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Precedents on Inherent Authority:
I've been watching parts of the Gonzales hearings this morning, and find it a bit frustrating that Gonzales seems to me mixing up two different kinds of claims concerning "inherent authority" to conduct surveillance. The first kind of inherent authority is inherent in the sense that Congress does not need to create it for it to exist; the power exists even before Congress grants it. The second kind of inherent authority is inherent in the sense that Congress cannot extinguish it; the power exists even after Congress tries to take it away. It is true that there are a number of past precedents on the first type of inherent authority, but there is very little on the second type. My understanding is that Gonzales is using "inherent authority" in the second sense, but I don't think it's particularly helpful to cite precedents on the first type of inherent authority to support a claim of the second type of inherent authority.

  UPDATE: Commenters question whether such a distinction exists, and want some examples. Justice Jackson's Youngstown concurrence explains the basic categories; I trust many readers will be familiar with them. Readers may be less familar with a particularly relevant example, traditional Fourth Amendment search and seizure law. Congress didn't pass a statute regulating federal search and seizures until 1917, when it passed the Espionage Act of 1917. Federal agents had been executing searches and obtaining warrants for over 100 years up to that point without any explicit statutory authorization; such powers were considered part of the inherent authority of the executive branch. Starting in 1917, however, Congress explicitly authorized federal search warrants to be issued, and included explicit statutory limits on their use. In the last 90 years, Congress has often passed laws regulating the warrant process beyond Fourth Amendment limits, ranging from the Wiretap Act of 1968 to the Patriot Act of 2001. I don't think anyone has argued that the executive branch's inherent authority to conduct warrantless searches and obtain warrants before the Espionage Act of 1917 means that Congress lacks the power to impose restrictions on the warrant process and domestic searches and seizures. Inherent authority absent statutory authorization is different from inherent authority in the face of statutory prohibition.
Chico's Bail Bonds (mail):
I don't quite see the use of that distinction. Are there any types of authority that fall in one category, but not the other?
2.6.2006 11:17am
billb:
I echo Chico's concern. Can you give examples of both cases?
2.6.2006 11:20am
Justin (mail):
Orin, I think you're under the misguided impression that Gonzales is making a "legal argument." He isn't. He's making a "political argument." What the White House is trying to do is simply make an official-sounding explanation for their ideas so they can get the media to say "there's no real right answer, it depends" and to create enough doubt to politically excuse the behavior of the executive.

As a political strategy, I think it will be effective. I'm unsure about what the long-term costs are to the Constitution, but this seems to be an area of concern that consistently escapes the White House.
2.6.2006 11:20am
Justin (mail):
Think Steel Seizure boundaries. What is the President's power when Congress hasn't spoke vs. What is the President's power when Congress has specifically spoken against a practice - that's the difference Kerr is discussing.
2.6.2006 11:21am
Medis:
Chico,

That distinction is crucial to understanding Jackson's Youngstown framework. Keep in mind that there are three categories. About Category 2, Jackson writes:

"When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers . . . ."

"Inherent powers" in Orin's first sense are the sorts of "independent powers" in Jackson's sense--powers that the President can exercise even when he has not been granted that power by statute.

But about Category 3, Jackson writes:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

So, this notion of subtracting congressional power from independent presidential power to derive some remainder implicitly assumes that "independent" presidential powers ("inherent powers" in Orin's first sense) are not necessarily "exclusive" powers (meaning that Congress cannot limit the use of such powers). And that is "inherent power" in Orin's second sense.

It seems to me we should dump the phrase "inherent power" entirely if it is leading to this confusion. But it seems to me it should be enough to point out that inherent powers are not necessarily exclusive powers.
2.6.2006 11:29am
Jack John (mail):
Medis is wrong. Conceptually, inherent executive powers are exclusive: the presidential pardon and the presidential veto. Also, the power to set law aside in emergencies. Read John Locke's Second Treatise on Government.

I would also note that Hamdi is predecent; Jackson's concurrence is a hepful framework that is not law.
2.6.2006 11:34am
Eric Muller (www):
The first kind of inherent authority is, say, the Commander-in-Chief power, or the power to take care that the laws are executed: the President has got them, but that doesn't mean that Congress can't pass legislation that in some way shapes the President's exercise of them.

The second kind is, say, the power to make a State of the Union Address. If Congress passed a law saying "from here on out, the President shall not waste our time any longer with that boring SOTU speech," the President would still have the power to do it b/c the Constitution states that he does.

These are silly examples, but I think they illustrate what Orin's talking about.
2.6.2006 11:35am
Eric Muller (www):
Orin, you criticize the AG for not being particularly "helpful" in a distinction he's drawing before the Senate Judiciary Committee.

What leads you to think that his goal is to be "helpful?"
2.6.2006 11:36am
minnie:
I am still in a state of shock that the Republicans refused to have Gonzales testify under oath. So much for JaO's optimism that Specter would be impartial.
2.6.2006 11:43am
minnie:
Kyl implies that what the Republicans will now seek is the right to eavesdrop on purely domestic communications without warrants. On my. It's not Big Brother around the bend. It's King Kong.
2.6.2006 11:48am
duh! (mail):
I'll say one thing, you have to love "libertarians" (tm) like Jack John above.

We are supposed to read Locke's 2nd Treatise to "understand" like he does, but Jackson's concurrence is not "law"....

Makes perfect sense!
2.6.2006 12:03pm
A.S.:
The first kind of inherent authority is, say, the Commander-in-Chief power, or the power to take care that the laws are executed: the President has got them, but that doesn't mean that Congress can't pass legislation that in some way shapes the President's exercise of them.

The second kind is, say, the power to make a State of the Union Address. If Congress passed a law saying "from here on out, the President shall not waste our time any longer with that boring SOTU speech," the President would still have the power to do it b/c the Constitution states that he does.


How does one tell if something mentioned in the Constitution is of the first kind or the second kind? That is, why does Eric think that Congress can "pass legislation that in some way shapes" the President's exercise of the Commander in Chief power but not the SOTU speech power? Why does he think that the President would still have the SOTU speech power "b/c the Constitution states that he does" but he wouldn't have the Commander in Chief power? Doesn the Constitution ALSO "state[] that he does" have the Commander in Chief power too?

Seems to me that Eric is simply making this up as he goes along, no? After all, no court has ever said that the President can always give a SOTU. Likewise, has a court ever said that Congress can completely regulate the Commander in Cheif power? I don't think so.
2.6.2006 12:09pm
William Spieler (mail) (www):
duh!: Concurrences are definitionally not binding precedent.
2.6.2006 12:16pm
Medis:
Incidentally, I believe that making agreements with foreign nations is the other most prominent example of an inherent but not exclusive presidential power. In other words, the President can enter "executive agreements" with foreign nations even without prior authorization by Congress and without ratification through the formal treaty process, and these executive agreements can actually supercede state law (see Belmont and Pink). But in Dames &Moore, the Court implied that such executive agreements would be subject to the basic dynamic of Jackson's Youngstown framework.

So, presumably the President's unauthorized and unratified executive agreements would be subject to Youngstown Category 3 analysis if Congress passed a contrary law--although the Court explicitly did not reach this issue in Dames &Moore because it found that the provisions of the executive agreement in question, and the executive actions taken pursuant to it, fell either into Category 1 or Category 2.
2.6.2006 12:21pm
Jack John (mail):
1. I am not a libertarian.
2. The Framers relied on John Locke's Second Treatise on Government in drafting the Constitution. Had you read it, you see it explicitly discusses pardons and vetoes and emergency powers, in the same section. The pardon and the veto are explicitly in the Constitution, and there is a strong argument that the emergency powers part is what the Framers meant by vesting the executive power exclusively in the President. This is not a far-reaching or speculative argument, by strong, I mean it is akin to this argument: the Framers intended the Due Process Clause to incorporate (if not amplify) the guarantees of the Magna Carta because the Framers read the Magna Carta during the Framing and the text of section 39 of the Magna Carta is IDENTICAL to the text of the Due Process Clause.
3. The Framers did not rely on Jackson's concurrence, nor is it precedent.
2.6.2006 12:21pm
Kovarsky (mail):
I haven't been watching this morning, but I'd also point out a third way in which the term inherent authority has been used over the last couple of weeks - to refer to something almost extra-constitutional, that exists in the presidents authority as commander in chief (which of course happens to flow from the constitution, but never mind consistency), which would allow him to do things that would otherwise be unconstitutional. maybe this is what prof. kerr means by his type 2, though, since exercise of executive authority where congress has expressly forbidden it would be unconstitutional, althugh the type of "inherhent" authority i'm talking about here, i'm talking about the inherent authority to trench upon more substantive type protections, such as the 4th amendment, than procedural rules, such as the separation of powers.

any way you slice it, king kong it is.
2.6.2006 12:22pm
Jack John (mail):
Medis: Incidentally, I believe that making agreements with foreign nations is the other most prominent example of an inherent but not exclusive presidential power.

This is wrong. The President has the exclusive power to make executive agreements. The Senate and President share the power to ratify treaties. The latter power is shared, the former power is exclusive. You are conflating two things. That treaties can override executive agreements does nothing to help along your feeble argument; constitutional amendments can override treaties, but that doesn't mean that Senate shares its treaty-making power with the States or with the House.
2.6.2006 12:27pm
Bruce Hayden (mail) (www):
I would agree with Eric when he asks: 'What leads you to think that his goal is to be "helpful?"' Rather, I see his goal as to make the case that the survailence is necessary for the defense of the American people, without giving away too much of how it works.

And that has to be remembered. To some extent, the Administration is operating here at a disadvantage. It really can't divulge all the operational aspects of the NSA program without letting the enemy know how to get around it. Also, it is classified, which means that the AG can't legally divulge these details in open session (and probably couldn't in closed session either, given that it is probably classified above the security clearances of some there - what sort of security clearance do you think Ted Kennedy would qualify for, given his well known alcohol problem?)
2.6.2006 12:34pm
Medis:
A.S.,

In addition to any cases on the issue, one obvious starting point to answer such questions would be to look to the normal primary sources of constitutional interpretation. One such source is the actual text of the relevant provision, perhaps as supplemented by various definitional tools (eg, contemporaneous dictionaries, documents using the same phrase, statements in the Federalist papers, and so on). Another such source is the rest of the Constitution--eg, we can ask if a proposed interpretation of a provision is consistent with the text of other provisions, the general structure of the Constitution, and so on. We can also look to history--how were the relevant provisions interpreted and applied at the time? And so on.

For example, with respect to the Commander in Chief power, the actual text says: "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." This text, and particularly the way in which it deals with State militias, implies that it is primarily about the President's organizational relationship to the armed forces.

We can supplement this text with Federalist 69, where Hamilton writes:

"First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. . . . Second. 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."

So, Hamilton also interprets this provision as only making the President "first General and admiral".

Of course, as Hamilton notes, this interpretation is supplemented--and, indeed, required--by the various explicit grants of military lawmaking power to Congress in Article I. We can then go on to see how the First Congress exercised those powers (for example, by looking to the contemporaneous Articles of War).

And so on.
2.6.2006 12:38pm
Justin (mail):
Bruce Hayden, And then what security clearance do we give President Bush?

In all seriousness, shouldn't we stick to the real issues instead of personal attacks that are entirely irrelevant to the issue at hand? The one part of Bruce's argument that was serious was whether Bush is intentionally avoiding revealing certain "exculpatory evidence", but I'm struggling to see how this is relevant - in a system that has allowed signficant (and deferential) ways to allow the President to assert what Mr. Hayden claims may be true exists, and it seems the real argument Mr. Hayden claims to make is there can never be any review (public or private) of Presidential action when the "c" word is invoked, regardless. This seems clearly inconsistent with the concept of seperation of powers.
2.6.2006 12:39pm
Just an Observer:
In distinguishing between "inherent" and "exclusive" authority of the executive, it is useful to look at what Justice Jackson said in his description of his Category 3: "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject." (my emphasis)

So in order to uphold the exclusive domain of the executive in this case, a court would have to find FISA unconstitutional, at least as applied.

The administration has tiptoed into that argument, but its argument is circular: It holds that if FISA conflicts with the President's excercise of "inherent" executive power, it must be unconstitutional. But the mere existence of such conflict only restates the tautology that the situation falls within Category 3.

The argument fails to explain why the enactment of such regulation Congress positively exceeds its own Article I power, or to rebut the claim that the FISA rests on such congressional authority.

All of the above is a roundabout way to say what Prof. Kerr stated succinctly in his posting: "Inherent authority absent statutory authorization is different from inherent authority in the face of statutory prohibition."

Gonzales' circular argument is quite sufficient for blowing smoke in a political forum. I am confident that it would be insufficient to prevail in court.
2.6.2006 12:40pm
minnie:
Reading some of the blogs, I see others have picked up on the same thing I have: an unusual repetition by AG of the phrase "the program I am talking about." Is there some "other program" that we haven't heard about, that has not been leaked to the press, that is also outside the law?

