The NSA Surveillance Program and the Article II Argument:
In yesterday's Wall Street Journal, Professor Robert Turner advances the argument that the President's Article II authority trumps FISA, and that therefore the NSA surveillance program as we know it is probably legal. Although Article II is not my area of expertise, I have different instincts on these issues. I thought I would quote from Turner's piece paragraph-by-paragraph and explain my questions and why I tend to disagree. To be clear, I'm not intending my questions and comments to be the last word on any of these issues. Rather, I hope they'll help advance the conversation and sharpen the debate; if my instincts are wrong, I hope commenters or other bloggers will carefully explain why.
I'll skip over the first part of Turner's piece, which is more historical argument than a legal one, and start in with the fourth paragraph:
As for the 9 words of dicta from In re Sealed Case — "FISA could not encroach on the president's constitutional power" — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President's constitutional power from pre-FISA days would still exist? I'm not entirely sure, and unfortunately the opinion doesn't carefully explain it. If this phrase stands for the view that Article II powers trump FISA's restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case.
Finally, if the issue is how the Supreme Court would rule, I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim. That's my ballpark guess, at least. We may find out as early as this summer, too; if the Court grants cert in Padilla, which it probably will, there may be some interesting opportunities for opinions that shed more light on these issues.
To be clear, I think the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don't yet know. But in constrast to the difficult issues involving FISA and the AUMF, I don't see the Article II claim as a close one based on existing law. Am I wrong? If you think so, please consider leaving a comment explaining why. I am particularly interested in case citations and arguments based on existing legal authorities.
I'll skip over the first part of Turner's piece, which is more historical argument than a legal one, and start in with the fourth paragraph:
For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.I don't have a reason to doubt that, but I'm not sure how it's relevant: Attitudes changed after the Nixon presidency, and the issue is the legality of post-Nixon legislative restrictions on executive power.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.I think everyone agrees that the Constitution reigns supreme. Of course, the question is whether and why a law like FISA might violate the Constitution.
Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.I'm not sure of the context of Bell's comment — I couldn't find it on westlaw, and it doesn't come up on google. But I think it's important to note what Gorelick was and was not arguing. As I understand it, Gorelick wasn't claiming that Congress couldn't regulate the President's authority to conduct physical searches. As the transcript of her testimony at that time suggests, she was arguing that absent statutory regulation, the executive had that power (as several circuit courts had held). In other words, Gorelick was using the phrase "inherent authority" to mean "not needing Congressional authorization," rather than "unable to be subject to Congressional regulation." And of course, whether past DOJ officials have claimed this power is much less relevant than whether courts have agreed.
I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."There are two separate issues here, I think. With the exception of the 9 words of dicta from the 2002 FISA court decision, all of those precedents were dealing with the Fourth Amendment's warrant requirement. Specifically, the issue was whether the Fourth Amendment requires a warrant when the government engages in foreign intelligence surveillance. That's not the issue here, I think, as most people seem to be focused on FISA rather than the Fourth Amendment.
As for the 9 words of dicta from In re Sealed Case — "FISA could not encroach on the president's constitutional power" — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President's constitutional power from pre-FISA days would still exist? I'm not entirely sure, and unfortunately the opinion doesn't carefully explain it. If this phrase stands for the view that Article II powers trump FISA's restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case.
For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.What is the best case for the view that Congress cannot limit monitoring to 15 days? And is domestic surveillance really the same as attacking a particular enemy stronghold? It seems to me that you can analogize the surveillance program in different ways, depending in part on details we don't yet know, and I'm not sure the "enemy stronghold" analogy is the best. For example, I gather that some critics would say that limiting surveillance monitoring is more like blocking the President from seizing steel mills to avoid a wartime stoppage of much-needed steel production. The Supreme Court held that this power exceeded Article II in Youngstown Sheet & Tube v. Sawyer; why isn't this a better analogy? Does it matter how widespread the monitoring was? When it was conducted? How it was conducted?
Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.
America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.First of all, the motives of the leakers and people on Capitol Hill obviously aren't relevant to the legality of the NSA program. But even as a political argument, it seems really unfair; I am also very uncomfortable with the leaks here, but I don't know how we can lump the leakers together with unnamed "Capitol Hill supporters." I gather this was meant to be exagerrated for effect, but the idea that "Capitol Hill" opponents of the program "seem determined to guarantee al Qaeda a secure communications channel" under any circumstances is preposterous.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.But "the courts" in question were all deciding cases under the Fourth Amendment, right? "The test" mentioned here was the Fourth Amendment test, not the test for legality. I agree that the program probably passes Fourth Amendment muster; it's the prohibitions of FISA that are the issue.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.Again, I think this claim confuses two different powers: powers to conduct surveillance absent congressional authorization, and powers to conduct surveillance in the face of congressional prohibition.
Finally, if the issue is how the Supreme Court would rule, I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim. That's my ballpark guess, at least. We may find out as early as this summer, too; if the Court grants cert in Padilla, which it probably will, there may be some interesting opportunities for opinions that shed more light on these issues.
To be clear, I think the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don't yet know. But in constrast to the difficult issues involving FISA and the AUMF, I don't see the Article II claim as a close one based on existing law. Am I wrong? If you think so, please consider leaving a comment explaining why. I am particularly interested in case citations and arguments based on existing legal authorities.
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To the extent it conflicts with the President's Commander-in-Chief power during a time of war, yes.
FWIW, I was thinking the probable "1" would be Justice Thomas, not Alito.
