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The Forgotten Footnote Four:
Those who believe the President has inherent Article II authority to conduct foreign intelligence monitoring in violation of FISA often rely for authority on United States v. Truong, 629 F.2d 908 (4th Cir. 1980). For example, the DOJ's defense of the program cites Truong (among other cases) for the view that "the President has inherent constitutional authority, consistent with the Fourth Amendment, to conduct searches for foreign intelligence purposes without securing a judicial warrant."

  As far as I know, however, believers in the strong Article II argument have not mentioned the very interesting footnote four of the Truong case. This footnote is particularly relevant, as it addresses the effect of the then-recently enacted FISA statute on the Court's analysis. FISA wasn't directly implicated in the Truong case because the monitoring had occurred before the statute was passed. But in the footnote, the Fourth Circuit explained why the Court didn't impose a Fourth Amendment requirement on limited foreign intelligence monitoring even after Congress had passed FISA.

  Here is the explanation for the Court's deference:
    While [FISA] suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President. The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary, inexpert in foreign intelligence, to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision. Such an attempt would be particularly ill-advised because it would not be easily subject to adjustment as the political branches gain experience in working with a warrant requirement in the foreign intelligence area.
(emphasis added)

  So here is my question for believers in the strong Article II argument: If Congress has no legitimate role in regulating foreign intelligence monitoring, why is the United States Court of Appeals for the Fourth Circuit stepping aside so that "the political branches" (plural) can "reach the compromises" as part of "the legislative process"? Doesn't this necessarily mean that the Fourth Circuit thought "the compromises" of FISA were binding on the Executive Branch?

  I look forward to reading careful, focused, and thoughtful responses to this question.
William Spieler (mail) (www):
And I look forward to winning the lottery.
2.13.2006 4:02pm
Grand CRU (mail):
Is a political compromise binding in the same sense that a judicial opinion or a treaty is binding? Not to play semantics games, but what gets me is what is meant by binding. Just like executive agreements between heads of state, something can be "binding," and yet revocable at-will...?
2.13.2006 4:02pm
William Spieler (mail) (www):
Heh, that probably came off as snarky. I suppose I'm just bitter over the signal to noise ratio regarding FISA.
2.13.2006 4:03pm
M. Lederman (mail):
Great minds really thinking alike today. See footnote 11 of this, and page 9 of this.
2.13.2006 4:14pm
Medis:
There is also a variant on the "strong Article II" argument which suggests that in a Category III case involving foreign/military affairs, the courts should not apply Jackson's Youngstown rule, but rather some sort of alternative "balancing" test. This idea appears in the Roberts and Cunningham letters, as well as in many comments here.

I think that such a rule would REALLY run counter to the reasoning in this "forgotten footnote," more so even than a complete reversal of the Category III rule (the reversed rule would subtract the President's inherent powers from Congress's enumerated powers when they overlapped, rather than the other way around). In other words, such a rule would actually require courts to substitute their own preferred compromises for the compromises signed into law by the political branches, all under the guise of doing constitutional analysis.

And in that sense, I wonder if people advocating a "balancing" alternative to Jackson's Category III rule have really thought through how much decisional power that rule would end up placing in the hands of the courts.
2.13.2006 4:15pm
Anderson (mail) (www):
I think "strong Article II" advocates would cheerfully embrace footnote 4 and Prof. Kerr's analysis thereof.

"Why, yes, it's left to the Congress and the Executive," they would say. "So it's up to the Congress to stop the President if they believe that he's overstepping."

Secure in the well-founded opinion that the Republican-held Congress won't say boo.
2.13.2006 4:18pm
Haynesworth:
The first paragraph of footnote 4 indicates that this passage is less broad than the selective quotation makes it appear:

"The Act does not, however, transport the traditional Fourth Amendment warrant requirement unaltered into the foreign intelligence field. The statute does not contain a blanket warrant requirement; rather, it exempts certain categories of foreign intelligence surveillance. 50 U.S.C. s 1802. Nor does the statute require the executive to satisfy the usual standards for the issuance of a warrant . . . ."

This introduction presents a decidedly limited view of FISA's substance.

In addition, the footnote as a whole modifies the following sentence in the opinion's body:

"In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance."

Those references to earlier parts of the opinion describing the executive's unique function and ability suggest to me that the quoted passage simply was a way of explaining that courts are not capable of making such judgment calls. Hence, "beyond the constitutional minimum . . . ." Also, I think "FISA suggests that it is possible" refers to FISA's existence, not its effectiveness or supremacy vel non; nothing in the passage indicates that Congress can or cannot cabin the executive's authority.