BTW, AG almost fell apart on the "domestic to domestic" question. Strange. Looks like he got a note from a staffer telling him he had to change his words about that.
2.6.2006 12:42pm
Medis:
Orin,

Thanks for the update and the interesting (and highly relevant) example.
2.6.2006 12:44pm
OrinKerr:
Minnie,

I had the same thought. I plan to blog about this later today.
2.6.2006 12:45pm
Jack John (mail):
I would note that Hamilton argued for expansive Executive powers in the context of foreign affairs in the Helveticus-Pacificus debate. Someone here is distoring Hamilton's positions, but I won't say who.
2.6.2006 12:52pm
dimitrir:
sorry, i'm not a lawyer, but it seems that what Gonzalez is saying is that (A) FISA provisions apply except when exempt by statute, and (B) AUMF is such statute. Therefore the wiretap program discussed does not fall under FISA. Many other activities fall under FISA and then the FISA process is utilized.
2.6.2006 12:57pm
Jack John (mail):
Prof. Kerr: I don't think anyone has argued that the executive branch's inherent authority to conduct warrantless searches and obtain warrants before the Espionage Act of 1917 means that Congress lacks the power to impose restrictions on the warrant process and domestic searches and seizures.
Nice try, Orin, but your example doesn't suggest that Congress has any authority to regulate warrantless searches within the President's inherent authority. Such an argument, I think, would run afoul of Klein, which repreimands Congress for trying to condition -- through legislating rules of evidence in courts of law, which Congress generally has the power to do -- the President's exercise of a pardon. If the power the President is asserting is functionally equivalent to the pardon power (see Locke's 2nd Treatise of Government), then Klein should apply here.
2.6.2006 12:58pm
bcnd:
What is it that all of you do that allows you to sit around and watch the AG talk to congress on a Monday afternoon? Are there any openings at your place of employment??
2.6.2006 1:01pm
Jack John (mail):
I work for the DOJ, and my boss is out today.
2.6.2006 1:01pm
bcnd:
touché Jack.
2.6.2006 1:04pm
Medis:
dimitrir,

The problem with that argument is that there is a statute which specifically says that the procedures in FISA and Title III are the "exclusive means" by which electronic surveillance within the meaning of FISA can be conducted. Of course, this provision could be repealed by Congress, but until they have done so AG's premise is wrong.
2.6.2006 1:20pm
dimitrir:
Medis,

How do you apply a statute that says "X is the exclusive means by which the statute is to be applied, except when exempt by another statute." Forgive me if I'm misquoting FISA, I have not read it, but I think that is how I heard Gonzalez quote it.
2.6.2006 1:44pm
Kovarsky (mail):
dimitrir,

it means that other statutes may exempt the proscribed behavior (warrantless taps), so that FISA need not be amended each time.

the issue is whether the AUMF constitutes such a statute, and the overwhelming legal consensus is that it does not.

Lee
2.6.2006 1:54pm
Medis:
dimitrir,

Here is the relevant statute (18 USC 2511(2)(f)), with the last bit being the most relevant:

"Nothing contained in this chapter or chapter 121, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire and oral communications may be conducted."

There is no such exception in this statute.

Gonzales is trying to imply such an exception into this statute by reference to a different provision, 50 USC 1809(a)(1), which provides:

"Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute . . . ."

Gonzales is basically arguing that because this different provision, 1809(a)(1), doesn't mention a specific statute, there is also an exception in the first statute, 2511(2)(f), for any other statute. Of course, as you point out, that is pretty ridiculous--why would a statute say X and Y are the exclusive means, except when they are not?

But, of course, that isn't what the statute actually says. It says X and Y are the exclusive means. And contrary to what Gonzales is claiming, 1809(a) does not in fact imply an exception into 2511(2)(f). To understand why is not a trick: 2511(2)(f) refers to the "procedures" in FISA, and 1809(a) is not a "procedure" in FISA.
2.6.2006 1:56pm
duh! (mail):
Keep fighting Jack John, one day you'll win your battle and the National Bank will fall, slavery will come back, and you can go back crapping in an outhouse-- Just as the founders (or at least the "founders" that you like to quote for one particular purpose... but maybe not another) lived so shall we!!

(although I'm not sure where Locke came down on wastewater treatment, and certainly as he was an influence to certain founders we'd want to know)
2.6.2006 2:00pm
Kovarsky (mail):
Medis,

I don't read 2511(2)(f) as providing a statutory exception so much as it provides a clarification that foreign-to-foreign and foreign to domestic communications continue to be governed by whatever law governs them. fisa, on the other hand, only addresses calls originating in the united states.
2.6.2006 2:03pm
OrinKerr:
Jack John,

I'm afraid I don't follow your argument. Can you explain a bit more?
2.6.2006 2:05pm
Jack John (mail):
I'm pro-slavery because I cited Klein? That's crazy. I'm a black person, you idiot.
2.6.2006 2:05pm
Medis:
Kovarsky,

I'm not quite sure I followed your post. But I might note that the two references to "electronic surveillance, as defined in section 101 of [FISA]" in 2511(2)(f) are very important. "Electronic surveillance" as defined by FISA isn't a generic descriptive term--it refers only to a limited subset of surveillance, and the scope of the definition depends on factors such as whether and how a US person is involved, where the intercept occurs, the kind of communication, and so on.

So, I think I agree with your essential claim: 2511(2)(f) just says that procedures in FISA and Title III provide the exclusive means for doing those particular kinds of surveillance, but it explicitly does not restrict other kinds of surveillance. But, of course, the Administration has stipulated that the program involves, at least in part, electronic surveillance within the meaning of FISA.
2.6.2006 2:15pm
Jack John (mail):
Orin:

1. Sorry if the cross-post makes it look like I insulted you. Unintended.

2. I take your argument to mean that where the President has the inherent authority to conduct warranted searches, Congress can step in and condition the terms of those warrants. I do not think that applies to inherent power to conduct warrantless searches, because (1) there is nothing to condition: Congress is not defining the application of the 4th Amendment, because if they are constitutionally valid warrantless searches, the 4th Amendment does not apply; or (2) if there is something to condition, Congress can't condition it, because it is exclusively executive power. That is what Klein says; the operation of the presidential pardon cannot be conditioned by Congress; it is exclusively executive. Now, if you go to Locke's 2nd Treatise of Government, in the same sections he's discussing the presidential veto and the pardon, he's talking about the executive's unreviewable power to set aside the law when it's necessary to protect the people -- and it is considered functionally the same as the pardon power and the veto power. I see no reason why the same argument from Klein would not apply -- Congress can't condition the exercise of this power, because it is an purely executive power to set aside the law precisely when the rigid application law would be unjust or cause harm to the people. (I would note that Klein dealt with pardoning Confederate sympathizers in the wake of the Civil War. One can imagine that stoking resentment might lead to a resurgence of violence or otherwise harm the rebuilding of the Union.)
2.6.2006 2:15pm
A.S.:
and 1809(a) is not a "procedure" in FISA

Why not?

Seems to me that the procedures are (a) get a FISA warrant or (b) do it as authorized by another statute.
2.6.2006 2:17pm
duh! (mail):
Not saying you are pro-slavery, I'm saying the some of the same Framers you hero worship did!

Although your omission means (i guess, as I have no evidence to the contrary) that you are pro-outhouse!!!
2.6.2006 2:19pm
duh! (mail):
did= were,
2.6.2006 2:20pm
Anderson (mail) (www):
I don't think anyone has argued that the executive branch's inherent authority to conduct warrantless searches and obtain warrants before the Espionage Act of 1917 means that Congress lacks the power to impose restrictions on the warrant process and domestic searches and seizures.

Not yet, anyway, but we would scarcely be surprised to see it at this point.

And obviously, JackJohn is the nom de guerre of VC lurker Clarence Thomas, so that's at least one vote for the Administration.
2.6.2006 2:21pm
Kovarsky (mail):
Medis,

I think we're saying the same thing - I think I misread wherever I originally entered the thread and I took you to be imply that there was a delineated exception in 2511.
2.6.2006 2:21pm
Omar Bradley (mail):
Gee,

The founders took both sides if an issue depending on the political winds, who would have thought?

So much for the idea that that there is some "original understanding" we can find. If Hamilton, Madison et al equivocated and shifted their positions based on the political issue at hand, how can we ever know what the real menaing is. And if Publius himself thought it was ok to base his constitutional interpretation based on his desired outcome, who are we to complain? I love how conservatives parrot this sovereign immunity doctrine when it flies in the face of opinions like Chisolm v Georgia and the words of Hamilton who said that to be against Chisolm[and for Hans and Seminole]is "opposition to the Constitution". But I guess Nino and Rehnwuist know more about the Concstitution than Jay, Hamilton, Wilson, Patterson, Blair, Cushing, Marshall, and Story.

As for Gonzo, I found a few things noteworthy:
1. FISA is irrelevant to the WH. Gonzo admitted that even under Category 3, the program is legal due to the President's inherent authority.

2. Congress has no power to stop the program. NONE. See Above.

3. The only way to stop it is a)cut off funding for the war or b)for the SCOTUS to step in

4. The whole argument boils down to inherent authority and a John Yoo argument.

5. There is no effective limit to the President's authority
2.6.2006 2:21pm
Jack John (mail):
Of Prerogative
159. WHERE the legislative and executive power are in distinct hands, as they are in all moderated monarchies and well-framed governments, there the good of the society requires that several things should be left to the discretion of him that has the executive power. For the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of Nature a right to make use of it for the good of the society, in many cases where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it; nay, many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require; nay, it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of Nature and government- viz., that as much as may be all the members of the society are to be preserved. For since many accidents may happen wherein a strict and rigid observation of the laws may do harm, as not to pull down an innocent man's house to stop the fire when the next to it is burning; and a man may come sometimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon; it is fit the ruler should have a power in many cases to mitigate the severity of the law, and pardon some offenders, since the end of government being the preservation of all as much as may be, even the guilty are to be spared where it can prove no prejudice to the innocent.
160. This power to act according to discretion for the public good, without the prescription of the law and sometimes even against it, is that which is called prerogative; for since in some governments the law-making power is not always in being and is usually too numerous, and so too slow for the dispatch requisite to execution, and because, also, it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigour on all occasions and upon all persons that may come in their way, therefore there is a latitude left to the executive power to do many things of choice which the laws do not prescribe.
161. This power, whilst employed for the benefit of the community and suitably to the trust and ends of the government, is undoubted prerogative, and never is questioned. For the people are very seldom or never scrupulous or nice in the point or questioning of prerogative whilst it is in any tolerable degree employed for the use it was meant- that is, the good of the people, and not manifestly against it. But if there comes to be a question between the executive power and the people about a thing claimed as a prerogative, the tendency of the exercise of such prerogative, to the good or hurt of the people, will easily decide that question.
162. It is easy to conceive that in the infancy of governments, when commonwealths differed little from families in number of people, they differed from them too but little in number of laws; and the governors being as the fathers of them, watching over them for their good, the government was almost all prerogative. A few established laws served the turn, and the discretion and care of the ruler suppled the rest. But when mistake or flattery prevailed with weak princes, to make use of this power for private ends of their own and not for the public good, the people were fain, by express laws, to get prerogative determined in those points wherein they found disadvantage from it, and declared limitations of prerogative in those cases which they and their ancestors had left in the utmost latitude to the wisdom of those princes who made no other but a right use of it- that is, for the good of their people.
164. But since a rational creature cannot be supposed, when free, to put himself into subjection to another for his own harm (though where he finds a good and a wise ruler he may not, perhaps, think it either necessary or useful to set precise bounds to his power in all things), prerogative can be nothing but the people's permitting their rulers to do several things of their own free choice where the law was silent, and sometimes too against the direct letter of the law, for the public good and their acquiescing in it when so done.
168. The old question will be asked in this matter of prerogative, "But who shall be judge when this power is made a right use of?" I answer: Between an executive power in being, with such a prerogative, and a legislative that depends upon his will for their convening,there can be no judge on earth.

This last part, in sec. 168, is wrong: we have elections.
2.6.2006 2:25pm
Jack John (mail):
I am a black person who has read John Locke, so I am Clarence Thomas. What logic, Anderson. What a funny black joke. I really want your breed of logic safeguarding my constitutional liberties.
2.6.2006 2:27pm
Medis:
A.S.,

Suppose this other statute specified procedures. Are you saying those would be procedures "in FISA" itself?

I think that is an exceptionally odd claim. Indeed, this was already going on before the 2001 AUMF: Title III, in addition to FISA, also authorizes electronic surveillance within the meaning of FISA. So, one thing 1809(a) certainly does is not make it a crime to do surveillance as authorized by Title III.

But did that mean the procedures in Title III were procedures in FISA?

Again, that seems like a very odd claim to me. In any event, we know it is wrong--because if the procedures in Title III were somehow incorporated into FISA by 1809(a), then the reference in 2511(2)(f) to the procedures in Title III would be superfluous. Indeed, any specific mention of statutes in 2511(2)(f) would be superfluous, because procedures pursuant to any statute would be incorporated into FISA, and thus into 2511(2)(f), on this reading.

Personally, I think the text and structure of these statutes is perfectly clear, and it takes an unnatural reading of "procedures in FISA" to even create an issue. But insofar as this is ambiguous at all, as discussed by the CRS, the legislative history makes it perfectly clear what Congress meant to do. As the CRS relates, this part of 18 USC 2511 was added when FISA was enacted, and they meant to do exactly what 2511(2)(f) says, which is to make the procedures actually specified in Title III and the (then new) FISA the exclusive means for conducting electronic surveillance.
2.6.2006 2:29pm
duh! (mail):
Um Omar...

You just can't dispose of quote mining the founders. Next thing you know: anarachy in the streets, dogs and cats living together, and my Edmund Randolph commemorative collectors plate would lose almost all of its value!

And if you say anything, I mean, *anything* bad about John Locke it is on, mister.
2.6.2006 2:31pm
Kate1999 (mail):
Jack John,

Has any court ever cited cited Locke's 2nd treatise as authority for construing Article II?
2.6.2006 2:33pm
Jack John (mail):
Do you have an argument, duh!? Or just the John Stewart faux-intellectual pose?
2.6.2006 2:33pm
Jack John (mail):
Does John Locke need to be cited to be relevant? I handled this above with my discussion of sec. 39 of the Magna Carta.
2.6.2006 2:34pm
Jack John (mail):
Oh, and Klein is solid caselaw.
2.6.2006 2:36pm
Kate1999 (mail):
So let me get this straight, Jack John -- rather than relying on U.S. Supreme Court precedents, you think the answer to this legal question lies in a work of philosophy that the Supreme Court has never even cited in any way relevant to this topic? Locke is great, and was an important influence on the framers, but the idea that we should find the answer in a close reading of Locke is just completely absurd.