The way I see the argument being played out, is that Congress can no more pass a law binding future Congress' to certain decrees. The most common example is congress passing by statute a law which prohibits (say) tax cuts with less than 60% vote. If Congress passed such a law, that was then signed by the President, and a subsequent Congress then passed a tax cut by 50%+1 votes the tax cut would still be effective. The prior legislative act was meaningless, it could not be effective.
I suppose this is also similar to the idea that certain duties are non-delegable, perhaps some duties are not restrictable, one of which being the authority of the President in war times.
Just as Congress can not bind future congresses the President and Congress can no more bind future presidents. (Importantly this is recongized in the fact that the standing rules of the Senate do no more bind the Senate then the fact that by a 50 + 1 vote all the standing rules can be swept away. By default the fact the rules still exist means that there does not exist 50 + 1 votes to change them).
Imagine, for example, that Congress passed a law which created the office of Supreme Commander of American forces, later signed by the President, which created an office of greater authority then the commander-in-chief held by the speaker of the house no less. Would that, Could that statute take effect? Certainly Not, if Congress and even the sitting president wants to restrict the future president's authority as CIC they must amend the constitution a statute is wholly ineffective.
Here's the text from this site.
Art. I Section 8 states in part, that Congress has the power:
...
To make Rules for the Government and Regulation of the land and naval Forces;
...
One could argue that the NSA is not part of the land and naval forces, but then how would the Commander and Chief power then apply since Article II makes the President Commander in Cheif of the Armed Forces not Commander of intelligence services?
What's most disturbing about the Bush Administration position is that they seem to be arguing that Congress has no inherent right to involvement in wartime decisions at all. But the many provisions of Article I, Section 8 dealing with war and the military would clearly seem to suggest that the intent was for Congress to have a large role in the conduct of war.
Ever heard of the Reichstag Fire, people?
The Weimar constitution had an emergency-powers clause. Bad idea, that. Ours does not.
I keep imagining the Constitutional Convention's being briefed by John Yoo, or some of the VC's commenters, on the "inherent Article II powers of the President." They would ridicule the poor guy.
The problem is Congress did not declare war, matter of fact it went out of it's way not to declare war. The reason for that is simple, they did not want to grant the President complete war powers. Insted they passed an additional bill, the Patriot Act, to grant the additional powers they felt he would need. If Congress had declared war much that bill would be unnecessary.
In any case I agree with DS, according to the constitution Congress does have the authority to regulate how the governmental and military forces conduct themselves, even in a time of war. What they don't have is the authority to dictate tatics.
Of course, Congress always has the sole power of the purse and has had to use it before in the war context.
Perhaps someone can answer this: it takes a non-constitutional majority in both houses of Congress to declare war, right? But in the past has the President signed such passed declarations or resolutions? Has the President been thought able to veto such a declaration, forcing it to be passed by 2/3? Can a simple majority of Congress UN-declare war and so force a cessation of hostilities without having to resort to defunding, and would such an UN-declaration be subject to veto?
Oh, I might as well mention my recent scribbling in related matters, Who's Watching the Watchers?
In my personal observation of this evolving constitutional dispute, it seems that all precedent and case law cited, except possibly 'Sealed Case', does not invoke a change in the construct created by the War on Terror and prevention of terrorist acts and pre-dates 9/11, which is the foundation of the current argument.
Won't the Supreme Court include that in any decision rendered ? If that is the case, would they see the Article II argument, not as an expansion, but a re-definition of executive branch powers ? This question would only hold true IF the scope of the NSA surveillance is only as narrow as the administration alleges. I would certainly agree the Supreme Court would strike down any broad expansion of executive authority, but the Article II argument as put forth is very narrow and explicit in assignation to terrorism related surveillance.
I think this legal issue, when (not if)it comes before the Supreme Court, is laying out new ground which will impact future rulings and affect the way we interpret and opine on constitutional legal issues in the future and the way we legally parse the semantics in legislation like AUMF or FISA.
With this breathtakingly extreme statement, Professor Turner calls the rest of his article and assertions into question.
First: Why did FISA include a 15-day war exception? After all, the President's need for intel through electronic surveillance presumably continues in full force even after 15 days, right? The answer is that Congress (and the President) specifically contemplated that FISA might need amending in times of war, and the 15 days was thought to be enough time for the President to offer an amendment and for Congress to consider it: The Conference Report explains that "[t]he Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720, at 34 (1978). The Conference Committee substituted the 15-day provision for the House version of the bill, which would have authorized the President to conduct warrantless electronic surveillance for the first year of a war. The point being that Congress did not wish to give the President carte blanche to run roughshod over FISA during war, but instead insisted that the law be subject to the (expedited) legislative process.
Rather than follow this course and seek an amendment to FISA here, the President simply acted unilaterally in contravention of FISA.
Second, the FISA Court dictum ("FISA could not encroach on the President’s constitutional power") was taken almost verbatim from the 1978 testimony of former Deputy Attorney General Laurence Silberman, who was virtually alone -- contra Attorney General Bell -- in testifying against the constitutionality of FISA. See Foreign Intelligence Electronic Surveillance: Hearings Before the House Subcomm. on Legislation of the Permanent Select Comm. On Intelligence, 95th Cong., 2d Sess. 223-224 (1978). Whadda ya know?: Silberman was one of the three judges on the panel in In re Sealed Case. Fancy that! Obviously, he was trying to insert a poison pill to revive his quarter-century-old constitutional objection -- but his constitutional view was rejected by legislature and executive alike in 1978 and has, as far as I know, not been embraced by anyone else in any of the three branches.
