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Friday, April 07, 2006

Ackerman and the Article II Bandwagon

YLS prawf Bruce Ackerman has been one of the more prolific writers on emergencies post-9/11, and his latest, a piece for Slate that was posted on Wednesday, echoes many of the themes Ackerman first suggested in his Yale Law Journal Essay, "The Emergency Constitution," and expanded upon in his new book, "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism."

One of Ackerman's central points, which comes through emphatically in his new Slate piece, is that Congress (or the People, through Article V) needs to create an emergency framework so that, after the "next" attack, the President doesn't fall back on his Article II powers.

There's lots to be said in response on the baseline point -- that the response to overreaching is to codify authority that one might previously have thought the Constitution could not countenance. There's all the more to say about this today, since this Congress's response seems to be that the best thing to do is to strip jurisdiction from the courts to actually police the lines between the two political branches.

But there's one passage of the Slate piece that particularly stands out to me:

According to the Washington Post, the American military has "devised its first-ever war plans for guarding against and responding to terrorist attacks in the United States, envisioning 15 potential crisis scenarios and anticipating several simultaneous strikes around the country." When asked about the legal basis for such military intervention, Pentagon authorities have told Congress they see no need to change the law. According to military lawyers here, the dispatch of ground troops would most likely be justified on the basis of the president's authority under Article 2 of the Constitution to serve as commander in chief and protect the nation. "That would be the place we would start from" in making the legal case, said Col. John Gereski, a senior [military] lawyer.

This strikes me as very off the mark, and a particularly bad place from which to launch a proposal for a framework emergency statute as a "response."

As I've written [and mentioned here before], the Constitution was explicit in vesting emergency power to respond to domestic attacks in the Congress. The idea, as early statutes (and the actions of President Washington in quelling the Whiskey Rebellion) demonstrated, was that Congress would delineate the circumstances wherein the President could call out the military on the home front (so long as it was "to execute the laws of the union, suppress insurrections and repel invasions"), and that the President was limited to the terms of the statutory grant. It was this constitutional provision (the "First Militia Clause") to which Justice Jackson was referring in Youngstown in concluding that "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." [my emphasis.]

The early Congresses, to their credit, understood that there would be emergencies that they could not foresee, and so also delegated a more general emergency power to the President when Congress was out of session, and for 30 days after the beginning of the next legislative session (back when Congress could not possibly act expeditiously when it was out of town). Moreover, although the Constitution only spoke to calling forth "the militia," Congress, in 1807, expanded its early framework statutes to include the federal regulars (with one important exception -- repelling invaders -- that's wholly unexplained in the legislative history).

In other words, at least with respect to domestic emergencies, there's a pretty strong textual argument that the absence of statutory authority leaves the President very little room to use the military on the homefront except to repel invaders -- that the "martial law" power, to whatever degree it is countenanced by the Constitution, is primarily legislative.

And so, I think Professor Ackerman is dangerously near-sighted when he suggests that the justification for a new legislative framework is the appeal that the Article II argument would necessarily have after the next attack. He may be right as a matter of realpolitik, but as a matter of constitutional law, I fear he is not just wrong, but dangerously so. That is to say, the "Congress should authorize it because the President would do it anyway" theory strikes me as a remarkably irresponsible position to take vis-a-vis the separation of powers during crisis times. If one really believes Justice Davis's line from Milligan -- that martial law should never prevail so long as the civilian courts are open and their processes unobstructed -- then one should stand up for that principle, and not encourage Congress to abrogate the independent and coordinate role that the plain text of the Constitution clearly contemplates for it.

Posted by Steve Vladeck on April 7, 2006 at 05:45 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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Comments

I've been puzzled why, given that I'm such a con law geek, I have a tough time reading material that should fascinate me about Article II powers. I think I finally figured out why: President Bush, the Congress, and the Supreme Court have basically been saying that Con Law doesn't really matter, because either:

(1) The Preident can do whatever he darn well pleases, even in violation of an entirely lawful federal statute, because the vagueness of his Article II powers makes those powers unlimited.

OR:

(2) If the Congress and the Court are feeling really "uppity," the President gets only 90% of the power he wants, with (a) Congress insisting on codifying what the President wants, and/or (b) Congress and the Court insisting on limited, empty, toothless "oversight" (e.g., Congress mandating empty "briefings", or the Court insisting that it retain virtually-never-exercised jurisdiction to grant habeas petitions).

In short, I feel like, as a Con Law professor, I no longer study The Law Of The Land. I'm studying a quaint system that no longer applies to our country. Perhaps it never applied, given our national history: the Alien and Sedition Acts; Andrew Jackson declaring that he can ignore the Supreme Court; Civil War-era Executive power abuses; prosecutions of communists, Japanese-Americans, and anti-war activists from the 1910s to the 1960s; and now this. I don't know whether I'm getting too cynical or whether I'm just idealistic in my vision of Con Law -- maybe a little of both.

Posted by: Scott Moss | Apr 7, 2006 10:06:38 PM

That's all true to some extent, but I think that there have to be continuity plans that accept the potential of a decapitated government, and I think that the reality is that the executive is the lead branch in a post-emergency scenario. That inevitably means trusting the President (whoever s/he may be) to have the same sort of commitment to democracy that everyone else has; I really think Ackerman is getting a little too close to the tinfoil hats and daily kos crowd when he starts a sentence saying things like "[a]fter months or years of presidential martial law" - surely Ackerman doesn't seriously believe that all Presidents are basically tinpot dictators awaiting the opportunity to coronate themselves.

I have probably a stronger institutional distrust of the executive branch than is probably healthy, so I ought to be as receptive to the sort of thing you're talking about as anyone is; given the choice, I would cut the Presidency down to a scale unseen since the days before Andrew Jackson. But I am reluctantly forced to admit that you can't manage a crisis by committee, and the executive is the natural leader in such times. I don't have objections to providing for Congressional oversight when possible, but I think any analysis has to start from the sane and rational basis that assumes good faith on the part of a President, a presumption there is no reason to doubt.

Posted by: Simon | Apr 7, 2006 1:38:00 PM

Simon -- For sure; "Debt of Honor" certainly paints the picture for that scenario. But I think my point is that, aside from providing for a continuity-of-government plan in advance, it strikes me as dangerous for Congress to otherwise so thoroughly surrender its constitutional authority in this field. The flip side, though, is equally troubling -- it's not necessarily a better idea to wait for _after_ the attack. The real point of my post, though, is that I'd reject the Article II-only argument either way, at least insofar as the _response_ to a domestic emergency is concerned.

Posted by: Steve Vladeck | Apr 7, 2006 10:34:31 AM

Steve,
Isn't at least one possibility for a catastrophic terrorist attack the decapitating of the Congress? Tom Clancy had a book - years before September 11th, actually - about a plane being deliberately flown into the Capitol during a SOTU, killing most of Congress. Once you accept the presumption that there will be another attempted terrorist attack on the United States, it's really not hard to imagine various scenarios in which terrorist attacks of various kinds kill all (or at least a quorum) of one or both chambers. Because it would therefore take some time to re-constitute and re-assemble a viable Congress, doesn't this prospect takes us back to essentially the same situation as the prospect of invasion or insurrection in the early Republic, where a Congress that was out of session could not assemble and direct a response?

In other words, doesn't there have to be at least one emergency contingency plan that assumes Congress either cannot assemble or no longer actually exists?

Posted by: Simon | Apr 7, 2006 9:14:40 AM

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