Or maybe we should be looking to see if Plato or Socrates answered this question...
2.6.2006 2:39pm
Kate1999 (mail):
And what on earth does Klein have to do with this?
2.6.2006 2:40pm
Mary Katherine Day-Petrano (mail):
What I wonder is why AG Gonzales refuses (and has not been made) to testify under Oath in tehse hearings. no Oath, no perjury. No Oath, not believable.
2.6.2006 2:40pm
Jack John (mail):
If you have not read the argument I have made, I do not understand why you are replying to it.
2.6.2006 2:41pm
Jack John (mail):

you think the answer to this legal question lies in a work of philosophy that the Supreme Court has never even cited in any way relevant to this topic?



That's a bizarre way of looking at it. If that's your argument, then we shouldn't look to the history of the Magna Carta to interpret what the Due Process meant at the time of ratification. Not only would Scalia disagree with you, the entire current composotion of the Supreme Court would disagree with you.
2.6.2006 2:43pm
Kate1999 (mail):
Jack John,

You are just getting sillier and siller. When was the last time the U.S. Supreme Court relied in the history of the Magna Carta to interpret the Due Process clause? I think you are confusing what the law *is* with what you think the law *should* be.

Oh, and I see you mention Klein, but you simply announce that it is the key precedent; I missed your careful analysis of it. But then I guess I am old-fashioned in thinking that is necessary.
2.6.2006 2:49pm
Medis:
As an aside, I think I might take to calling the Yoo/Gonzales/Bush view of executive power the "moderated monarchy" view. I think it captures their sense of executive power quite well, and as a bonus it is alliterative.

Anyway, to Omar:

While the Founders were certainly inconsistent with each other, and sometimes inconsistent over time, with respect to various constitutional questions, I haven't actually seen much evidence for such an inconsistency over this particular issue. It is true, for example, that Hamilton in particular had a pretty expansive notion of executive power. So, I actually think it is quite telling that not even he believed that the President should be able to make his own military law.

Of course, Hamilton had a great teacher on this subject. As I have related before, it was then-General George Washington who asked the Continental Congress for Articles of War during the Revolutionary War. Washington was quite the fan of military law in general--he thought it ultimately rendered armed forces more effective, and indeed even suggested that the armed forces good behavior would attract divine favor. To give a somewhat trivial but telling example, Article 2 of the very first Articles of War provided:

"It is earnestly recommended to all officers and soldiers diligently to attend divine service: and all officers and soldiers who shall behave indecently, or irreverently, at any place of divine worship, shall, if commissioned officers, be brought before a general court-martial, there to be publicly and severely reprimanded by the president; if non-commissioned officers or soldiers, every person so offending shall, for his first of fence, forfeit 1/6th of a dollar, to be deducted out of his next pay; for the second offense, he shall not only forfeit a like sum, but be confined for twenty-four hours; and, for every like offense, shall suffer and pay in like manner; which money, so forfeited, shall be applied to the use of the sick soldiers of the troop or company to which the offender belongs."

Anyway, as you might know, Hamilton was Washington's aide-de-camp for an extended period during the Revolutionary War. Similarly, various other "Founders" served under the Articles of War, or, alternatively, participated in the passing of those Articles of War within the Continental Congress.

So, I suspect those experiences of the Founders--by Washington, Hamilton, and other officers on the one hand, and the Continental Congress on the other--helps explain why they all took it as given that Congress should have the power to make military law. Add to that their prior grievances against the King's abuses of his military authority in the colonies, plus a number of concerns about protecting the people when armies were literally conducting war in their backyards, and it makes perfect sense that there would be widespread agreement among the Founders on the proposition that Congress should be able to make laws protecting the people from abuses of military power.
2.6.2006 2:51pm
Jack John (mail):
Kate:

If you have an argument, please make it.
2.6.2006 2:57pm
Jack John (mail):

It is true, for example, that Hamilton in particular had a pretty expansive notion of executive power. So, I actually think it is quite telling that not even he believed that the President should be able to make his own military law.



No one is talking about making law.
2.6.2006 2:58pm
minnie:
The money clip from these hearings is when Gonzales, asked point blank by Feingold if the administration was ALSO conducting domestic to domestic warrantless spying, flat out refused to answer. Prior, he had said "this program" did not include domestic/domestic warrantless spying, as that would upset Americans too much. Then, when the obvious folly of that position (what, we are not monitoring two Al Queda agents talking to each other in this country?) was pointed out to AG by a staffer, he did some backtracking to try to qualify that, but when asked pointblank if there had been any instance of it, he stonewalled.

I am convinced there are two separate programs going on. One is the one which was leaked to the NY Times, involving solely international communication. The other one, far more scary, is the domestic/doemstic warantless surveillance that it now appears is part of some different program outside of the knowledge of the Senate Judiciary Committee, and Congress also.

The fear is that if it never gets leaked, we'll never know. Gonzales has already made clear that the President has inherent power and authority under the AUMF to do whatever he wants, so even if it were leaked, they would use the same argument to defend it's legality under the constitution. Notice his statement, "Not only is nobody above the law, nobody is above the constitution." And it is precisely their argument that the constitution is what enables them to conduct these activities.
2.6.2006 3:01pm
minnie:
Bingo! I was right. Leahy just zeroed in on this very question "Are you doing it? Are you doing it?" and Gonzales refused again to answer.

They're doing it, you can be sure now.
2.6.2006 3:04pm
Jack John (mail):
Up to the time of our Civil War, the U.S. Supreme Court found fewer than a dozen cases requiring analysis of Magna Carta. Between 1870 and 1900, over thirty cases, mostly interpretations of the newly extended rights under the 13th, 14th, and 15th Amendments, involved discussions of Magna Carta But since 1940, over sixty cases have produced comments and commentary on Magna Carta's role in American law.

Although Carta figured briefly in one 1815 case, the first analysis of its impact in America came in the 1819 case of The Bank of Columbia v. Okely, 4 Wheat.(l 7 U.S.) 235, where a Maryland statute allowing summary process and attachment against debtors was upheld against attacks based on the U.S. Constitution's Seventh Amendment jury trial guarantee and Maryland's parallel: "The 21st Article of the Declaration of Rights of the State of Maryland is in the words of Magna Carta, "No freeman ought to be taken or imprisoned, etc. or deprived of his life, liberty, or property, but by the judgement of his peers, or by he law of the land." In that decision, the court expressed an understanding of Magna Carta which remains valid today: "As to the words from Magna Carta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principals of private rights and disruptive justice."

Hamdi v. Rumsfeld: "Whether insisting on the careful scrutiny of emergency claims or on a vigorous reading of §4001(a), we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by "the law of the land."
2.6.2006 3:05pm
Medis:
minnie,

It will be interesting to see if certain Senators succeed in making the point to the American people that given the Administration's legal analysis, there really are no particular limits to the laws that they can waive as they see fit.
2.6.2006 3:07pm
Jack John (mail):
There are. They are called elections. Vote.
2.6.2006 3:08pm
Kate1999 (mail):
Jack John,

When Hillary Clinton wins in 2012, and then sends all the members of the Vast Right Wing Conspiracy to Guantanamo on the ground that they are enemy combatants, methinks you are going to regret your "legal" analysis.
2.6.2006 3:19pm
Anderson (mail) (www):
I am a black person who has read John Locke, so I am Clarence Thomas. What logic, Anderson. What a funny black joke. I really want your breed of logic safeguarding my constitutional liberties.

You left out "humorless." It wasn't a "black joke." It was a "pseudo-originalist with no respect for civil liberties" joke. Had you not identified yourself as black, I would have had more choices from the Court.

Anyway, as we know from Anita Hill, Justice Thomas does have a sense of humor (of sorts), so I guess that blows my theory.
2.6.2006 3:20pm
Jack John (mail):
CITY OF BOERNE v. FLORES, ARCHBISHOP OF SAN ANTONIO, et al. : “This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke)”

SEMINOLE TRIBE OF FLORIDA v. FLORIDA, ___ U.S. ___ (1996) : “In this context, however, the colonists were referring "not to the corpus of English case-law doctrine but to such profoundly valued common law procedures as trial by jury and the subjection of governmental power to what John Locke had called the `standing laws,'" such as Magna Carta, the Petition of Right, the Bill of Rights of 1689, and the Act of Settlement of 1701. Jones 110; see also Jay, Origins of Federal Common Law: Part Two, 133 U. Pa. L. Rev. 1231, 1256 (1985) (Jay II) (noting that "Antifederalists used the term common law to mean the great rights associated with due process").”

MISTRETTA v. UNITED STATES, 488 U.S. 361 (1989) : As John Locke put it almost 300 years ago, "[t]he power of the legislative being derived from the people by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws, and not to make legislators, the legislative [488 U.S. 361, 420] can have no power to transfer their authority of making laws, and place it in other hands." J. Locke, Second Treatise of Government 87 (R. Cox ed. 1982) (emphasis added). Or as we have less epigrammatically said: "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." Field v. Clark, supra, at 692. In the present case, however, a pure delegation of legislative power is precisely what we have before us. It is irrelevant whether the standards are adequate, because they are not standards related to the exercise of executive or judicial powers; they are, plainly and simply, standards for further legislation.

ABINGTON SCHOOL DIST. v. SCHEMPP, 374 U.S. 203 (1963) : When John Locke ventured in 1689, "I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other," 1 he anticipated the necessity which would be thought by the Framers to require adoption of a First Amendment, but not the difficulty that would be experienced in defining those "just bounds."

DENNIS v. UNITED STATES, 341 U.S. 494 (1951) : This idea that the limit on freedom of speech or press should be set only by an actual overt act was not new. It had been asserted by a long line of distinguished thinkers including John Locke, Montesquieu in his The Spirit of the Laws (`Words do not constitute an overt act'), the Rev. Phillip Furneaux, James Madison, and Thomas Jefferson." [341 U.S. 494, 593]

These are but examples.
2.6.2006 3:21pm
KMAJ (mail):
I am curious, it appears the real argument is constitutional authority versus statutory prohibition that depends on where one draws the line in the sand on constitutional authority. The Cunningham Letter presents a compelling argument against those who keep propping up Jackson through selective interpretation. Any argument against the program relies on the "fundamental mistake...the NSA falls into 'Zone 3'".

Why is it that those who make this assumption fail to address whether FISA itself, in part, may be unconstitutional. Sealed Case raises this question without resolution. Where is the line that cannot be crossed in the separation of powers ? Does FISA, in some aspects, cross that line ? Is foreign affairs not the exclusive area of the executive branch with the Senate only having an advise and consent role ?

It appears the Dellinger has contradicted his own legal advice to the Clinton Administration:

[T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because "[i]t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers." Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.
Accordingly, law enforcement officers who acquire information vital to national security or foreign relations would be obliged to convey it to the appropriate superiors (e.g., the United States Attorney), who would report it to the Attorney General or Deputy Attorney General, who would in turn report it to the President or his designee. The President (or appropriate officials acting on his behalf, such as the Attorney General) would be authorized to share such crucial information with his executive branch subordinates, including intelligence community officials, to the extent necessary to discharge his constitutional responsibilities. Of course, this constitutional authority should not be exercised as a matter of course. Rather, it should only be exercised in extraordinary circumstances and with great care, and only where disclosure is necessary to the discharge of the President's constitutional responsibilities over matters of national security or foreign affairs. Even then, any contemplated exercise of this authority would necessitate careful consideration of the intrusion on privacy that might result.

Nor do we believe that disclosure of Title III information in these circumstances would violate the Fourth Amendment. Even if a disclosure of Title III information (as distinct from the seizure of the information) could otherwise violate the Fourth Amendment in some circumstances--a matter we do not address--we do not believe that this is an impediment to disclosure of Title III information of serious foreign affairs or national security import to the President. As we noted in our 1997 grand jury memorandum, the Supreme Court has recognized in other contexts that government actions overriding individual rights or interests may be justified where necessary to prevent serious damage to the national security or foreign policy of the United States. See Haig, 453 U.S. at 309 (invoking the principle that the Constitution's guarantees of individual rights do not make it a "suicide pact"); American Communications Ass'n v. Douds, 339 U.S. 382, 408-09 (1950) (to the same effect). We consider it very unlikely that the Court would conclude that the Fourth Amendment prohibits the disclosure of information vital to the national security or foreign relations of the United States.


Don't the critics elevate Congress to the level of the superior branch of government that can lord over the other two by passing statutes ? I see no check nor balance on legislative branch authority in their argument, only an assertion of unrestrained rights to statutorily infringe on the other branches, which goes to the heart of Madison's stated concerns about the legislative branch's tendency to absorb ALL power into their vortex, and as such, was the greatest threat to the liberty of the citizens. If you give the legislative branch the authority to neuter the other two branches with impunity, the Constitution is for all intents and purposes dead and not worth the paper it is written on.

Historically speaking, the executive branch is not even close to exercising the scope of executive authority claimed by past presidents, but it can be stated that the legislative branch is currently at a point where it is at or approaching an unprecedented scope of power, where it is willing to attempt to pass laws to limit the scope of the judicial branch to hear cases (i.e. gay marriage) or pass statutes to infringe on executive branch authority to protect this country and the Constitution.