Third, I think it's very telling that DOJ has not (yet) embraced this Article II theory in its defense of NSA: No doubt they believe (and I agree) that to suggest that FISA is unconstitutional would be even more politically unpalatable than telling Congress that it inadvertently blew a huge whole through FISA when it enacted the AUMF.
The Constitution in no way says, "The Congress shall have the power.... to declare war by passing a resolution with the words 'declaration of war' in it."
All it says is that Congress has the power to declare war. Why don't you think it did so?
The 1967 Katz case held that electronic surveillance is protected under the requirements of the Fourth Amendment.
The 1968 Omnibus Crime Control and Safe Streets Act of 1968 criminalized surveillance outside the color of law. But the legislation did not regulate foreign-intelligence surveillance, and included the following language acknowledging executive power in this area, codified as 18 U.S. Code 2511(3):
The landmark Keith case forbade warrantless national-security surveillance, but only in the limited situation with "no evidence of any involvement, directly or indirectly, of a foreign power." It left such foreign-power situations unresolved.
There were circuit cases on foreign-intelligence surveillance. United States v. Brown in the 5th Circuit in 1973 upheld the legality of warrantless surveillance for gathering foreign intelligence. That was followed by United States v. Truong Dinh Hung, which set certain rules for when such warrantless surveillance for the "primary purpose" of foreign-intelligence surveillance could be used in criminal prosecution. Some other circuits followed Truong.
But the issue never was resolved definitively by the Supreme Court.
Meanwhile, following the scandals of the 1970s, including the COINTELPRO excesses exposed by the Church Committee, Congress chose to enter the fray after all. The result was the enactment of FISA in 1978.
FISA repealed 2511(3) quoted above, and substituted the new structure of the FISC courts and its corresponding requirements for approving surveillance. In an area where Congress once was silent and deferred to the executive, it now chose to legislate.
Thus, it seems to me, if the claims of "inherent" Article II authority are considered within the framework of Justice Jackson's famous opinion in Youngstown, Congress used to be in Category 2. After passage of FISA, however, Congress had spoken. Category 2 is no longer a reasonable description. We are either in Category 1 (where the president and Congress are in agreement), or Category 3 (where they are in disagreement.)
Which of those is the case, after enactment of the 2001 AUMF, depends on whether the Bush administration is correct in its assertion that AUMF's general language satifies an exception to FISA, or not.
That, I believe, is where an analysis under the Youngstown precedent would leave us. The administration's argument for inherent Article II authority would be dependent on its argument for interpreting the statutes themselves. If their statutory argument fails, then the Article II authority fails with it.
However, it seems that the administration position goes further than this, implicitly rejecting the Youngstown framework. The president now seems to argue that its inherent Article II powers cannot be constrained by what Congress does.
Justice Jackson, meet John Yoo.
Just because "Congress thought" doesn't make their action a constitutional one. Pace Gordon above, there's nothing "extreme" about suggesting that the Congress exceeded their own authority by passing the War Powers Act: every President--Democratic and Republican--who has held the office since its passage has asserted that the WPA does not bind him, though many have complied with its reporting requirements nevertheless.
By extension, it's certainly a colorable argument that FISA exceeds Congress' authority also.
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices ..."
I can see where from this you get the argument that the president controls intelligence, as that was probably part of the army at the time. But how from that, do you get the idea that the President can in the pursuit of intelligence ignore other parts of the Constitution, namely the Fourth Amendment?
In the case of FOREIGN intelligence it makes some sense, as non-US citizens are not covered by the Constitution. But the Bush Administration is arguing that its Commander in Chief powers give it the ability to ignore the Fourth Amendment of the Constitution even when it involves surveillance of Americans. And if they can ignore this part of the Constitution, what else can they ignore -- prohibitions against seizure of property without cause? prohibitions against detention of US citizens without cause? prohibitions against cruel and inhuman punishment?
Frankly, this interpretation of the Commander In Chief clause looks like a bit of judicial activism using a loose construction theory of the Constitution, and previously I understood conservatives to believe in strict construction.
But the other piece of this is the Bush Administration's conducting warrantless searches without judicial review. In effect, Bush sets himself up as the person who writes the rules governing the NSA program and then as the judge of whether NSA is within the rules. He puts all the power of the Legislature and Judiciary into his own hands, at least in this one area of law. So where does that leave the checks and balances of our government, especially if Bush is allowed to get away with this and emboldened to expand the principle to other areas of law?
You don't believe the Framers would have allowed Congress to regulate domestic surveillance?
That seems rather strange to me. From my knowledge, I understand they wanted domestic policy decisions left up to Congress. I'm not aware of any "national security" exception.
Here we have a domestic policy decision which Congress has addressed. Sure, it implicates national security, but so what? Does it really interfere with the President's role as commander in chief of the armed forces as understood by our Constitutional framers?
I don't see how you read the Constitution and come away with the feeling that the President can do whatever he wants as long as it relates to "national security." To me, that sounds like a King. I'm pretty sure it would have sounded that way to our framers too.
the DOJ has not claimed that there is no venue for judicial review. It has bypassed judicial review for a warrant, and, a warrant in itself. the act of instructing DOJ members to not seek warrants, when there is case law and an argument to make that they are not needed, is not, in itself, some usurpation of congressional authority. Indeed, when the defense attorneys for the alleged al qaeda members bring this issue to a head, i am certain the DOJ will not argue that the judge has no jurisdiction on the matter.