That leads me to the beginning of your post, with its reference to "Article II authority to conduct foreign intelligence monitoring in violation of FISA." Two problems with this: (1) FISA actually was not violated (though this may depend on the technical details of the program), and (2) no constitutional power can be said to "violate" a mere statute. For example, can the President be "violating" the War Powers Act/Resolution by sending troops into combat without Congress's approval? I highly doubt it, if post-Vietnam practice is any indication, which is all the more persuasive because the Constitution gives only Congress the power to "declare war." In short, the answer to your question depends on the place you start from.
2.13.2006 4:25pm
Tyrone Slothrop (mail) (www):
Has anyone seen a lucid summary of what it is the NSA is doing? E.g., has someone collected the reported facts?
2.13.2006 4:45pm
Taimyoboi:
My best guess would be that by "stepping aside" they weren't letting their ruling speak to the compromise at all.

Supposedly, if Congress or the Presidency did not agree to the "compromise", than there has yet to be one, and the Fourth Circuit would have nothing to say, since they're still waiting for the political branches to hammer one out.

Or, even if a compromise had been reached, perhaps the Fourth Circuit was refraining from freezing the then contemporary compromise in place via a ruling, recognizing that such things are dynamic and subject to future revision either by circumstance or later politicians.
2.13.2006 4:49pm
OrinKerr:
Haynesworth,

I don't follow your first argument. Yes, the Fourth Circuit was deferring because it believed Courts should not interfere with Congress and the Executive negotiating a compromise on the rules of surveillance. But there is no compromise if Congress can't bind the executive, right? The argument only seems to make sense if the legislative process creates the rules, and the Executive branch is "subject to" (Truong's phrase) those rules.

As for your (1) and (2): (1) is an argument I have addressed elsewhere in great depth, and I am simply addressing a different issue here. As for (2), that is just semantics, right?
2.13.2006 4:52pm
Greedy Clerk (mail):
If we agree that Congress has no power to limit the implied powers of the President by creating procedures by which he should exercise those powers, then shouldn't it follow that the Federal Rules of Civil Procedure and the Federal Rules of Evidence, along with any statutes by Congress creating a substantive contempt crime are unconstitutional as well?

Where did that come from, you may ask? Well all agree that the Judiciary has certain implied powers, like the President. All agree that among those implied powers is the power to create procedures for how cases are to be resolved in their courtroom and how evidence is to be received, and they also have the implied power to hold those who obstruct certain processes in contempt. Very basic stuff. Well, how does Congress get the right to prescribe the manner in which the federal judiciary does these things? Certainly the argument I make is even stronger than the arguments made by the Bush-apologist crowd who also purport to be respected legal thinkers (e.g., PowerLine, Instapundit, etc.). No one has any doubt that these are indeed implied powers of the judiciary, and if Congress cannot prescribe rules re the exercise of the President's implied powers (the implied power to surveil for purposes of intelligence being much more far removed from the President's core functions than the Judiciary's implied powers I reference), certainly Congress has no power -- none -- to impose upon the Federal Judiciary, the Federal RUles of Civil Procedure, the Rules of Evidence, etc. Now, you may say that those rules were made with consultation with the Judiciary. True, but that was not the same judiciary as today's; just like the President who signed FISA is not the same as the one today. Thus, Glenn Reynolds, et al, apparently believe that the FRCP, etc., are unconstitutional. I look forward to the law review article.
2.13.2006 4:52pm
Allen Asch (mail) (www):
I'm certainly not one of the "believers in the strong Article II argument," so maybe my post is off topic to start, but I think Prof. Kerr's point is made even more strongly in footnote 2 of United States v. Truong than in footnote 4.

In footnote 2, the 4th Circuit notes that prior to the passage of FISA, Congress specifically "disclaimed any intent to 'limit the constitutional power of the President to take such measures as he deems necessary . . . to protect national security information against foreign intelligence activities.'" The 4th Circuit goes on, however to note:

That disclaimer was repealed by the Foreign Intelligence Surveillance Act of 1978, see note 4, infra, which established a mechanism to govern the issuance of warrants for foreign intelligence surveillance.

I think footnote 2 makes Prof. Kerr's point about footnote 4 even stronger.