To this layman, it appears most engage in circular argumentation that leads back to their own pre-conceived result, rather than approaching the issue on a scale of justice of civil liberty versus security on opposite sides of the fulcrum. The scale of justice approach requires dealing with the realities of the specific situation, and not clairvoyance nor hypotheticals that will skew the balance. Whatever the outcome, I think it will be unsatisfying to both sides. The judiciary committee hearings are of limited value because they will not have access to the specific classified information. The intelligence committee hearings will be unsatisfying because they will be behind closed doors and we still will not be privy to the classified information.

On a side note, Jed Babbin, former Reagan administration official, on the John Batchelor radio program on WABC, has put forth that Sen. Rockefeller is a primary source of the NY Times leak. For the legal scholars in here, I ask, if this were proven true, what legal jeopardy is Sen. Rockefeller exposed to ? I ask this because so little discusson of the criminal aspect of the leaks has been forth coming in the media and in legal blogs.
2.6.2006 3:22pm
Jack John (mail):

Had you not identified yourself as black, I would have had more choices from the Court.



I'm not certain what skin color has to do with interpretive methodology, but I think your insinuation that it does just proved my point.
2.6.2006 3:23pm
18 USC 1030 (mail):
I cannot speak on asspects that the president has not yet confirmed-- just said by the AG. If there was any question whether or not there was more going on, I think he just confirmed it. He is also getting visably shaky.
2.6.2006 3:24pm
Anderson (mail) (www):
JackJohn (quoting Hamdi): we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by "the law of the land.

So what do you think this *means* exactly, JackJohn? Because Gonzales doesn't seem to recall this portion of the Charter, or of Hamdi.

It occurs to me, btw, that no Presidential power, even the pardon power, is immune from checks and balances. If the President openly sold pardons, I daresay the courts and Congress could do something about that.

So, I propose the following touchstone: any argument for unchecked executive power under the U.S. Constitution is simply wrong, on its face.

This rule would certainly slim down this comment thread.
2.6.2006 3:26pm
Jack John (mail):

When Hillary Clinton wins in 2012, and then sends all the members of the Vast Right Wing Conspiracy to Guantanamo



I am a Democrat. I think it is now that case that everything you have claimed has been officially falsified.
2.6.2006 3:26pm
Jack John (mail):

Because Gonzales doesn't seem to recall this portion of the Charter, or of Hamdi.



That is because it is not from the majority opinion. It is Stevens, in dissent, being an originalist. My point was as I explicitly stated above: The entire current roster of the Court accepts this methodological practice, both with regard to the Magna Carta and with regard to John Locke's Second Treatise on Government, whether in the majority, concurring, or in dissent, and the Court has historically accepted it.
2.6.2006 3:30pm
Anderson (mail) (www):
I'm not certain what skin color has to do with interpretive methodology, but I think your insinuation that it does just proved my point.

Okay, JJ, now you're just sounding dumb. Your skin color has nothing to do with your methodology. Let me walk you through this slowly:

(1) You have doubtless noticed that readers of your comments associate your arguments with a position of extreme deference to executive power.

(2) Justices on the Court who might be sympathetic to such a position include, inter alia, Justice Thomas (the "1" part of the 8-1 lineup in Hamdi).

(3) You self-identified as "black."

(4) Justice Thomas, allow me to enlighten you, is the only black Justice.

(5) Ergo, if you were to be imagined as a Justice trolling the VC (an amusing thought, to at least one of those unimpressed by your arguments), the only choice would be Justice Thomas.

Is that simple enough?

Now, as to your self-ID's: black *and* a Democrat? And a fervent defender of the President's power to ignore FISA? Hm. "On the Internet, nobody knows you're a dog."

*I* am Osama bin Laden, and ALL of you are going to be wiretapped by NSA as a result of participating in this thread. Bwa-ha-ha-ha-ha!
2.6.2006 3:33pm
Anderson (mail) (www):
That is because it is not from the majority opinion.

What "majority opinion" would that be, exactly?

O’Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion, in which Stevens, J., joined. Thomas, J., filed a dissenting opinion.

Did Stevens ghostwrite Scalia's opinion?

Now my theory that JJ is on the Court is *completely* blown.
2.6.2006 3:37pm
Anderson (mail) (www):
Btw, that was Justice Souter whom JJ was trying to say dissented from the *plurality* opinion.
2.6.2006 3:39pm
duh! (mail):
Jack John couldn't be Thomas, he hasn't cited his magic dictionary even one time!!
2.6.2006 3:39pm
Kovarsky (mail):
Jack John,

Your response to Medis's point that "it would be interesting" to see whether someone pointed out that the AG's interpretation was entirely delimited was, "there is, vote."

I'm not sure what you mean here - is your point that the only constitutional check on on the executive's authority here is either to vote for a new executive or to vote for new congressmen would be more willing to audit the executive's activity?

I should mention that some of your exchanges with some of the other people on this thread are distasteful - through no fault of your own. Please do not interpret my question as hostile, I'm genuinely trying to understand what you meant by "just vote."
2.6.2006 3:39pm
Jack John (mail):

(2) Justices on the Court who might be sympathetic to such a position include, inter alia, Justice Thomas (the "1" part of the 8-1 lineup in Hamdi).
(4) Justice Thomas, allow me to enlighten you, is the only black Justice.




And? Given that "inter alia" means among others, why would you automatically or necessarily lump me in with Thomas? He did not refer to John Locke or the Magna Carta in his arguments in Hamdi. Our arguments are distinct. It would make more sense to link me to Stevens, who has cited to the Magna Carta, or to Brennan, who has cited to John Locke. Or Rehnquist, who wrote Seminole Tribe! The only link that exists in the one in your head: black poster, black Justice. Except that has nothing to do with the content of my posts. Moreover, your uncanny knack to condescend to me is remarkably incivil. I need to be walked through your (fallacious) argument "slowly"? I need your argument to be reduced to "simple enough" terms? Mutatis mutandis.
2.6.2006 3:46pm
Anderson (mail) (www):
Scalia is interesting in his Hamdi op:

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

Mutatis mutandis, this is an interesting tea leaf for an eventual Scalia vote on the Bush/Gonzalez interpretation of FISA.

(And since I'm probably one of those distasteful persons noted by Kovarsky, allow me to apologize. When I see arguments that look laughable to me, I should just laugh.)
2.6.2006 3:47pm
Jack John (mail):

Did Stevens ghostwrite Scalia's opinion?



No, but he joined it, so one can fairly attribute it to him...
2.6.2006 3:48pm
Jack John (mail):
I'm not sure what you mean here - is your point that the only constitutional check on on the executive's authority here is either to vote for a new executive or to vote for new congressmen would be more willing to audit the executive's activity?

Yes. That's the case with political questions, underdetermined clauses of the constitution, etc.
2.6.2006 3:49pm
Anderson (mail) (www):
Scalia is interesting in his Hamdi op:

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

Mutatis mutandis, this is an interesting tea leaf for an eventual Scalia vote on the Bush/Gonzalez interpretation of FISA.

(And since I'm probably one of those distasteful persons noted by Kovarsky, allow me to apologize. When I see arguments that look laughable to me, I should just laugh.)
2.6.2006 3:50pm
Jack John (mail):

What "majority opinion" would that be, exactly?



If your argument is that one cannot piece together portions of Hamdi where Thomas was in agreement with the plurality, making it a 5-4 on that issue, you are sadly mistaken.
2.6.2006 3:51pm
duh! (mail):
Kovarsky-

Jack John is just another typical black, democratic, originalist, who works for the DOJ and likes Locke, the Magna Carta, and walks on the beach.

His turnoffs are people who smoke.

(and jack john, bud, its just a joke- just because your is having a bad day don't forget to smile every once in awhile)
2.6.2006 3:52pm
Kovarsky (mail):
Jack,

You know very well that "political questions" means the "political questions doctrine," which is a very limited justiciability issue involving a highly circumscribed set of circumstances plainly not present here.

So would you please elaborate on what you mean by "underdetermined clauses of the constitution."

Thanks,
Lee
2.6.2006 3:53pm
Anderson (mail) (www):
why would you automatically or necessarily lump me in with Thomas? He did not refer to John Locke or the Magna Carta in his arguments in Hamdi. Our arguments are distinct. It would make more sense to link me to Stevens.

Because you said you were black, so that if you were a Supreme Court justice slumming at the VC, that is the only justice you would be. Assuming you were telling the truth about being black, of course.

I assume the above is obvious to everyone here except JJ, so I won't belabor it further.
2.6.2006 3:54pm
Jack John (mail):

Because you said you were black, so that if you were a Supreme Court justice slumming at the VC, that is the only justice you would be.



If this is your reasoning, then you were lying when you claimed it concerned the substance of my posts.
2.6.2006 3:56pm
Jack John (mail):

You know very well that "political questions" means the "political questions doctrine," which is a very limited justiciability issue involving a highly circumscribed set of circumstances plainly not present here. So would you please elaborate on what you mean by "underdetermined clauses of the constitution."



I think it's analogous to a political questions doctrine issue. http://volokh.com/posts/1137697747.shtml#55950
2.6.2006 4:00pm
Kovarsky (mail):
that link is not working and i'm searching "political questions" when i paste the URL into my browser and i'm not seeing anything.

1) would you mind resummarizing (or pasting) here

2) please elaborate on the underdetermined questions rule you invoked before
2.6.2006 4:06pm
Jack John (mail):
This is a comment SimonD made, quoting Lee Strang:

Lee J. Strang has made; he has a very interesting paper (available through SSRN) about originalism and predecent, and one of the things he talks about is exactly what you're saying, I think, except Strang labels it "underdeterminacy." He argues that:
when the original meaning of the Constitution is determinate, judges will have no discretion and will instead be bound by that meaning. For example, in a case challenging Congress’ Commerce Clause authority to regulate shipment across state lines of agricultural products, even if the judge presiding over the case believes that the statute in question is very bad policy, the judge is bound to rule that Congress has the Commerce Clause authority to enact the statute.

However, like all language the original meaning of the Constitution has limits. When, as often occurs in constitutional cases, the Constitution’s text and original meaning does not provide sufficient guidance, that is, when a case is underdetermined by the original meaning, the Court’s warrant to strike down acts of the elected branches has reached its limit. In the constitutional context, the Court must defer to the legislature’s determination—or what, following other scholars, I shall call a constitutional construction — when the original meaning of the text of the Constitution is underdetermined.
2.6.2006 4:08pm
Jack John (mail):
My point, however, is that it depends which elected branch is the primary interpreter in the situation. If we're talking about scope of a President's emergency war powers, then the claim of the President stands because the court never hears the question, i.e., it might as well not be justiciable.
2.6.2006 4:11pm
Medis:
Anderson,

Interestingly, there is a very specific example of that principle from the Magna Carta in the Revolutionary War Articles of War. Section X, Article 1 of the 1776 Articles of War provides:

"Whenever any officer or soldier shall be accused of a capital crime, or of having used violence, or committed any offense against the persons or property of the good people of any of the United American States, such as is punishable by the known laws of the land, the commanding officer and officers of every regiment, troop, or party, to which the person or persons so accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use his utmost endeavors to deliver over such accused person or persons to the civil magistrate; and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring them to a trial. If any commanding officer or officers shall wilfully neglect or shall refuse, upon the application aforesaid, to deliver over such accused person or persons to the civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers so offending shall be cashiered."

So, even when we were fighting a war for national survival--a war we were by no means certain of winning in 1776--we believed that our armed forces should be subject to the "known laws of the land".

Incidentally, obviously the Founders did not opt for Locke's "moderated monarchy". And you are right that this is on the face of the Constitution: "he shall take Care that the Laws be faithfully executed." No monarchical exception is provided.
2.6.2006 4:12pm
Jack John (mail):
I also don't see how you get a clear case of standing out of a clause that has rarely been interpreted and so has almost no direct case law.
2.6.2006 4:13pm
Jack John (mail):

Incidentally, obviously the Founders did not opt for Locke's "moderated monarchy". And you are right that this is on the face of the Constitution: "he shall take Care that the Laws be faithfully executed." No monarchical exception is provided.



1. Hamdi rejects the invocation of the Magna Carta in the face of a broad interpretation of AUMF that is Lockean in its breadth.
2. There is no such thing as a "moderated monarchy" exception. What Locke says is this: "WHERE the legislative and executive power are in distinct hands, as they are in all moderated monarchies and well-framed governments, there the good of the society requires that several things should be left to the discretion of him that has the executive power." A constitutional democracy is "a well-framed government." So Locke applies.
2.6.2006 4:16pm
John McCall (mail):
KMAJ wrote:
Don't the critics elevate Congress to the level of the superior branch of government that can lord over the other two by passing statutes ? I see no check nor balance on legislative branch authority in their argument, only an assertion of unrestrained rights to statutorily infringe on the other branches, which goes to the heart of Madison's stated concerns about the legislative branch's tendency to absorb ALL power into their vortex, and as such, was the greatest threat to the liberty of the citizens. If you give the legislative branch the authority to neuter the other two branches with impunity, the Constitution is for all intents and purposes dead and not worth the paper it is written on.
As I recall from civics class, the legislative branch
  1. cannot directly execute its own policies, that power being granted only to the executive branch,
  2. is subject to presidental veto, overridable only with a super-majority vote, and
  3. is subject to judicial review.
Furthermore, there are inherent (in a much more accurate sense of the word) blocks in front of Congressional power, those being the bicameral nature of Congress, the size of the two bodies, and the legislative process itself. Thus, we are protected from legislative overreaching by the fury of the courts, the raised eyebrows of the bureaucrats, and the impotence of the legislators themselves.