This is the part of the whole thing that is maddening to me. The apologists almost universally assume the conclusion embodied in the bolded text. When you frame it that way, the argument flows to a degree - "well of course you have no reasonable expectation of privacy if you are a/communicating with terrorists." But not subjecting the initial determination to any sort of review creates a 'terrorist' exception which swallows the rule in one gulp. The "trust me, I'll get it right" argument just doesn't cut it.
Well, if this is a war, when does it end? When there is a peace accord?
You, apparently, would give the president unlimited war powers to ignore laws indefinitely within the United States. That's not quite how I read the Constitution.
Well, at least Marty Lederman is thinking this argument through a bit more than the last time he made it. A couple of days ago, he argued that it's "very telling" that DOJ (in the Moschella letter) didn't embrace the Article II theory in its defense of NSA program because the Article II theory was somehow preposterous. But, of course, it's not telling at all, since the Moschella letter had no reason to set forth the Article II theory, given that the actual theory set forth in the letter is that the warrantless surveillance is supported by Congressional action - the AUMF - and thus in Youngstown Category 1, rather than being contrary to Congressional action. And, since the warrantless surveillance is clearly legal in situations involving Youngstown Category 2 (and thus, also in Youngstown Category 1 situations), the only reason to take up the Article II theory is if the warrantless surveillance is in Youngstown Category 3 (i.e., contrary to to Congressional action).
At least now Lederman seems to acknowledge this fundamental fact. So he is reduced to arguing that DOJ ignored the Article II argument because it is "politically unpalatable". Well, duh. Is this a revelation? I mean, is it that shocking that DOJ would put out a letter to Congress saying, in effect, "Congress, we're doing something consistent with your authorization in the AUMF" rather than a letter saying "Congress, we can ignore you because the Constitution allows us to"? What politician (or, really, any person at all) wants to be told that they can be ignored? None. But for some incomprehensible reason, Lederman seems to think it "very telling" that the DOJ didn't want to say that in its letter.
Unnamed Co-Conspirator states that if this surveillance was truly a problem then Democrats would have protest and then claims they didn't. This is false.
Democrat Rockefeller has released his letter to the White House protesting this, which you can read here.
Nancy Pelosi has asked that her letter protesting this be declassified.
Tom Daschle has also said he protested and all three have stated they were given very sketchy information about the program.
They simply didn't protest PUBLICLY because the program was classified and that would have been breaking the law.
So lets stop with this the-Dems-didn't-protest argument as it's nonsense and beside the point anyway.
Also, I would not that it's a bit of a contradiction to argue for Congressional Oversite while claiming that Congress has no power to oversee the president in this area.
i'd only add that I find it interesting that all of a sudden conservatives are bending over backwards to cite precedent after precedent and invoke stare decisis.
I thought conservatives loathed stare decisis and precedent and said it doesn't matter.
Which is it?
Or does precedent only matter when it supports your opinion and not matter when it opposes it?
Also, let me add to what I wrote above about how DOJ is arguing that this is really a Youngstown Category ONE case, not a Category 3 case (which is the only time that the Article II argument would be heard), I think this is not only the best position politically vis-a-vis Congress, but it ALSO the best position at the Supreme Court.
I don't think the Supreme Court would ever decide the Article II argument, so Orin's prediction of an 8-1 ruling against it is irrelevant. In all likelihood, the Supreme Court would accept the Administration's argument that the AUMF authorized the surveillance (and thus that this is a Youngstown Category 1 case). It's a punt by the Supreme Court, to be sure. But a very easy punt. In essence, the Supreme Court is saying to Congress - if you REALLY think that Bush is ignoring the Legislative Branch, you solution is simple: pass a law (or even a resolution) withdrawing from the AUMF the authority to conduct this survaillance. Congress was unclear when it wrote the AUMF, and the President made a reasonable judgment that the ambiguity in the AUMF authorized his action. If that judgment is wrong, Congress can feel free to clarify the meaning of the AUMF at any time.
In it, you quote:
"President Bush and other top officials in his administration used the National Security Agency to secretly wiretap the home and office telephones and monitor private email accounts of members of the United Nations Security Council in early 2003 to determine how foreign delegates would vote on a U.N. resolution that paved the way for the U.S.-led war in Iraq, NSA documents show.
Two former NSA officials familiar with the agency's campaign to spy on U.N. members say then-National Security Adviser Condoleezza Rice authorized the plan at the request of President Bush, who wanted to know how delegates were going to vote. Rice did not immediately return a call for comment."
I don't get it. If this is true, why isn't there an uproar?
Orin Kerr, if this is true, what is your opinion on this and what should be done about it?
How can it be Category 1 when Section 1811 of FISA explicitly proihibts the action and Youngstown established that an implicit authorization (AUMF) does not override an explicit prohibition.
Because Hamdi changed everything.
The President's powers escalate during war. That is a factual analysis. Either we are at war or we are not. The only time that Congress has to declare war is when the war is an aggressive war, which is now illegal -- so the Declar War Clause is a dead-letter. We are now at war and the war is one of self-defense (remember 9/11?), so even if the Declare War Clause were not a dead-letter, it does not apply in this context. Thus, there is no problem.
Here's the statement of Orin's that I have the biggest problem with:
For example, I gather that some critics would say that limiting surveillance monitoring is more like blocking the President from seizing steel mills to avoid a wartime stoppage of much-needed steel production. The Supreme Court held that this power exceeded Article II in Youngstown Sheet &Tube v. Sawyer; why isn't this a better analogy?