By the way, I found a google cache of the full text of United States v. Truong at:

http://tinyurl.com/d7gc7

Allen Asch
2.13.2006 4:54pm
Grand CRU (mail):
I thought that the judicial power is expressly shared between the Congress and the Judiciary. Congress has explicit power, not implied power, to regulate the judiciary, I thought.
2.13.2006 4:55pm
A.S.:
If Congress has no legitimate role in regulating foreign intelligence monitoring

Um, this seems to me to be a complete strawman argument. No one, but no one, argues that Congress has "no legitimate role in regulating foreign intelligence monitoring". Certainly the Administration never makes that argument.

The Administration argues that FISA is only unconstitutional as applied to this case, not that it is unconstituional in all cases. The White Paper states "if an interpretation of FISA that allows the President to conduct the NSA activities were not “fairly possible,” FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict." DOJ Memo at 35.

Accordingly, it seems to me that everyone acknowledges that Congress has a role to play in foreign intelligence monitoring. It is just that such role may not encompass regulating surveillance of international phone calls of suspected terrorists during a war. Thus, the Administration's argument is completely consistent with "Footnote 4".

If Orin, or Marty Lederman, or any of the others advocating the "weak Article II" argument want to show me something where the Administration argued that Congress never has any role to play whatsoever in foreign intelligence monitoring, I'm happy to consider it. However, it appear to me that they are simply refusing to address the actual legal arguments put forth by the Administration.
2.13.2006 5:01pm
OrinKerr:
A.S.,

I apologize if I have misstated the argument. The strong Article II claims are quite elusive, so it's hard to know exactly what the argument is. Just so I understand your position clearly, and don't make this error again, I hope you will answer the following two questions:

1) What is the test that determines when Congress can bind the Executive Branch, and when Congress cannot bind the Executive Branch?

2) What case (or cases) provides this test?

Thanks.
2.13.2006 5:11pm
Gordo:
The Bush Administration's argument to Footnote 4 would be that the Congressional authorization to wage "war" constituted the "intricate balancing" necessary on this issue. Congress gave the President a blank check of its own free will.

I still prefer a "Youngstown" analysis that the administration was bound to abide by FISA myself.
2.13.2006 5:13pm
eddie (mail):
no constitutional power can be said to "violate" a mere statute

So I suppose the real lesson of Watergate is that Nixon's lawyers simply did not have the right argument. I mean, we had a couple of wars going on at that time. You must remember--mutually assured destruction.

I'm still looking for the part of the constitution that says, Congress shall pass no law which requires certain things of the President, because the President has to have absolute power as the unitary embodiment of the executive branch.

Being commander in chief means that there is no one higher in the chain of command when ordering the troups. Is the overall argument being made that in the exercise of that ministerial role, the President can in no way be limited by the rule of law?
2.13.2006 5:14pm
steve k:
A.S. above essentially makes the argument I was about to make (that claiming Congress has no place whatsoever in planning foreign intelligence gathering is a straw man.) What I don't see is how anyone could think this footnote has much effect on the outcome of the debate on either side, at least as it's been previously argued. All it's saying is (outside other expressed or implied powers) these decisions are properly made by some combination of the Legislative and Executive branches, and the courts had best stay out of it. It seems to me that those who claim Bush is clearly breaking the law when the Court is openly admitting this is a political question are the ones who have some explaining to do.
2.13.2006 5:15pm
OrinKerr:
Steve K,

I don't understand your argument. Can you explain a bit more?
2.13.2006 5:16pm
Greedy Clerk (mail):
I thought that the judicial power is expressly shared between the Congress and the Judiciary. Congress has explicit power, not implied power, to regulate the judiciary, I thought

That's what I thought too. Congress has the express power to create lower federal courts, and thus to prescribe rules for how the courts exercise the judicial power. Congress may not however encroach on the core functions of the judicial power by prescribing rules that would compel a certain result in a particular, individual case (putting aside that all law in some sense prescribes a result in a particular case, but you know what I mean). Likewise, Congress has the express power to declare war and to regulate the land and naval forces, thus it can prescribe the rules and procedures by which the President carries out his duties as Commander in Chief, so long as Congress doesn't fully encroach on that power by, say, prescribing precisely what the President is to do -- i.e., the President must invade NOrmandy at 6 am on June 6. This was my understanding. But according to the Bush apologistia, I am wrong. Congress cannot encroach on the President's implied (that is not express) power to surveil American citizens on US soil at all. It cannot, let's say, pass a statute saying that before doing so the President must get approval from a secret court, or in emergencies get after-the-fact approval of surveillance within 72 hours of starting it. If Congress's express power to declare war and regulate the land and naval forces is not enough to prescribe such procedures that do not take away the President's implied power to surveil, but only prescribe procedures for its use then it follows that Congress's express power to create the lower federal courts cannot prescribe rules of procedure, evidence, etc., in the federal courts.