The simplest limit on the other branches is their inability to independently define new policies outside of very small domains — which I thought to be the real topic of this discussion.
2.6.2006 4:18pm
Kovarsky (mail):
Jack,

It would be fair to refer to this idea as a constitutional presumption in favor of the legislative branch, would it not? Forget for a moment that the idea that just because a case is debateable triggers deference seems to lack a significant academic following. I realize I open myself up to the criticism that I have not read his article and read his authority, but I hope you'll agree that if I had the time, I could track down considerable judicial authority and academic material opposing it. But lets take the abstract on it's face.

First, at least the abstract here speaks exclusively to legislative deference on these "confused questions." The deference here would be to the executive.

Second, the conflict here is not only one between the executive and the courts (the fourth amendment issue), but between the legislature and the executive. If the principle is that the elected branches of government should prevail in a grey area, then I don't see why the Congressional concern over this issue doesn't undermine the notion that deference to the executive would be giving effect to that principle.

Third, I'm just guessing that whomever wrote that paper had constitutional decisions involving individual rights in mind - not structural issues like separation of powers? Applying that principle to a separation of powers questions strikes me as logically incoherent - it is impossible, without some judiciary intermediation, to reconcile the executive view of what executive and congressional power is with the congressional view of what executive and congressional power is.
2.6.2006 4:20pm
Anderson (mail) (www):
Thanks, Medis.

Btw, I looked up the ref by JJ, supra, to where Article II “explicitly discusses pardons and vetoes and emergency powers, in the same section.”

Apparently JJ’s notion of “explicit” is esoteric:
Section 2: 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, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
That is *all* of Section 2. Did you see the explicit discussion of emergency powers? Me neither.

Unless it's that emergency recess-appointment power.

I also looked up Klein, and while it's certainly sweeping as to the pardon power, I don't see that it backs up JJ's broader claims.

Nor for that matter do I think that the Court would hesitate to overturn Klein if the President started selling pardons at $1M each.
2.6.2006 4:20pm
ipsley:
I'm not a lawyer, but it strikes me that the Constitution does share power over the armed forces between the executive and the legislative branches. We've repeatedly seen the Article II appointment of the President as Commander in Chief, but Article I includes among the enumerated powers of Congress the powers:

"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..."

If the Congress may make rules for the armed forces, whether regular forces or militia (that is, the National Guard, if called to active duty), and if electronic surveillance is indeed part of the necessary incidents of war, then does it not follow that Congress may make rules for electronic surveillance?
2.6.2006 4:22pm
Jack John (mail):

Applying that principle to a separation of powers questions strikes me as logically incoherent - it is impossible, without some judiciary intermediation, to reconcile the executive view of what executive and congressional power is with the congressional view of what executive and congressional power is.


No, the point is that in the structural context the Court does nothing. There is no court decision. Underdetermination as a theory is not incoherent; it is an explicit attempt to incorporate into constitutional theory the incoherence in constitutional law.


If the principle is that the elected branches of government should prevail in a grey area, then I don't see why the Congressional concern over this issue doesn't undermine the notion that deference to the executive would be giving effect to that principle.


Here is where Klein comes in. This is an area of exclusive Presidential power, which is beyond the reach of Congress, just like Presidential exercise of the pardon power.
2.6.2006 4:25pm
Medis:
John McCall,

I agree--obviously, the legislative power of Congress is limited and checked by the Constitution in all sorts of ways.

Indeed, I find it interesting that KMAJ states:

"I see no check nor balance on legislative branch authority in their argument, only an assertion of unrestrained rights to statutorily infringe on the other branches."

As you note, there are many restraints on the ability of Congress to pass statutes. But if a statute can pass through all those restraints and yet can still not "infringe" on the President, then it seems like Congress is not only restrained, but actually powerless, when it comes to the President. In other words, if even a duly passed, signed, and otherwise constitutional statute is rendered unconstitutional simply because the President wills otherwise, then the President truly is above the law.

Fortunately, I doubt most people will accept the proposition that our separation and balance of powers requires the President to be completely immune to statutory restraints.
2.6.2006 4:25pm
Jack John (mail):

Btw, I looked up the ref by JJ, supra, to where Article II “explicitly discusses pardons and vetoes and emergency powers, in the same section.”



I never said that. I said that John Locke's Second Treatise of Government explicitly discusses pardons, vetoes, and emergency powers in the same section. Anyone can scroll up to see that. Stop lying.
2.6.2006 4:26pm
Anderson (mail) (www):
JJ: There is no such thing as a "moderated monarchy" exception. What Locke says is this: "WHERE the legislative and executive power are in distinct hands, as they are in all moderated monarchies and well-framed governments, there the good of the society requires that several things should be left to the discretion of him that has the executive power." A constitutional democracy is "a well-framed government." So Locke applies.

Except that the Constitution enacts neither Mr. Spencer's Social Statics, nor Mr. Locke's Second Treatise. Locke is a respected political philosopher; he is not a particularly reliable guide to every issue under the U.S. Constitution.

America is not Britain.

The president is not the king.

Heeding these axioms would help a lot in one's Constitutional interpretation, methinks.
2.6.2006 4:28pm
Jack John (mail):

Locke is a respected political philosopher; he is not a particularly reliable guide to every issue under the U.S. Constitution.



You might want to look up to the Supreme Court cases I quoted from that cited Locke as an authority. You're also ignoring that this is a case of underdetermined clauses, so the political philosophy that undergirds our Constitution and sets the boundaries of Article III is relevant.
2.6.2006 4:30pm
Anderson (mail) (www):
Okay, I misread JJ's pronoun as referring to the Constitution, not to Locke. Mea culpa.

That said, so what? The omission of "emergency powers" in Article II sounds like a big fat repudiation of Locke on that point, doesn't it?
2.6.2006 4:31pm
Jack John (mail):

That said, so what? The omission of "emergency powers" in Article II sounds like a big fat repudiation of Locke on that point, doesn't it?



Do you read? Did you even read what I wrote? NO, IT DOES NOT. I squarely noted that there is a strong argument that is why the Vesting Clause is in the text of the Constitution. Add to that the Take Care Clause.
2.6.2006 4:33pm
Anderson (mail) (www):
You might want to look up to the Supreme Court cases I quoted from that cited Locke as an authority. You're also ignoring that this is a case of underdetermined clauses, so the political philosophy that undergirds our Constitution and sets the boundaries of Article III is relevant.

The "underdetermined clause" argument is itself too specious to merit dragging out Locke, or any other Founding Grandfather. I don't think some law prof's (or whoever's) clever notion of an "underdetermined clause" is going to have any application in the FISA issues. Congress regulates what's permissible for the military. Period.

And the "citations" to Locke in the cases you cite are window-dressing. Show me *one* contested point of Constitutional interpretation where Locke was a decisive authority, not window-dressing.
2.6.2006 4:37pm
Medis:
Anderson,

Exactly: we don't derive the pardon power or veto power from Locke. We derive it from the express language of the Constitution.

Indeed, imagine for a moment that there was no presidential veto power in the Constitution (eg, the Constitution simply provides that a bill becomes law when passed by both houses of Congress). Would we interpret a presidential veto power into the Constitution on the strength of citations to Locke? I doubt it.

In fact, this is part of why I think Clinton v. City of New York is a particularly useful case. Regardless of whether the Court correctly described the issue at hand, it held that the President could not be granted the authority by Congress to amend or repeal statutory provisions at his discretion (the so-called "line item veto", although crucially it occurred after the bill was signed into law). The Court reasoned that if the President could do so, it would circumvent the Article I legislative process, and that by making this process explicit, the Founders ruled out alternative mechanisms.

That is basically what the "moderated monarchists" are proposing: that the President should be able to waive or amend statutes at his discretion without going through the Article I process. But the Constitution contains no such presidential power, and I think the Court rightly held that not even Congress can delegate that power to the President. So, he certainly can't just take it for himself.
2.6.2006 4:38pm
Kovarsky (mail):
Jack,

No, the point is that in the structural context the Court does nothing. There is no court decision. Underdetermination as a theory is not incoherent; it is an explicit attempt to incorporate into constitutional theory the incoherence in constitutional law.

Maybe I wasn't clear about what was untenable out the theory. Congress has one vision of the executive-legislative distribution of power. The executive has another. How does underdetermination deal with the problem of multiple elected-branch interpretatations of the executive-legislative distribution.

But this is all premised on the notion that this is within the executive's exclusive authority to be begin with? It seems to me that your theory requires "stacking" two very dubious propositions. The first is the one we all know - that this is, in fact, within the executive's exclusive authority. The second is the idea that somehow because something is part of the executive's exclusive authority that is necessarily nonjusticiable on political quetions grounds.

Finally, the underdetermination theory seems to me to be a theory of substantive deference, not a theory of justiciability.
2.6.2006 4:40pm
Jack John (mail):

Show me *one* contested point of Constitutional interpretation where Locke was a decisive authority, not window-dressing.


Well, this is fallacious. There is no case that relies on a Federalist Paper per se as the sole authority, because such a case would represent such a butting of heads between the elected branches that no individual would have standing to sue or the courts would not have authority to review it or the courts have historically punted on such issues using some prudential doctrine of Article III, e.g., political questions doctrine, constitutional avoidance doctrine, etc, so that there is no case law on the question.

That's the point.
2.6.2006 4:41pm
Jack John (mail):
No, Kovarsky, I never said it WAS political questions doctrine. Just analogous. I would probably say it is a "generalized greivance." But they're both justiciability doctrines.
2.6.2006 4:43pm
Anderson (mail) (www):
JJ: Did you even read what I wrote? NO, IT DOES NOT. I squarely noted that there is a strong argument that is why the Vesting Clause is in the text of the Constitution.

Yes, I do read. I just don't buy any "strong argument" of the kind you describe. I think it's nonsense. (Are we allowed to use that word? Sometimes it's indispensable.)

Neither the Vesting Clause nor any other clause allows the President to smuggle into the text of Article II a host of powers excluded therefrom.
2.6.2006 4:44pm
Jack John (mail):

The second is the idea that somehow because something is part of the executive's exclusive authority that is necessarily nonjusticiable on political quetions grounds.



Sure, "state secrets doctrine" functions that way. This isn't a controversial claim at all.
2.6.2006 4:45pm
Jack John (mail):

I just don't buy any "strong argument" of the kind you describe.



Ok, then you agree with Kate that no Supreme Court Justice would ever be persuaded by what the Magna Carta says or John Locke says, and it would never influence the interpretation of any clause of the Constitution. That is demonstrably wrong. The whole Court does it.
2.6.2006 4:46pm
duh! (mail):
Anderson-

Jack John is just an umpire, calling john locke's balls and strikes.

You need to start reading Jack John's copy of the Constitution. It clearly states that you can read John Locke into any statement of law when it is necessary and proper.

Its an often overlooked part of Article(s) II and III found in the corresponding Magna Carta and Locke sections.
2.6.2006 4:49pm
Medis:
Anderson,

And the crucial vesting clause in this context is actually in Article I: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Of course, the Constitution explictly gives the President one power with respect to legislation--the veto power. But the President cannot claim an implied constitutional power to amend or repeal statutory provisions without violating the vesting clause of Article I (in addition to his own Take Care clause).

Again, the Constitution on its face is quite explicit about which parts of the Lockean "moderated monarchy" it accepts, and which parts it rejects.
2.6.2006 4:50pm
Jack John (mail):

that the President should be able to waive or amend statutes at his discretion without going through the Article I process.



Medis, please. Amending a law is not the same thing as stopping its application with a pardon.
2.6.2006 4:51pm
Jack John (mail):
Also, Article I has limits. We're talking about exclusive Article II powers, beyond the scope of Article I, e.g., the pardon power. See Klein.
2.6.2006 4:52pm
Jack John (mail):

You need to start reading Jack John's copy of the Constitution. It clearly states that you can read John Locke into any statement of law when it is necessary and proper.


If you want to ignore how the Court actually decides constitutional questions, be my guest. But when lawyers do that it is called malpractice.
2.6.2006 4:54pm
Kovarsky (mail):
Jack,

My point was not that there did not exist exclusively execuitve activity that was non-justiciable, just that the status as "exlusively executive" does not REQUIRE a nonjusticiability determination, as your argument seems to imply.


Also, what would a doctrine of nonjusticiability that is based on the constitutional debatability of the underlying claim look like? It seems like in order to determine whether or not a given issue is justiciable would require a court to first determine the "debatability" of the merits.

I think we can both admit that such a constitutional protocol (requiring a determination of "debatability" to resolve a procedural issue) - present in things like qualified immunity - has very substantial problems in those other contexts.
2.6.2006 4:56pm
Anderson (mail) (www):
Ok, then you agree with Kate that no Supreme Court Justice would ever be persuaded by what the Magna Carta says or John Locke says, and it would never influence the interpretation of any clause of the Constitution.

Um, no. I just happen to think that a majority of the Court would read the Charter and Locke very, very differently from how you've been reading them (if indeed they even felt the need to range so far afield). "Diametrically opposite," though cliched, comes to mind.

And comparing the express and, by its own nature, limited pardon power to wild-eyed "emergency powers" isn't persuasive, either.
2.6.2006 4:56pm
Medis:
Anderson,

In short, where Locke and the text of the Constitution vary, I think the Constitution wins.
2.6.2006 4:59pm
Jack John (mail):

My point was not that there did not exist exclusively execuitve activity that was non-justiciable, just that the status as "exlusively executive" does not REQUIRE a nonjusticiability determination, as your argument seems to imply.



Please explain to me how such a case would not be a "generalized greivance".
2.6.2006 5:02pm
Anderson (mail) (www):
Medis: In short, where Locke and the text of the Constitution vary, I think the Constitution wins.