The steel seizures at issue in Youngstown are a TERRIBLE analogy for the surveillance it issue presently. Every military that ever fought a war, from time immemorial, has conducted surveillance of its enemy (if that's an exaggeration, it probably only a slight one). Surveillance is AT THE VERY HEART of the concept of military action. Seizing domestic means of production is not even CLOSE to being at the heart of military action; it is peripheral at best.
It seems to me that Orin's argument is that the President as no authority AT ALL that is not subservient to Congress. And that seems to me to destroy the very idea of separation of powers. That is, if the Constitutional separation of powers means anything at all, then the President must have some independent power -- some power that Congress cannot regulate. If not here, then where? Does Orin think that there is ANYTHING AT ALL that the President does that Congress cannot regulate? If so, I'd like for him to explain which Presidential powers Congress can regulate and which Congress can't - and how he determines whether a Presidential power falls into one category or the other. And if Orin, on the other hand, thinks that Congress can regulate or prohibit everything the President may do, the I'd like Orin to tell us how he squares this with the concept of separation of powers.
It seems to me that those who argue that the conduct of foreign intelligence surveillance is solely the province of Congress - that the President cannot take any action at all in this area in the face of contradicting Congression action - are THEMSELVES setting up a dictatorship -- or, more acurately, an oligarchy. I think that separation of powers is a defining principle of our Constitution. And if it to mean anything, then the President must have some independent powers -- powers that Congress cannot interfere with. If conduct of something as central to war-fighting as surveillance is not something ceded to Presidential control, then the idea of separation of powers is dead in this country.
Hamdi did not address the scope of AUMF's implicit authority when there exists a statute which explcitly forbids an action.
Now explain to me how this is different from Congress passing a law that removes from the Supreme Court the authority to review laws passed by Congress for constitutionality.
In both cases Congress is using its Article I power:
The language of which seems to encompass the Supreme Court as much as it encompasses the President, in that neither is specifically mentioned, but can possibly be inferred.
So to paraphrase Orin:
I don't think that between FISA as AUMF, Congress was unclear at all, and I don't think the administration's statutory interpretation holds up.
But I acknowledge that you and I disagree on that. Those statutory arguments, pro and con, have been made here at length. My intention here is not to rehash them.
I do agree with you that if the Bush position on the statutes prevails, the Article II issue does not even arise as a legal matter to be decided.
The interesting part comes if that statutory position does not prevail. Logically, under the Youngstown framework, we would then be in Category 3. So within that framework, the case for Article II authority likely would fall with it.
The question is, under that scenario, would you and the President reject the Youngstown framework and argue that the will of Congress doesn't matter? That framework depends on the statutory-interpretation issue.
I do agree with your observation that Congress can clarify the statutory meaning either way, if it has the will. I fully expect some action in that regard when the Patriot Act renewal is debated next month.
If SCOTUS got this mess as a justiciable case tomorrow, I think the President would lose. But I can't see how the case would even get in the door.
It seems likely that Congress will act first. I don't know what it will do, and I don't know what Bush will do if he doesn't like the legislative outcome.
Youngstown established that an implicit authorization (AUMF) does not override an explicit prohibition
The Youngstown opinion states exactly the opposite:
So what? Brown did not address the 5th Amendment, yet we got Bollig v. Sharpe. Are you claiming that segregation is okay so long as contained to federal property?
In the infamous Bibee/John Yoo memo, Administration lawyers wrote:
Of course, our current situation is alot different than a Civil War. Plus, I suspect the context of this case doesn't support the view they are suggesting, which appears to be that any armed conflict puts the President beyond the reach of the judiciary in matters regarding the conduct of war.
Everyone should read the entire section V of this memo to get a feel for how this administration really thinks on these issues.
It's an amazing document in which they argue that Congress cannot regulate the interrogation of prisoners even though Article I expressly gives Congress the power to set rules for the capture of combatants.
My favorite is the argument that any power traditionally seen as an executive power is automatically granted to the executive unless explicitly given to Congress. Never mind that part of the Constitution that says that any power not enumerated goes to the states or the people.
A close second is the use of the "necessary and proper" clause to suggest support for expanded presidential power even though that clause is in Article I, the article providing Congressional powers.
I wouldn't "reject the Youngtown framework". I think that everyone accepts that the Youngstown framework, as set forth in Jackson's three categories, controls the analysis. The statutory analysis only determines which of the three Jackson categories we are in. And, as I've mentioned before, I think that the President should win even if the case fell in Jackson's Category 3. The reason is set forth more fully in my 7:52 post.
What I'm saying is that I would accept the framework of Youngstown, but I think the result in that case is distinguishable from this.
Why is the Youngstown framework legally relevent? Jackson laid out the framework in his concurrance that wasn't joined by anyother of the justices. Has it been adopted as the law of the land by any subsequent majority opinions?
That's not what the Constitution says, and that's not how the Supreme Court has interpreted it. See, e.g., Prize Cases.
One of George Washington's rare interventions in debate at the Constitutional Convention occurred when a delegate proposed that the size of the regular army be limited to 5,000 men. Washington proposed an amendment prohibiting enemies from invading "with a greater force."
Congress can withhold the money for a war. It can't prohibit a President from waging one.
Congress can prohibit use of information derived from warrantless electronic surveillance in criminal prosecutions. It can provide a civil remedy in damages for performance of warrantless electronic surveillance. It can try to withhold funds for warrantless electronic surveillance. It can't prohibit a President from performing warrantless electronic surveillance.