As to AS's remark, I think that DOJ's argument essentially does argue that Congress has no role. If Congress cannot get away with prescribing the eminently reasonable (and some would say, such as John Yoo when Clinton was President (h/t Orin), unduly secretive) procedures of FISA which ackowledge the President's powers and only say that he must get a warrant from a secret court, and can even surveil without court approval for 72 hours then I don't see how Congress has any role in the process. And I hardly think my view is one that supports a "weak" executive. Rather, those (and there are many on both left and right) who objected to FISA at all, and thought it not accomodating enough of individuals' rights under the Fourht Amendment, would be the ones who advocate a weak executive.

2.13.2006 5:21pm
Greedy Clerk (mail):
I still prefer a "Youngstown" analysis that the administration was bound to abide by FISA myself.

So, you're saying you prefer to have some check on the executive's power? Communist.

2.13.2006 5:25pm
Grand CRU (mail):
I thought the argument that Congress cannot encroach on the President's inherent powers is an argument that Congress cannot encroach on the President's core powers. I think inherent and implied mean different things. But maybe I just do not understand.
2.13.2006 5:26pm
A.S.:
Well, maybe I don't know what you mean by "strong Article II claims". Do you mean (a) a claim that Congress has no authority to regulate foreign surveillance at all, or (b) a claim that Congress cannot regulate the NSA program. Your post made it sound as though you were addressing claim (a); footnote 4 only addresses claim (a) - not claim (b). As I pointed out, nobody is actually making claim (a) - certainly not the Administration.

As to claim (b), I think that pages 29-35 of the White Paper address the point. It boils down to: "Reading FISA to prohibit the NSA activities would raise two serious constitutional questions...: (1) whether the signals intelligence collection the President determined was necessary to undertake is such a core exercise of Commander in Chief control over the Armed Forces during armed conflict that Congress cannot interfere with it at all and (2) whether the particular restrictions imposed by FISA are such that their application would impermissibly impede the President’s exercise of his constitutionally assigned duties as Commander in Chief." White Paper at 29.

Is your point that there is no "test that determines when Congress can bind the Executive Branch, and when Congress cannot bind the Executive Branch"? Further, do you think that there is no test because Congress can always bind the President? Because that seems to be Marty Lederman's contention (if not yours).
2.13.2006 5:29pm
Perseus:
Doesn't this necessarily mean that the Fourth Circuit thought "the compromises" of FISA were binding on the Executive Branch?


Not necessarily. Although I understand why the administration might be reluctant to do so, I'd suggest that as part of the "legislative process," the executive should simply exercise its "benign prerogative" and clear constitutional power of pardon, which would, in effect, nullify FISA (see Title 50, Chapter 36, Subchapter I, § 1809 and 1810 for penalties.)
2.13.2006 5:32pm
A.S.:
As to AS's remark, I think that DOJ's argument essentially does argue that Congress has no role. If Congress cannot get away with prescribing the eminently reasonable (and some would say, such as John Yoo when Clinton was President (h/t Orin), unduly secretive) procedures of FISA which ackowledge the President's powers and only say that he must get a warrant from a secret court, and can even surveil without court approval for 72 hours then I don't see how Congress has any role in the process. And I hardly think my view is one that supports a "weak" executive.

I certainly would think that is a "weak" executive view.

As I've commented before, so my mind, separation of powers means that the President must have SOME prerogatives that the legislative branch cannot interfere with. Else the Presidency would be no different that the Administrator of the Small Business Administration - completely subject to Congress's whim. That's not my conception of a co-equal branch of government.
2.13.2006 5:34pm
OrinKerr:
A.S.,

I don't follow your response. To repeat myself:

1) What is the test that determines when Congress can bind the Executive Branch, and when Congress cannot bind the Executive Branch?

2) What case (or cases) provides this test?

I look forward to your answer.
2.13.2006 5:37pm
steve k:
I was just about to leave so you'll have to excuse me if I make this quick. I assume the argument you're referring to is not A.S.'s straw man argument (which I think should be the main argument here) but the latter argument--that the footnote doesn't help the weak Article II side.