And before today, I would have thought this to be self-evident ....
2.6.2006 5:03pm
duh! (mail):
"If you want to ignore how the Court actually decides constitutional questions, be my guest. But when lawyers do that it is called malpractice."

Oh what's it called when agents of the executive violate the law? I thought it was called a crime...

G. Gordon Liddy and Company got shafted man! Jack John would have thrown out some Locke, tossed in a little Magna Carta- maybe quoted some John Adams and biggity-bam Nixon et al would have been on Mt. Rushmore. I could see it now, G. Gordon Liddy Middle School......
2.6.2006 5:03pm
Jack John (mail):
where Locke and the text of the Constitution vary

Yet no one has pointed to a variance. You just read Article I in contradistinction to, e.g., Seminole Tribe, which is good law.
2.6.2006 5:03pm
Jack John (mail):
There's no variance, there's a huge gap that is likely unreviewable.
2.6.2006 5:04pm
Jack John (mail):

Oh what's it called when agents of the executive violate the law?



How has the President violated the Constitution?
2.6.2006 5:05pm
Just Wondering:
I wonder if this case is relevant to the definition of "inherent power."
Swaim v. U S., 165 U.S. 553 (1897)
The Court found the President's authority to convene courts-martial to be an inherent power. Yet Congress has always regulated courts-martial, from the Articles of War to the UCMJ. Thoughts?
2.6.2006 5:06pm
Jack John (mail):
That falls within Orin's example: inherent power to conduct warranted searches. That says nothing about inherent power to conduct warrantless searches, which was my point.
2.6.2006 5:07pm
Kovarsky (mail):
Jack,

So now your position is that until I show you a case otherwise, you believe that just because something is part of the executive's exclusive authority, it automatically becomes nonjusticiable.

So lets share the research burden - I'll look for a case of exclusive executive authority that was justiciable, and you look for some authority saying that exclusive executive authority is always a SUFFICIENT condition for nonjusticiability (please don't provide more "examples" that just show that executive authority IS CAPABLE of furnishing the rationale for nonjusticiability).
2.6.2006 5:07pm
Jack John (mail):

So now your position is that until I show you a case otherwise, you believe that just because something is part of the executive's exclusive authority, it automatically becomes nonjusticiable.



No, my point is that there is no case law on this stuff because it has always been held nonjusticiable and booted. In those cases where there has been adjudication, you get a case that supports my position, like Klein or Tenet v. Doe. There would never be a case that says it is "always" the case -- that's the point; the Court always boots the cases under the pretense that it could review the cases if it needed to. In those few cases it does, it produces an Executive-friendly case.
2.6.2006 5:11pm
Medis:
Anderson,

On the subject of pardons, from Findlaw's annotated Constitution, citing an English history and 1820 Opinion of the Attorney General: "The President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the principal cause of James II's forced abdication."

And, of course, the pardon power explicitly does not extend to cases of impeachment, so the President cannot pardon himself.
2.6.2006 5:14pm
Anderson (mail) (www):
inherent power to conduct warrantless searches

Sigh. JJ, do you have any authority for this "inherent power to conduct warrantless searches"? Besides John Locke and the Barons of Runnymeade?

Because there *isn't* such a power, is the point. Presidents have doubtless done so, but that wasn't an "inherent power." It was "doing something without anyone's saying boo."

If I secretly kill someone and don't get caught, that does not mean that I have an inherent power to kill people.
2.6.2006 5:16pm
Kovarsky (mail):
There would be no substantive law on the underlying issue if the case was non-justiciable, but there would be case law on what constituted the basis for the non-justiciability ruling.

I think it's only fair that I read Klein before I go on, so I'll try to do that this evening.

But I also think it's only fair for you to admit that when you say that "in the few cases it does" you admit the both theoretic and practical possibility that an issue's status as "exclusively within executive authority" does not automatically render it non-justiciable.
2.6.2006 5:16pm
Jack John (mail):
No, I don't actually.

There is no such case. I do not believe any such case could ever exist.

The court says that it is acting prudentially sometimes, other times it says it is bound by Article III. Regardless of the language, it does the same thing: it doesn't hear such cases, except when it decides for the Executive.
2.6.2006 5:18pm
Jack John (mail):
And, no, it does not cite the criteria it uses to apply the doctrines. It just applies them and nods its head toward tradition.
2.6.2006 5:20pm
Kovarsky (mail):
Am I correct in understanding "doesn't hear such cases" to mean that "it adjudicates them nonjusticiable and does not reach the merits?" It's not that it doesn't "hear" them, correct?

And while you could be correct about the empirics (I haven't done a study here), at least formally the Supreme Court will rule on non-justiciability grounds on an exclusive executive power case, even if the tendency is to rule in favor of the executive.

At that point I don't see what we're arguing about. I think my only point has been this should not be non-justiciable simply because it is an executive question. If the supreme court rules for the executive on the merits of its separation of powers argument, fine, i'm happy to lose that way.
2.6.2006 5:25pm
Bobbie:
If FISA is unconstitutional, why does the Administration ever go to the FISA court?
2.6.2006 5:32pm
Jack John (mail):
will rule on non-justiciability grounds on an exclusive executive power case

Saying it's nonjusticiable is not ruling on the merits. It's bouncing the suit. But I don't even think you get that far. I can't conceive of anyone having standing to sue without having their lawyer sanctioned by Rule 11.

Presidents have doubtless done so, but that wasn't an "inherent power." It was "doing something without anyone's saying boo."

Only if you think the President has no power to intrepret the Constitution. That is plainly wrong.
2.6.2006 5:32pm
Tom Holsinger (mail):
I doubt there is any all-encompassing definition of a President's inherent authority under either form used by Professor Kerr, or that it is helpful to even try. IMO it isn't even fruitful to examine inherent Constitutional limitations - things a given branch cannot do. Examples would be:

A federal district court judge ordering that local school taxes be raised to pay for busing of children for purposes of racial desegregation (upheld - I don't recall the cite, but I think the city was East St. Louis);

The Supreme Court ordering that alien enemy combatant prisoners taken and held overseas be given habeus corpus hearings (Rasul v. Bush);

Congress ordering that executive branch officers conduct negotiations on a particular subject with specified foreign countries (held that they couldn't - 6 Fed.3d 648).

There just isn't agreement on the law here. It would be more accurate to say that a President's inherent authority is whatever non-statutory authority he successfully claims despite opposition by one or both of the other branches.
2.6.2006 5:32pm
Jack John (mail):

If FISA is unconstitutional, why does the Administration ever go to the FISA court?



Two words: As applied.
2.6.2006 5:33pm
Kovarsky (mail):
Bobbie,

There's a couple of questions here:

(1) Is FISA unconstitutional?

(2) If FISA is unconstitutional, is the president nonetheless bound to adhere to it before it is adjudicated as such.

I don't pretend to know the answer to (1), but people read too much into the degree to which the answer to (1) matters. That is in part because the answer to (2) seems adverse to the administration, and also an answer favorable to the administration on (1) doesn't resolve either the youngstown or the 4th amendment questions.
2.6.2006 5:34pm
Jack John (mail):

It would be more accurate to say that a President's inherent authority is whatever non-statutory authority he successfully claims despite opposition by one or both of the other branches.



Someobdy is listening. And in these situations, the court bows out, leaving it to Congress and the President to bicker. Hence these hearings.
2.6.2006 5:35pm
JunkYardLawDog (mail):
Anderson, the only Justice Thomas or any sane person watching all 3 days of sworn testimony learned was that Anita Hill is a liar. A person who told lies to friends to provide cover for the failing legal career that was once thought to be so promising BEFORE she actually entered the workforce.

Her, lies certainly paid off for her financially, ever since.


A president has sold Presidential Pardons, Bill Clinton sold parons for far less than your $1 million. When congress indicated they wanted to provide some oversight on these Pardons, the Clinton administration gave them the finger and said Congress had no power to oversee these bought and paid for pardons. They told Congress they wouldn't answer a single question, provide a single witness, or provide even 1 word of documents, save and except a xerox copy of Bill's right fist with index finger extended.

I'm glad you are at least trying to engage in some kind of discussion of ideas after your bigoted and racist stereotypes and attempts at humor fell so pitifully flat. However, your continued lame attempts at condescension make your points and your posts quite questionable.

Graciously, Duh! was smart enough to quickly realize just how far out of his/her depth he/she was and decided to STFU. Perhaps you could learn something from Duh! since you are obviously having trouble even reading Jack John's posts.

Says the "Dog"
2.6.2006 5:37pm
Medis:
Just Wondering,

That is a very interesting case. If I understand the facts correctly, the Court was considering a court martial directly convened by the President. The Court held that the President did have the inherent power as Commander in Chief to convene such a court martial. But it also inquired at length into whether the court martial had in fact complied with the relevant Articles of War, ultimately holding that it had.

So, although it did not quite reach the issue, the Court did in fact seem to assume that Congress could regulate the President's use of this inherent court martial power through the Articles of War. Of course, that is a pretty unassailable assumption in light of the unbroken practice you note. But it does contradict the notion that if the President is using his inherent war powers, Congress is somehow disabled from regulating the same subject matter.

As an aside, I always find it amusing when people talk about electronic surveillance as a core war power, and then dismiss the UCMJ as something that is at most peripheral to the conduct of war. I think that if you asked most real military officers, they would suggest that the subjects covered by the UCMJ, including things like courts martial, are well within the core of their duties as military commanders.
2.6.2006 5:37pm
Anderson (mail) (www):
Only if you think the President has no power to intrepret the Constitution. That is plainly wrong.

"Only" doesn't mean what you think it means.

You can make the above a correct statement of my view by adding a word:

"Only if you think the President has no unreviewable power to interpret the Constitution."

As for the exchange with Kovarsky, I personally find it incredible that the Court, faced with an aggressive Executive and a Legislature supine with political sympathy, would simply shrug and say "oh well." Perhaps I'm naive.

If that's what the Court does, the Constitution can be declared dead, and we can start over with a document that takes "faction" into account.

(Gotta go---it's been fun!)
2.6.2006 5:41pm
Medis:
As an aside, of course the Court does not always duck executive powers cases if the executive is going to lose. Otherwise, we wouldn't be talking about cases like Ex parte Milligan, Youngstown, and Hamdi.
2.6.2006 5:43pm
Jack John (mail):
There is no coherent theory of the Constitution that holds everything the President does is reviewable by another branch.
2.6.2006 5:44pm
Kovarsky (mail):
Jack

Please reassure me that you are not deliberately misrepresenting what I'm saying. I could not be more clear. A ruling on non-justiciability is still "hearing the case," it's just a "hearing" of the case that does not reach the underlying merits of the claim. It still hears and "reaches" the justiciability issue itself; it just "reaches" the merits of the justiciability issue in order to avoid reaching the merits of the claim if it were deemed justiciable.

It's not like a rescinsion of cert., or something like that, which your language seems to be implying.

Out of curiousity, what is the basis for your belief in this approach - because it can't be the usual anti-judicial-review notion of institutional competence (which applies well in individual rights-type cases and many cases of statutory interpretation), but is really a fish out of water on the separation of powers arguments. I mean what's the affirmative argument for why congress and the president's ability to broker a power compromise (forget the real-life fact that they can't) is a more institutionally competent means of alllocating institutional power itself than is reviewed by a court not adjudicating its own institutional authority.
2.6.2006 5:46pm
Jack John (mail):

Ex parte Milligan, Youngstown, and Hamdi



Hmm, if I recall, Youngstown was not foreign affairs, but domestic; Hamdi was not the structural Constitution; Milligan was not exclusive executive power. Here we are talking about all three. Why do you always make these transparently bad arguments, Medis?
2.6.2006 5:46pm
Jack John (mail):
Try institutional dignity.
2.6.2006 5:47pm
Jack John (mail):

But it does contradict the notion that if the President is using his inherent war powers, Congress is somehow disabled from regulating the same subject matter.


This is a straw-man. No one here said war = Congress has no power.
2.6.2006 5:49pm
Michael B (mail):
"There just isn't agreement on the law here. It would be more accurate to say that a President's inherent authority is whatever non-statutory authority he successfully claims despite opposition by one or both of the other branches."

As succinct and summary a statement as any as to what has been forwarded, and coherently so, herein.
2.6.2006 5:58pm
duh! (mail):
Jackie poo is really straight out of the comic books, isn't he folks...

His motivating factor is institutional dignity? Honestly, I did laugh at that though so maybe his sense of humor is getting better.
2.6.2006 5:58pm
Kovarsky (mail):
Jack,

what do you mean?

thanks!
2.6.2006 6:02pm
Jack John (mail):
The same kind of dignity concerns that motivate sovereign immunity doctrine.
2.6.2006 6:13pm
Kovarsky (mail):
huh?

i can't think of a context in which "institutional dignity" is less dispositive of a dispute than when that dispute is between the federal administration and the federal legislature?
2.6.2006 6:15pm
Jack John (mail):
What does dispositiveness have to do with my belief? You asked me an irrelevant personal question; there's your answer.
2.6.2006 6:25pm
Kovarsky (mail):
Look dude,

I've sat here and allowed you to systematically evade a very obvious error and/or engaged in an extended deliberate misrepresentation about just what a judgment on justiciability grounds means.

You've cherry-picked point after point with me, electively and systematically chosing only to answer those points for which you feel your defense sounds strongest rhetorically. I said nothing about this pattern.

You are sitting here defending a theory of judicial review that, if you really work in the justice department, you know full well requires defense and not dismissiveness, as it is disfavored by most scholars. The base of that theory, incidentally, draws its force from the proposition that the court should be deferring to Congress in grey areas becuase it is more "institutionally competent" - as an elected body - to adjudicate certain types of disputes.