And it can't limit Presidential discretion in the means he uses to prosecute a war.
Making steel isn't at the heart of waging war? How do you wage war without steel?
How to conduct domestic surveillance is a domestic policy decision. These are decisions that Congress makes.
I think you're misconstruing the nature of our separation of powers. The executive does not get to flout Congress in making domestic policy decisions. Under our Constitution, there is very little that the executive can do when Congress explicitly tells it not to. That's how our system was designed, with King George firmly in mind.
Our Framers did not think that the executive knew better than Congress in matters of national security. They thought he was quicker and more efficient. Where Congress gets its act together and speaks, though, he is not free simply to ignore them indefinitely in secret. He is not free to overrule them. That is not his purpose.
I don't think "making steel" was the issue; rather, it was getting steel through the seizure of private property.
How to conduct domestic surveillance is a domestic policy decision.
But this isn't domestic surveillance. That was covered by Keith, right?
I think you're misconstruing the nature of our separation of powers. The executive does not get to flout Congress in making domestic policy decisions. Under our Constitution, there is very little that the executive can do when Congress explicitly tells it not to. That's how our system was designed, with King George firmly in mind.
Again, this isn't a domestic policy decision. I simply disagree with you that "there is very little that the executive can do when Congress explicitly tells it not to". I think that separation of powers, to be meaningful, must mean that there are certain things that the President is able to do regardless of what Congress thinks. And I think that essential war fighting activities (such as foreign surveillance) is one of those things.
I have reread that post, and I confess that I don't understand how it supports your argument that the President should win even in a Category 3. Could you recap that specifically?
I am not making the argument you imagine me to be making in your 7:42pm post. My point is not that no independent Article II authority exists; rather, I don't know what authority people are relying on when they claim that it exists and that it is broad enough to cover this. What cases would you cite for that?
Youngstown: It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.
The cases about which you inquire are all circuit cases, since SCOTUS never addressed the issue. And they are pre-FISA.
I have found the following law review article a useful guide to the legal history.
Couple of pertinent facts:
1. Surveillance has led directly to tactical operations in Southwest Asia, and in the United States. Al Qaeda figures have been killed or detained because of such intercepts, e.g. http://archives.cnn.com/2002/LAW/09/18/buffalo.terror.probe/
The principal reason Bin Laden was believed to be in Tora Bora was an intercept. A later intercept led officials to believe he was in Baluchistan. SIGINT may not be a direct assualt on a stronghold, but it is how we have been identifying strongholds to atatck and locations of people to kill or capture.
2. The United States is very much a theater of war in this war. It is still the location of the majority of our casualties. From a military point of view "domestic" merely means that the enemy is close to an attack where we are most vulnerable.
"For example, I gather that some critics would say that limiting surveillance monitoring is more like blocking the President from seizing steel mills to avoid a wartime stoppage of much-needed steel production. The Supreme Court held that this power exceeded Article II in Youngstown Sheet &Tube v. Sawyer; why isn't this a better analogy?"
Differences from the Youngstown Steel case:
1. We are in a congressionally declared state of war (yes, the resolution is a declaration of war). Such was not the case in Korea. In Youngstown the solicitor general specifically disavowed relying on the President's power during war time, a fact the court found distinguished it from seizures by President Roosevelt during WWII:
The President's Article II power is different when at war than when at peace.
2. Congress's power concerning the army specifically includes its supply ("raise and support armies:, "creat and maintain a Navy") . Youngstown is about supplying the war effort, and thus much more about a Congressional power during war rather than being about an executive military function.. Surveillance is SIGINT -- an inherent part of military operations, like reconnaissance or screening.
3. In Youngstown the court found it pertinent that the seizure was not in a war zone. The US in this war with Al Qaeda and its ilk is in the war zone.
Hmmmm:
Oh. That's different . . . .
john shinkle
Sen. John Cornyn (R-Texas), left, Rep. Jim DeMint (R-S.C.), center, and Sen. Wayne Allard (R-Colo.), supporters of a constitutional ban of gay marriage, await a press briefing in Russell Park after yesterday’s vote.
Brown and Bolling were decided on Constitutional considerations. In contrast, Hamdi is statutory analysis. There is nothing in Brown nor Bolling that even remotely suggests Hamdi's statutory analysis (implied authorization applies where no explicit prohibition exists) requires implied authorization to supercede an explicit prohibition.
Moreover, Youngstown says the explicit prohibition supercedes the implied authority - and Hamdi did not overrule Youngstown.
And this:
And this:
But I also don't think it matters, since I think it is clear in the Constitution that Congress can regulate core military activities.
>I don't think "making steel" was the issue; rather, it was getting steel through the seizure of private property. <
Kind of like the issue here is not whether the President can gather information, but rather whether he can conduct warrantless searches of United States citizens? You must see the transparency of your distinction here.
>But this isn't domestic surveillance. That was covered by Keith, right?<
Really? Keith seems to suggest that there could be an issue regarding foreign surveillance, without explaining at all... is that the best you can offer?
It looks to me like you're hiding behind dicta where it's convenient, and ignoring precedent everywhere else. My question is whether as a fundamental matter you really think our Framers would not have allowed Congress to address this issue. I would ask, like Prof. Kerr, what exactly you point to when you assert this. I'm less concerned with offhand comments by the Supreme Court, though, than where you actually find this in the Constitution.
>I think that separation of powers, to be meaningful, must mean that there are certain things that the President is able to do regardless of what Congress thinks.<
Do you also think the Judiciary must have this kind of power in order for our separation of powers to be meaningful?
