Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.

Consider also this quote of Hamilton's (the well-known opponent to presidential power that he was), from The Federalist No. 69:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.

What we've come to then, is a debate about first principles.  Did September 11 really alter fundamental structural imperatives in American constitutional law, to the extent that the President may today resort to inherent powers domestically in a manner that has never been sanctioned otherwise? Even when Congress affirmatively disavows presidential authority, has 9/11 so irrevocably rewritten American jurisprudence that the President remains unchecked, domestically, by the other two branches?

Unfortunately, the two present cases even remotely raising these questions -- Hamdan and Padilla -- will likely not require the Court to answer them. [Although, interestingly enough, this was the government's initial position in Padilla -- that the President has all the authority he needs under the Commander-in-Chief Clause, and no congressional authorization is necessary.]

But somewhere along the way, this gets VERY dangerous, very quickly, and I'm increasingly starting to think that we're past that point. Early in the Padilla litigation, District Judge Mukasey objected to the argument of one of the amici in support of Padilla that, if the government's position were sustained, "
a dictatorship will be upon us, the tanks will have rolled." As Mukasey wrote:

Those to whom images of catastrophe come that easily might take comfort in recalling that it is a year and a half since September 11, 2001, and Padilla's is not only the first, but also the only case of its kind. There is every reason not only to hope, but also to expect that this case will be just another of the isolated cases, like Quirin, that deal with isolated events and have limited application.

I wonder if he could still be so sanguine today.

Here's what's basically bothering me: It's one thing for Congress and the President, acting together, to so decisively alter the traditional constitutional framework (which, of course, is not to assume the constitutionality of such action). But it's something else altogether for the President to take the position that it was up to him, by himself, and that Congress had (and has) nothing to say about it. Whether that understanding of constitutional law prevails in the field of foreign affairs is an important and worthwhile debate. But it has long-since been decisively rejected, as a necessary part of the constitutional dynamic, that the President has such unchecked unilateral authority at home. Not even Lincoln took such a bold view, and that was during the Civil War.

Two quotes from at or near the Founding are particularly poignant here -- the first is Madison, writing in The Federalist No. 47:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

The second is Chief Judge William Cranch, writing for the old D.C. Circuit Court in a case arising out of the Burr Conspiracy [there's no free link out there; the cite is United States v. Bollman, 24 F. Cas. 1189 (C.C.D.D.C. 1807) (No. 14,622)]:

In times like these, when the public mind is agitated, when wars, and rumors of wars, plots, conspiracies and treasons excite alarm, it is the duty of a court to be peculiarly watchful lest the public feeling should reach the seat of justice, and thereby precedents be established which may become the ready tools of faction in times more disastrous. The worst of precedents may be established from the best of motives. We ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which an hundred innocent persons may suffer. The constitution was made for times of commotion. In the calm of peace and prosperity there is seldom great injustice. Dangerous precedents occur in dangerous times. It then becomes the duty of the judiciary calmly to poise the scales of justice, unmoved by the arm of power, undisturbed by the clamor of the multitude. 

There is something more than a little bit scary about the argument that the President has the inherent constitutional authority to act domestically in whatever fashion he sees fit to "defend" the nation from terrorists. At least, finally, it's out in the open.

But that doesn't make it any less discomfitting.

Posted by Steve Vladeck on December 20, 2005 at 12:40 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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I received this e-mail last night from a commentor who can't post comments from his office:

Sorry to email, but I can’t post from work due to our firewalls. It seems to me that that in order to take on the Administration’s claims, you’re citing to the wrong quote from Justice Jackson’s concurrence. The Administration is arguing that congress impliedly authorized his actions via the UOFA under an exception in FISA. Thus, the relevant passage from Justice Jackson is:

“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.” 343 U.S. 579 at 636.

It seems necessary to take on that argument (which may actually be an argument that congress better be much more clear in what authority it grants to a sitting president) rather than simply accusing the Administration of having “completely forgotten (or tried to obliterate, through silence) Youngstown.”

All the best,

Michael J. Hunter, Esq.

Thanks for the e-mail Michael, and for the point about the implicit congressional authorization. I see two big problems here, but perhaps I'm in the minority: (1) The notion that the use of force authorization includes all these types of domestic authority that have never been understood to come part-in-parcel with such authorizations strikes me as very dangerous. Did the Gulf of Tonkin Resolution, for example, authorize all of Nixon's domestic shenanigans, many of which _prompted_ the enactment of FISA?

(2) It's the Administration, not me, that's arguing that, even without the use of force authorization, the President can fall back on his inherent constitutional authority as Commander-in-Chief. So, it seems as if it's the Administration arguing that we're in the "lowest ebb" category of Youngstown, since this is _not_ an area where the President has had traditional inherent powers.

What's really fascinating here is that, in some ways, this is a re-hash of Padilla. There's a statute, 18 U.S.C. [sec.] 4001(a), that arguably prevents the President from acting independently; there's a plausible, but not necessarily compelling, argument that Congress has otherwise authorized the presidential action, but there's nothing specific. I think that _that_'s where things get dangerous -- when Presidents start invoking authority to act domestically based either on no congressional authorization or authorization that is implicit, at best.

Posted by: Steve Vladeck | Dec 21, 2005 9:44:12 AM

Haloscan trackbacks to Typepad don't seem to work anymore. So this would be my trackback: "Taking The Fall", posted at The Debate Link.

Posted by: David Schraub | Dec 20, 2005 1:10:47 PM

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