I then questioned the strength of the insitutional competence argument here, where it is not the court versus the congress, as your already-disfavored-scholarly-theory contemplates, and is not the court versus the executive, which would be the next chord on the logical progression of that already-disfavored-scholarly-theory, but instead what sort of work the institutional competence rationale does when you are talking about congress - the most majoritarian branch of government - opposes the president, and why it should be obvious that the executive is due deference either because there is some substantive standard of review that gives it to them or because the controversy is nonjusticiable, even according to the already-disfavored-scholarly-theory's own terms.

so i'm going to ignore the asinine proposition that a question about the argument most central to the theory you cite - institutional competence - is an "irrelevant personal question" and ask that you answer it with only a fraction measured consideration i appear to have given to each and every thing you've posted here.
2.6.2006 6:39pm
Dave Hardy (mail) (www):
*I* am Osama bin Laden, and ALL of you are going to be wiretapped by NSA as a result of participating in this thread. Bwa-ha-ha-ha-ha!

Al-Queda assassinates nuclear reactors.

[Power consumption at NSA suddenly doubles}
2.6.2006 6:57pm
Dave Hardy (mail) (www):
Sigh. JJ, do you have any authority for this "inherent power to conduct warrantless searches"? Besides John Locke and the Barons of Runnymeade?

Because there *isn't* such a power, is the point. Presidents have doubtless done so, but that wasn't an "inherent power." It was "doing something without anyone's saying boo."


I think Prof. Kerr, in starting this post, made a very useful distinction between two meanings of "inherent power:" (1) executive power to act, in the absense of Congressional authorization (i.e., enforce the laws by getting a search warrant, in the years before Congress in 1917 enacted a statute saying he could do so), which probably would be subject to Congressional limitation (if and when they do so) and (2) presidental powers that cannot be regulated by Congress. Congress can't undo a pardon, or restrict its issuance.

It might be useful to think about the limits on (1). Presumably the executive could enforce the law by getting search warrants without legislative authorization, but not enforce it by assassinating criminals.
2.6.2006 7:09pm
Wintermute (www):
Good grief! And I thought Orin was talking about something like federal common law in observance of Fourth Amendment requirements, which, after Katz and then Nixon, Congress felt it needed to legislate in derogation and/or supplementation of. I'd maintain Katz stands for the principle that electronic surveillance is an unreasonable search without a warrant, whereas the Court has ratified "exceptions" that other kinds of search are reasonable, notably in the border context, where such authority makes sense to enforce customs and certain other laws, akin to the old writs of assistance (which were sometimes abused). The Court has the ultimate authority to decide what the Fourth Amendment requires and doesn't require as regards covered persons; but the problem in these situations is getting a case on the current facts into court.
2.6.2006 7:09pm
Just an Observer:
From today's transcript:

DEWINE: ... What if Congress passed a law which just excluded FISA from any electronic surveillance of international communications where one party to the communications is a member of or affiliated with Al Qaida or a related terrorist group; and further, if we went on and provided that there would be normal oversight by both the House and the Senate Intelligence Committee, periodically that the administration would report to the Intelligence Committees on the progress of that program?

DEWINE: We, obviously, have the ability within the committee to keep such things classified. We do it all the time.

What would be your reaction to that? Is that something that would be possible from your point of view?

GONZALES: Well, Senator, I'll repeat what the president has said, and that is to the extent that Congress wants to suggest legislation, obviously, we'll listen to your ideas.


That last remark, delivered with a straight face, spoke volumes about the relationship of the two branches today. Gonzales and Bush think of the legislative process exactly backwards.

Oh well, at least the AG didn't rule DeWine's proposal out of order on a point of parliamentary procedure.
2.6.2006 7:18pm
Wintermute (www):
Hey, let me add this from the Douglas/Brennan concurrence in Katz, responding to White's concurrence. Long for a comment but so relevant:

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring.

While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters.

Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.

There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, 3, gives "treason" a very narrow definition and puts restrictions on its proof. But the Fourth Amendment draws no lines between various substantive offenses. The arrests in cases of "hot pursuit" and the arrests on visible or other evidence of probable cause cut across the board and are not peculiar to any kind of crime.

I would respect the present lines of distinction and not improvise because a particular crime seems particularly heinous. When the Framers took that step, as they did with treason, the worst crime of all, they made their purpose manifest.

*********************************

Now I hear 'em saying, "But this is more than national security or treason or sabotage, this is war!"
2.6.2006 7:29pm
Medis:
JaO,

I really wonder if the Administration has decided to call what it views as a congressional bluff by refusing to compromise in any way.
2.6.2006 7:38pm
Jack John (mail):
What you said was:


Out of curiousity, what is the basis for your belief in this approach - because it can't be the usual anti-judicial-review notion of institutional competence


Given that is was just to satisfy your curiosity and probed my "belief", I took it as an irrelevant personal aside. My response was: "The same kind of dignity concerns that motivate sovereign immunity doctrine." Notice that I said "dignity concerns". I did not say institutional competence.

So your subsequent post makes no sense:



so i'm going to ignore the asinine proposition that a question about the argument most central to the theory you cite - institutional competence - is an "irrelevant personal question



I didn't cite an institutional competence argument; you raised it in in asking me an irrelevant question about my personal beliefs.
2.6.2006 8:14pm
Kovarsky (mail):
"why do you think institutional integrity matters here" is no less a question about institutional integrity than a question to stephen hawking involving his thoughts on the big bang would be about physics.

you are obviously just bent on being petulant and disagreeable, and aren't really interested in having a meaningful exchange with me. i'm just a little embarassed that i realized this later than has every other person with whom you've interacted on this thread, you predictable soundbite.
2.6.2006 8:29pm
Dilan Esper (mail) (www):
"Youngstown was not foreign affairs, but domestic; Hamdi was not the structural Constitution; Milligan was not exclusive executive power."

That's misleading at best. While the government in Youngstown disclaimed reliance on the Commander in Chief power, it was decided in the context of the Korean War and it would have been plenty easy for the Supreme Court to recognize executive authority to override the Taft-Hartley Act due to the pending hostilities had such power existed.

Similarly, while Hamdi was decided on statutory grounds, the Court, to get there, had to reject the government's exclusive Article II power and plenary delegation under the AUMF arguments. Indeed, it is precisely on this ground that Justice Thomas dissented and said that the President DID have exclusive power. If your statement were correct, it would mean that Thomas was dissenting on a ground that had nothing to do with the case!

There is no reasonable reading of Hamdi except that the Court rejected the Thomas/Administration position on plenary executive authority under Article II 8-1.

As for Milligan, it's really hard to know what it still stands for after Quirin and Eisentrager limited it, and then Hamdi limited Quirin and Eisentrager. But I think it is at least safe to say that Milligan expresses skepticism that the Commmander in Chief power may trump expressly delegated congressional powers (such has to suspend habeas) in a situation where it is possible for Congress to exercise those powers. To that extent, it does help to refute your argument-- after all, Congress has been granted broad powers to declare war, regulate the conduct of the armed forces, and make rules for captures on land or water. It wouldn't seem like Milligan would allow the executive plenary powers even in the conduct of warfare where there is sufficient time and opportunity for Congress to involve itself.

The truth is, you have to ignore quite a lot of express language in the Constitution to get to the Thomas position re: exclusive executive power-- as well as the recognized canon of construction that more specific language (such as the grant of various war powers to Congress) trumps more general language (making the President commander-in-chief). I think you and Thomas are interpreting a Constitution the way you would like it to read, but which has little relationship to the one that actually govers our country.
2.6.2006 8:37pm
Just an Observer:
Medis: I really wonder if the Administration has decided to call what it views as a congressional bluff by refusing to compromise in any way.

I have the same feeling. I expected Gonzales to stonewall the Democrats, but was interested that he also blew off Graham and DeWine when they extended feelers for a legislative blessing. From the contours DeWine described, their proposal would effectively bless what the administration says it has been doing de facto.

But what may be more important to Bush is establishing the precedent that the President can ignore congressional complaints with impunity and just do as he pleases. With one-party control of both houses, he may get away with it.

The moderate Republicans who, to varying degrees, have challenged the White House on this matter are not taken terribly seriously downtown.

The one Republican senator, I think, who might be able to stand up on the issue is McCain. AFAIK, he has not committed himself. That is why it was important that Graham tied the executive power issue to the torture controversy today. Notably, Gonzales refused to rule out defying Congress on this subject under Bush's theory of executive power, either. On the torture issue, McCain's amendment carried the Senate 90-9.

If Bush completely stiffs the GOP moderates, they might make common cause with Democrats on renewing the Patriot Act, as they did in late December.
2.6.2006 8:48pm
Jack John (mail):

I think you and Thomas are interpreting a Constitution the way you would like it to read, but which has little relationship to the one that actually govers our country.



Um, right. Nevermind that I am on point with Klein...I think you readings of those case are way off. Youngstown is quite obviously domestic, and it would take a loopier theory of the Constitution than Clarence Thomas' to "to recognize executive authority to override the Taft-Hartley Act due to the pending hostilities".

Your reading of Milligan is likewise suspect, because "But I think it is at least safe to say that Milligan expresses skepticism" is just a way of saying "I'm going to read into the case whatever I feel like reading into it."

"There is no reasonable reading of Hamdi except that" -- I think Hamdi is up for grabs now that O'Connor is off the Court, and the DOJ interpretation of Hamdi is not unreasonable. Your claim that there is no other reasonable reading of it is false and self-serving.

And Justice Thomas did not rely on Klein, so I am not sure why you are lumping him in with me, unless you're afflicted by the same socialization problem that afflicted Anderesen earlier.
2.6.2006 9:00pm
Jack John (mail):

as well as the recognized canon of construction that more specific language (such as the grant of various war powers to Congress) trumps more general language (making the President commander-in-chief)



This is a hilariously bad argument. Article I is not of greater power than Article II because Article I has more words in it.
2.6.2006 9:02pm
Jack John (mail):

The truth is, you have to ignore quite a lot of express language in the Constitution to get to the Thomas position


Good thing I'm not making the Thomas position.
2.6.2006 9:04pm
Jack John (mail):

you are obviously just bent on being petulant and disagreeable, and aren't really interested in having a meaningful exchange with me.



Dude, you had the nerve to challenge an argument based on Klein -- by your own admission! -- without having first read Klein! How seriously should you be taken?
2.6.2006 9:14pm
Medis:
Dilan,

And even Thomas in Hamdi implied he might reject the exclusive powers argument with respect to Congress as opposed to the Courts ("Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive."). So, I'm not sure the "moderated monarchy" view has a single vote in the Court.

JaO,

It is an interesting situation. From the questions so far, I'd say an easy majority of the Committee thinks the 2001 AUMF argument is pretty much BS, and they don't buy the Article II stuff either--at least not after a period of years. What is less clear is whether they could agree on any sort of remedy in the face of a completely uncompromising Administration.

And I agree that Graham may be the key player, particularly if he can swing McCain. If I were McCain, I certainly wouldn't like the answers (or lack thereof) that Graham is getting.
2.6.2006 10:36pm
Just Wondering:
Dilan said:

While the government in Youngstown disclaimed reliance on the Commander in Chief power, it was decided in the context of the Korean War and it would have been plenty easy for the Supreme Court to recognize executive authority to override the Taft-Hartley Act due to the pending hostilities had such power existed.

I believe the government in that case did expressly relied on commander-in-chief authority.
2.6.2006 10:55pm
minnie:
"I cannot speak on aspects that the president has not yet confirmed"-- just said by the AG. If there was any question whether or not there was more going on, I think he just confirmed it. He is also getting visably shaky.

Yes, there is no question that at a certain point in the hearings, his earlier confident posture began to slip away and he became noticably flustered. This brings up a very interesting point. The particular statement above is quite revealing, much more revealing than it really had to be. I am going to venture a guess, but I would have to go back and read his entire testimony and check the time line to verify if I am accurate in this guess, that something he said while attempting to equivocate in the early part of his testimony was an outright lie. When, hypothetically, Rove blackberryed the WH staffer who was sitting behind AG and that staffer passed AG a note, (remember that?) AG realized that he would have to take a different position very quickly, or that lie might get exposed. It's possible that was the point at which he started being less "careful" about his use of phrases such as "this program", or "the program about which I am talking", as he was told by his advisers that the only way out was to come right out and state that he had been limiting himself to the only program the President had actually confirmed existed, suggesting to all who were listening that there were, in fact, other programs.

Yes, the more I think about it, as the hearings went on he not only stopped trying to talk around the issue and obscure that there are other programs which have not been leaked, but he himself was the one who deliberately brought it to everyone's attention by his change of phraseology. That led to his complete refusal to answer later on, when the Democratic Senators finally realized what he was saying and asked him outright:

"Are we doing it?" "Are we doing it?" barked Leahy. No answer.

Orin, didn't you get that same impression? I just realized it when I saw the post above, as it had been at the back of my subconsious mind, and the above post brought it forward. Something went a little wrong, a little unexpected in the questioning (and note, none of the "prepared questions" which have been circulating on the Internet in the last few days have spoken to this particular issue),and he misspoke, or outright lied when the early questions touched upon this issue. That must have caught the Administration off guard, but not wanting to go down the actual "perjury road" and all that would lead to if anyone was ever to find that out, they decided to cut bait and come up with a cover, that being that his early answers (lies?) were specifically addressing only the "program that the President confirmed." If this theory is correct, I have to hand it to the adminstration's advisers for some very fancy footwork.

Sorry if this is an incoherent post (I am tired) and maybe I am being too inarticulate for anyone to understand what I am saying, but I think Orin will.