I'd like to see a better historian than myself weigh in on this issue, because I think this is really at the heart of the disagreement. It seems to be a last stand for those who want to defend the President, and it needs to be debunked.
I know about the Fourth Amendment circuit court cases pre-FISA; as I explained in my first post on this issue last week, those cases don't go very far on the Article II issue, as they are Fourth Amendment decisions on the warrant requirement. Where are the Article II cases?
I thought these cases touched on both Article II and the Fourth Amendment, since by definition there could be no presidential authority except for Article II or legislation.
In any event, I think these cases, plus the dictum in Sealed Case, are all there is.
>But I also don't think it matters, since I think it is clear in the Constitution that Congress can regulate core military activities.<
Absolutely.
The DOJ letter makes a similar claim, citing the recent Hamdi decision as an on-point analogy demonstrating that the AUMF should be construed to authorize such surveillance. It cites the language of the Hamdi opinion in that regard:
But when you follow the Hamdi precedent more closely, the trail leads right back to Youngstown! See what O'Connor's opinion in Hamdi also said:
The administration argument that "Communications intelligence targeted at the enemy is a fundamental incident of the use of military force" is thus no argument for unilateral powers by the executive.
On Hamdi, I've said this repeatedly. Professor Sunstein cites Hamdi as supporting Bush's position when in fact, as you point out, it utterly debunks Bush's position.
Professor Sunstein seemed not ot have read the entire opinion.
On the issue of history, others have quoted Hamilton's Federalist #69, but it may be worth quoting it again. I might note as an aside that Hamilton was hardly opposed to a strong executive in general.
Anyway, he writes:
"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."
This passage simply confirms what the structure and text of the Constitution already strongly implied: the division of powers between the Congress and the President in war is not one of subject matter. Rather, the division of powers is the same basic one which runs throughout the Constitution: the President is an executive officer with a power to issue specific directions, and the Congress is a legislature with the power to issue general regulations.
So, in my view the question is not whether surveillance is more central to war than procurement (as if such a question even made sense). Rather, the question is whether FISA is a general regulation, or whether it is a specific order directing the military to do some particular thing.
And the obvious answer is that FISA is a general regulation, not a particular order. Which I think is the end of the inquiry.
Ha! I had just copied that passage to paste in here on my own. Decided to become my own historian and google "executive power federalist papers."
"First General and admiral of the confederacy." Which of course, is entirely consistent with the idea of an executive, as opposed to the legislative branch.
Of course, the President does have legislative power, through the veto power, etc. The idea that he can simply ignore Congress, though, on the ground of "national security," when Congress has passed a law directly on point? Even Hamilton would have blushed.
It's a clever argument but misconstrues the nature of our government. What makes the checks and balances work is the fact that NONE of the three branches of government have powers completely independent of each other.
Congress can pass laws but without the President's signature and his execution of the laws as well as the judicial branch's recognition of those laws, they will not go into effect.
The President can negotiate treaties and appoint justices, but without Congressional action the treaties and appointments have no effect.
The judicial branch can review the Constitutionality of laws, but as the Court has long been aware, it cannot enforce it's rulings without at least one of the other branches.
There are many other examples.
Our forefathers create ONE government with the powers of that government divided into three branches NOT three independent governments that check each other's power.
Because each branch of government needs the other to get anything done, they are forced to listen to each other, to work to establish consensus before acting, to deliberate and debate and to respect each other's peragotives. This makes action and decision-making slow, but that is how our Forefathers believed it should be because decisions made as the result of deliberation and debate, which hones everyone's thinking the way this forum is honing all of our thoughts, makes for better law and better decisions.
Just think about how much better the planning and decision making might have been if there had been more deliberation and debate before the Iraq war.
So the Constitution's division of power favors deliberation and that should be our preference except where quick action is necessary such as in time of war. That's why the Commander-In-Chief power exists because sometimes quick action is needed and in that circumstance the President must have the authority to act.
But under Article I, Section 8, giving Congress the authority to regulate the armed forces, Congress can set the rules, the parameters or what we might call the framework under which the President acts. And that framework can include limits so long as those limits don't have the effect of eliminating the President's power.
No one here is arguing that Congress can tell the president where to concentrate our forces or dictate the battle plan. No one is saying that Congress has the right to decide what assignments CIA agents or NSA staff are given.
But there's no evidence that that is the case here. The FISA court allows warrants to be issued retroactively 72-hours after placing a wiretap. Thousands of wiretaps have been allowed in the past under FISA.
If a branch of government can act independently of the other branches then that means there is no check on its power. Separation of Powers requires dependence.
Indeed, and the President also has available the less heralded, but more often used, Recommendations Clause. In this particular case, in fact, I'd say that was the obvious remedy to any perceived defects in FISA: the President could recommend such changes as he thought necessary and expedient.
I'm glad you bit on that. So if you think, like I do, that Congress does not have the power to redefine the Supreme Courts Article III power via statute then you would have to agree Congress can not redefine the President's Article II powers via statute, wouldn't you?
I don't see any difference.
As for the rest of the federal courts I think Congress can do whatever it wishes with them, as they were created by acts of Congress. For instance Congress could make itself the Court of last appeal for decisions made by the Federal Courts and restrict the Supreme Court to matters where it has original jurisdiction. I mean it could do that constitutionally, not that it would be a good idea.
But regulating the conduct of the armed forces (or NSA) does not redefine the President's Article II powers in any constitutional sense.