Does anyone remember at what point in the testimony he asked if he could have a break? Was it after he had been handed that note?
2.7.2006 2:16am
Anderson (mail) (www):
JJ, I've *read* Klein, &it doesn't work for you. And you're being a bit of a fake by completely failing to argue how it *does* work.

You've cited Klein; we've said "fine, but that doesn't get you anything in the present debate." Either quote your language from Klein &explain how it applies, or quit Kleining.

P.S. to Kovarsky: Your patience was honestly admirable.
2.7.2006 9:42am
Jack John (mail):

Anderson: I looked up Klein, and ... it's certainly sweeping as to the pardon power,



My argument is simple: if the pardon power, then any and all Executive powers functionally equivalent to the pardon power as limned in Klein. Believe it or not, but you agree with my argument.
2.7.2006 2:14pm
Medis:
A couple more interesting tidbits about the pardon power:

In addition to allowing neither anticipatory pardons nor pardons for impeachment, the presidential pardon also cannot be used for civil liability, nor for contempt of court. Of course, depending on how the NSA issue evolves, any or all of these limitations may become relevant.
2.7.2006 2:39pm
Medis:
Anderson,

You'll understand the relevance of Klein when you find the secret "emergency powers" section of the Constitution. Apparently it was written in invisible ink on the back of the original parchment, using a formula derived from John Locke's work on alchemy.
2.7.2006 2:44pm
Anderson (mail) (www):
Apparently it was written in invisible ink on the back of the original parchment, using a formula derived from John Locke's work on alchemy.

LOL, Medis. I guess that is the story behind Article 11.

Dan Brown, are you reading this blog?
2.7.2006 3:05pm
Dilan Esper (mail) (www):
"Um, right. Nevermind that I am on point with Klein...I think you readings of those case are way off."

Really? Klein holds that where the Constitution textually commits a specific power to the President's exclusive discretion, Congress can't regulate it. The pardon power is such a power.

But the Commander-in-Chief power is obviously NOT such a power, because the SAME Constitution gives Congress all sorts of powers over the military, while it gives Congress no power over pardons.

So your Klein argument is completely meritless.

"Youngstown is quite obviously domestic"

Really? Why do you suppose Truman seized the steel mills?

Your reading of Milligan is likewise suspect, because "But I think it is at least safe to say that Milligan expresses skepticism" is just a way of saying "I'm going to read into the case whatever I feel like reading into it."

I don't think Milligan is easy to interpret given later cases. But if it means anything as a precedent, it at a minimum means what I noted it means, because that's the only way to explain its holding given the constitutional text at issue.

"There is no reasonable reading of Hamdi except that" -- I think Hamdi is up for grabs now that O'Connor is off the Court, and the DOJ interpretation of Hamdi is not unreasonable."

FYI, just because the court personnel changes doesn't make Hamdi an invalid precedent. Unless and until the Court overrules it, it is still good law, binding on the DOJ. You might have heard somewhere that it is entirely the provice of the judiciary to declare what the law is.

"And Justice Thomas did not rely on Klein, so I am not sure why you are lumping him in with me, unless you're afflicted by the same socialization problem that afflicted Anderesen earlier."

No, Justice Thomas is smart enough not to rely on Klein, but he's the only one on the Hamdi Court that is even close to your views.
2.7.2006 4:46pm
Dilan Esper (mail) (www):
"as well as the recognized canon of construction that more specific language (such as the grant of various war powers to Congress) trumps more general language (making the President commander-in-chief)

"This is a hilariously bad argument. Article I is not of greater power than Article II because Article I has more words in it."

You miss the point. This isn't a wrestling match between Articles I and II. Rather, the general commander-in-chief language can't mean what you and Thomas say it means, because that would render all those specific power grants to Congress in Article I nugatory.
2.7.2006 4:47pm
Jack John (mail):

Dilan the Illiterate: Rather, the general commander-in-chief language can't mean what you and Thomas say it means, because that would render all those specific power grants to Congress in Article I nugatory.



1. I am not Thomas, nor do I make his argument. Get over it.
2. When did I rest my argument on the Commander-in-Chief Clause? Can you read? I nowhere mention it!
2.7.2006 8:02pm
Jack John (mail):

Dilan the Illiterate: Klein holds that where the Constitution textually commits a specific power to the President's exclusive discretion, Congress can't regulate it.



Yes, and my argument is based on the Vesting Clause and the Take Care Clause, not the Commander-in-Chief Clause, so it fits withing your interpretation of the holding of Klein. Beyond that, your interpretation of its holding is self-serving and at too high a level of generality for Klein to constitute precedent.


Dilan the Illiterate: You might have heard somewhere that it is entirely the provice of the judiciary to declare what the law is.



Marbury may stand for the principle of judicial finality, but it by no means stands for the principle of judicial supremacy or exclusive judicial interpretation, which the plurality in Hamdi you so covet, by the way, makes clear.


Dilan the Illiterate: No, Justice Thomas is smart enough not to rely on Klein



Ok, maybe I should send him a letter....


Dilan the Illiterate: Really? Why do you suppose Truman seized the steel mills?



Because he thought Vinson could get him the votes.
2.7.2006 8:08pm
Dilan Esper (mail) (www):
Jack:

1. Stop the ad hominem attacks. Calling me "illiterate" adds nothing.

2. The vesting and "take care" clauses do not confer absolute power to the President any more than the commander-in-chief clause does. First, let's take the "take care" clause. That says that the executive must take care that the laws be faithfully executed. That's not a power-- that's a duty. And to the extent it does confer power, by DEFINITION, it confers no power to violate a congressional statute. It simply is Orwellian to argue that the President is taking care that the FISA statute is faithfully executed by refusing to obey it.

As for the vesting clause, that vests the executive power in a President. This, to me, is just like the commander-in-chief argument. Whatever "the executive power of the United States" is, it CANNOT include all regulation of military affairs and warmaking, given that some of those powers are specifically delegated to Congress and are thus LEGISLATIVE powers.

3. Marbury DOES stand for the principle of judicial supremacy when it comes to interpreting the Constitution. That's what the Court means when it says it is entirely the province of the judiciary to say what the law is. Indeed, the whole point of the "political question" doctrine is that it is an EXCEPTION to the general rule that constitutional questions are subject to judicial review.

In any rate, you are changing the subject egregiously here. You made a ridiculous statement-- that Hamdi was somehow not good law or "up for grabs" because there has been a change of court personnel since then and because the Department of Justice disagrees with the Supreme Court. These statements are flat wrong. The Court has repeatedly held that only it can overrule its precedents. See, e.g., Agostini v. Felton. Changes in court personnel-- even where those changes replace justices in the majority with justices who would not have decided a precedent in the same way-- do not call case precedents into question, unless and until the Supreme Court overrules them, and the Court will only do that when there is a strong showing sufficient to override concerns of stare decisis. See, e.g., Planned Parenthood v. Casey.

Finally, the Department of Justice disagrees with the Supreme Court on many cases. Nonetheless, under the very "take care" clause that you cite, the Executive, and all of its subdivisions, including the DOJ, are required to enforce and abide by Supreme Court decisions whether or not it agrees with them. For instance, the Attorney General may no longer seek to impose sanctions on Oregon doctors for participate in state authorized assisted suicides, even though the DOJ interprets the law as permitting such sanctions to be imposed. The DOJ's interpretation of the law is simply subordinate to controlling Supreme Court precedent. If you don't like that, move to a country that doesn't have a Marbury v. Madison. But here in the US, this has been established for two centuries, and I don't know why people are still trying to question its legitimacy.

4. Apparently you took my rhetorical question about Truman's seizure of the steel mills seriously. The point is, Truman was exercising a purported wartime power to seize steel mills to ensure a continuous production of needed materials during a war. By the way, I don't think it's an implausible claim that what Truman was doing WAS incident to fighting a war. Imagine what would have happened in World War II, for instance, if there had been a massive steel strike during the early part of the war when we were still short on materiel. Being able to fight a war, in some sense, requires being able to control the means of production.

Yet, the Supreme Court decisively rejected that Truman had the inherent power to circumvent the procedure in the Taft-Hartley Act for settling labor disputes. In other words, Truman may have had an inherent power, but unlike the pardon power in Klein, this was a power that was subject to Congressional regulation. And that makes perfect sense.

May I suggest to you that if you want to see more clearly the problem with your Klein argument, you look at the language of the political question cases like Baker v. Carr and Powell v. MacCormick. In those cases, the Court held that yes, there can be cases that are nonjusticiable due to their sensitive subject matter, but ONLY in situations where the Constitution expressly commits their resolution to another branch of government. Thus, in Goldwater v. Carter, the issue of withdrawing from treaties is committed to the political branches. But many other issues-- including many national security issues, and indeed, including the scope of the President's war powers in Hamdi-- are NOT expressly committed to other branches. In those cases, the judiciary retains its full power to resolve cases or controversies.

The pardon power in Klein is like the treaty power in Goldwater and unlike the war powers in Hamdi-- the Constitution commits its exercise exclusively to another branch of government. But such exclusive vesting is the exception, not the rule, and is found to exist only when there is a specific clause of the Constitution which addresses the issue. And where there are clauses that indicate a power is shared (as is the case with war powers), that argument is a nonstarter.
2.7.2006 9:24pm
Jack John (mail):
I'll keep this short.

You are reading too much into the Oregon case.

Your interpretation of what "Executive" means is different than mine. And I don't think you can read the Take Care Clause and the Vesting Clause separately; your interpretation is thus question-begging. There is no constitutional reason why you cannot add the Take Care Clause to other clauses much like the Necessary and Proper Clause and the Supremacy Clause, indeed, as the Constitution is the law, you must read the Take Care Clause in conjunction other constitutional provisions.

General powers to legislate are not specific orders or commands.

I called you illiterate because you ignored my arguments and responded to straw-men. You obviously did not read them. And, for someone who accuses others of parroting Clarence Thomas, perhaps you shouldn't plagiarize pathetically weak arguments from Richard Epstein.

Anything else you wrote was irrelevant to my actual argument, though quite relevant to the straw-men you are arging against, but the fact that you think no branch but judiciary can interpret the Constitution says it all. Not even FDR believed that, and he's responsible for what some fejeral judges call America's Socialist Revolution.
2.8.2006 1:38am
Jack John (mail):

such exclusive vesting is the exception, not the rule, and is found to exist only when there is a specific clause of the Constitution which addresses the issue.



There are two, which, when read together intelligently, do.
2.8.2006 1:40am
Jack John (mail):

It simply is Orwellian to argue that the President is taking care that the FISA statute is faithfully executed by refusing to obey it.



Only if you ignore that the Vesting Clause is the law and that it has meaning.
2.8.2006 1:45am
Dilan Esper (mail) (www):
Jack:

1. I am not reading too much into the Oregon case. I am using the Oregon case as one of many examples of where the DOJ takes a position, loses in court, and then has to obey the Court's order. This happens all the time. And it refutes your argument that the DOJ could continue to assert its interpretation of the law as the law of the land after it was rejected in Hamdi.

2. I don't have a full definition of "Executive". I don't think separation of powers cases are easy. Are AdministrativeAgencies "executive"? "Legislative"? "Judicial"?

But it is easier to define what "Executive" power does not contain-- anything granted to and exercised by Congress under Article I. Then, if Congress exercises that power, the Executive may act within the scope of the delegation. Indeed, this is what the "take care" clause means, by IT'S PLAIN LANGUAGE. (You know, you keep on asserting esoteric meanings of constitutional provisions, but you never explain how you get them from the actual language.) Congress passes a law, and then the Executive takes care that the law be faithfully executed.

So Congress has legislative authority over the military and warmaking, under the PLAIN LANGUAGE of Article I Section 8. Congress passes laws to regulate that activity, and then the Executive must take care that the laws be faithfully executed. A lot of separation of powers questions are hard, but this one's easy.

Does the executive have inherent powers? Sure. But whatever the scope of those inherent powers is, they cannot trump Congress' EXPRESS POWER TO LEGISLATE in these areas under Art. I Section 8.

This is Constitutional Theory 101. And Klein doesn't apply because the Pardon power is specifically granted to the executive AND nothing in Article I grants Congress any authority to muck with it.

3. Your theory, as I understand it, is that the Executive power vested in the President is itself a law, and that the President must take care that it be faithfully executed. But that is completely circular! It begs the question-- if a particular power is not exclusively vested in the President by the vesting clause, say, because ARTICLE I SECTION 8 EXPLICITLY GRANTS CONGRESS THE POWER TO LEGISLATE IN THAT AREA, your "take care" argument can't shift the power back out of Article I and into Article II. And not only that, it gets worse, because the "take care" clause not only doesn't take the power back away from Congress, but it REQUIRES the President to follow the laws passed by Congress even if he thinks they are terrible laws!

4. I didn't plagiarize anything from Richard Epstein (who, I believe, makes a different argument about the commander-in-chief clause anyway). All this stuff is pretty much high school civics. Everyone learns in school-- or should learn-- that the "take care" clause requires the President to be subordinate to the law, and it was an express repudiation of the English concept that the King was the law and could not be said to violate it. If I am "plagiarizing" anyone, it is the framers of the Constitution.
2.8.2006 2:20pm
Colin:
Jack John, I wonder if you are aware of how severely your unprofessional tone detracts from your arguments? In this thread alone you've called another poster illiterate and accused him of plagiarism merely because he disagrees with you. I, for one, have become sorely tempted to simply skim past your posts; aside from being often non-responsive, lately they've been insulting and crass. If you are interested in persuading your readers, rather than simply announcing your opinions, you might consider the off-putting effect of your tone.
2.8.2006 4:23pm