In his summary at the end, after offering all the different reasons why Americans should not fear that they were creating another King George, Hamilton states:
So there you have it, what the power of the President was sold as.
Of course, Hamilton may stress the limits, but I'd hardly call it nothing to speak of. Imagine, though, if Hamilton had added at the end: "Finally, the president has the unchecked power to act in protection of our national security without regard for anything else in the Constitution or set forth by Congress." I bet that would have gone over!
Congress is responsible for declaring war, raising and supporting the army, governing and regulating it (the last clause I think generally interpreted as extending to military law and ranks, authority, and personnel)
The President is responsible for operations (the conduct of campaigns in the old verbiage, strategy and tactics, command and control).
One need only determine where electronic surveillance falls. If its purpose is principally criminal in scope (arrest people about to commit crimes) I have little trouble saying it is Congress' baliwick. If its purpose is principally military (identify and find the enemy, determine and frustrate his plans) then it would seem to be within the President's bailiwick.
Obviously it can be either depending on the precise circumstance, and, even then, stay a stubborn blend.
I find myself in agreement with Marcus1 and Medis; our framers did not contemplate setting up another King. Very much the opposite is true. The legislature is first among equals in our system, and the executive has very limited powers.
Marcus1's earlier question is begging to be answered. WHEN DOES IT END? I can understand some of you wanting the enhanced security that granting our President these expansive powers in time of war (however imperfectly declared) provides. So when can US citizens no longer be imprisoned indefinitely on only the whim of the executive; when do these surveillance powers that clearly violate FISA's provisions wane?
My answer: it's never going to end. The threat of terrorism as it's defined by our President is going to continue forever. That's what's bothering me. How can we give up our cherished freedoms so meekly?
So can Congress ban the President's use of torture in foreign countries?
I think we can can use Jackson's Youngstown Framework as a useful way to look at the problem if we like, but the Administration is perfectly free to ignore it because it has no force of law or precedent. The Youngstown Framework was not part of a majority decision, nor, as far as I know, has it been incorporated into any subsequent decisions as to give it any force of law.
"So, in my view the question is not whether surveillance is more central to war than procurement (as if such a question even made sense). Rather, the question is whether FISA is a general regulation, or whether it is a specific order directing the military to do some particular thing.
And the obvious answer is that FISA is a general regulation, not a particular order. Which I think is the end of the inquiry."
Would a law in the Civil War directing Lincoln not to use artillery on occupied towns be a general regulation or a particular order?
How about one directing him not to apply his blockade of southern ports to ships owned by "English persons" unless he first obtains a court determination that they are likely to be carrying contraband?
No. I think it is clear that Congress CAN regulate the jurisdiction of the inferior Article III courts SO LONG AS it does not disturb the Supreme Court's exclusive judicial power.
What does that mean? The Congress can not strip the Supreme Court of jurisdiction. And what does THAT mean? It mean it can eliminate INFERIOR federal courts if it so chooses BUT it can not interfere with the Supreme Court's ability to hear cases that come from the state courts nor can it interfere with the Supreme Court's original jurisdiction.
What other restrictions limit Congress' power in this area? The requirements of due process. For example, where can federal prosecutors prosecute violations of federal law? No federal courts? Well guess what? Then no federal crimes.
What of the Bill of Rights? Where does a citizen go for recourse? The state courts. And if they do not provide remedies, then Congress must provide due process. Without due process, the Congress is unable to much that it does. Without courts, where are its laws enforced? Without courts, how does the Executive enforce the laws Congress enacts. Remember, only the Judiciary has the power to adjudicate. this power is expressly denied the Legislative and Executive branches.
I always get a chuckle when I hear folks argue that Congress and the President have the power to interpret laws and the Constitution. My answer? Oh really? When the Constitution vests all judicial power in the Supreme Court? How?
Now, you might ask, since Congress cannot interfere with the Supreme Court's judicial power, how is it that it can interfere with the President's Commander-in-Chief power? Very simple. The Supreme Court has UNFETTERED and EXCLUSIVE judicial power. The President does not have unfettered and exclusive power over the military and foreign affairs.
Article II says:
Article I, Section 7 says:
Article I, Section 8 says:
The Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States
. . . To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
. . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
To complete the picture, Article III says:
It is a beautiful structure of checks and balances. The President can NOT exercise legislative authority but he can CHECK the exercise of such authority by the Congress through the veto power.
The Congress can NOT exercise executive authority but it can regulate and LIMIT the exercise of executive authority by the President, including his Commander in Chief powers, by legislating. Such legislation must be "faithfully executed by the President."
Neither the President nor the Congress can exercise the Judicial power, but through the power of appointment and confirmation, the Executive and Legislative Branches have strong influences on the character of the judiciary without interfering with its functional independence.
Those Founders were pretty smart cookies.
I'll answer your hypo if you'll answer mine a few posts above, which seems much more likely.
Could Congress ban the use of artilery? Sure, why not? I suppose it would depend on what they were trying to do. If they thought they could better run the specific strategy, then maybe the President would be justified in ignoring them. If they had some broader purpose for not using artilery on a particular city, though?
I think the answer under the Constitution is that, if it's a specific strategic question, the President may be justified in ignoring Congress. If there is a general policy question, though, it seems that it has to be up to Congress.
How about whether or not to invade a particular city? Could Congress tell the president what to do? It seems fairly obvious to me that where Congress weighs in, it must have the power to tell the President almost anything. The power of the President, and the limit of Congress, is that Congress isn't capable of saying everything.
I see a danger here of a pretty long tangent though...