Let me try to make it a bit clearer why I don't think this footnote is especially relevant. First, the footnote, is referring only to the particular issues brought up in the case. This case may be important, but some of the "strong authority" arguments, regarding express and inherent powers, are not contemplated here. Second, and more to the specific point, the court seems to be saying the intricate balance of foreign intelligence gathering is a back and forth job (or battle if you prefer) between the Congress and the President, and is not justiciable. The Congress can propose how it should be done and the President can interpret how it should be done and ultimate there will be a workable solution--the President can even claim to have authority which some in Congress don't think he has (as pretty much all Presidents do) and the courts should still keep their mitts of. Therefore a) it's not a matter of legal activity or otherwise (as so many claim) so much as a political struggle, and b) the "solution" to any problem is to try to work things out (as the branches are doing now) and, if they reach an impasse, the Congress can (if it doesn't give in) try to impeach the President (good luck), or work against him in other ways until he bends to their will, or campaign against him so a more amenable President takes his place.

If it seems this like the President is above the law, I'd say this demonstrates an ignorance of how things run under the Constitution. The President and the countless people who work under him in the Executive branch run all sorts of things with only the faintest oversight and weakest levers from the Congress. Only if something is done poorly and notoriously enough will Congress do something.

When it comes to non-justiciable powers, the difference between acting above the law and not becomes even trickier. Take something like the Republican Clause. The Courts have declared it's up to the Congress to decide if a state is not Republican and then take action, a citizen cannot sue in court to get a determination. So this becomes a political question. The Congress can decide--it IS the law here. (And if the President doesn't want to go along, once again, their choice is to work something out or impeach him.)
2.13.2006 5:39pm
minnie:
Speaking of FISA, we discussed on another thread whether it was blackmail, extortion, or what to threaten to out a gay Senator unless he voted a certain way. Here's a clip from the news:

1. Rove to Senators: Clear Bush or Else

White House Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against President Bush in the Senate Judiciary Committee's investigation of the administration's unauthorized wiretapping.

Personally, I feel assaulted as a citizen that elected officials are coerced into voting a certain way or threatened with reprisals.That would mean that the majority party could always stiffle dissent by using such threats.

Why isn't this extortion?
2.13.2006 5:44pm
A.S.:
Orin, I'm sorry we're talking past each other. I don't know how to answer other than to repeat myself too:

1) What is the test that determines when Congress can bind the Executive Branch, and when Congress cannot bind the Executive Branch?

"Reading FISA to prohibit the NSA activities would raise two serious constitutional questions...: (1) whether the signals intelligence collection the President determined was necessary to undertake is such a core exercise of Commander in Chief control over the Armed Forces during armed conflict that Congress cannot interfere with it at all and (2) whether the particular restrictions imposed by FISA are such that their application would impermissibly impede the President’s exercise of his constitutionally assigned duties as Commander in Chief." White Paper at 29.

Do I need to generalize from that specific application of the test?

2) What case (or cases) provides this test?

See the White Paper at 29-35.

Let me ask a converse question: what case or cases support the notion that Congress can bind the Executive Branch even in respect of the Executive's core powers, such as conduct of a military campaign? Because I don't think Youngstown does that at all - it held that seizing the steel mills was simply too remote from combat to qualify ("The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.")
2.13.2006 5:46pm
PJens:
I am a new commentor and admit I have not the brain power to present or agrue on the same level as many others do in this forum. On the subject of the Bush administration legal grounds to monitor telephone conversations, doesn't the end justify the means? In my layman mind, all that is needed to justify action is a thread of legal basis and susequent significant sucess.

Article II does allow the president to act in the best interest of the country at time of war. He apparently has acted as such in his mind, and claims to have prevented attacks upon U.S. soil as a result of it.

In my opinion, the focus ought to be on verifying whether the NSA is an effective intelligence gathering organization.
2.13.2006 5:50pm
OrinKerr:
A.S.,

But you're not even offering a test, or citing to an authority. You are just pointing to a mention of interesting constitutional questions in an unsigned .pdf file that was posted on the web a few weeks ago.

Is what you're saying that you think those questions should be refashioned by future courts into a constitutional test, and that the test in the future should be just whether Congressional regulation "goes too far"? So I gather you would say that a) You have no current authority for your position, and b) you think the test should just be a general totality-of-the-circumstances test?

I look forward to your response, as answers to questions like this are very helpful for those of us trying to understand your position.
2.13.2006 5:52pm
Allen Asch (mail) (www):
steve k wrote:

the court seems to be saying the intricate balance of foreign intelligence gathering is a back and forth job (or battle if you prefer) between the Congress and the President, and is not justiciable.

I think this statement overreads United States v. Truong. The Fourth Circuit doesn't claim the issue is "not justiciable," but, rather points out that the judiciary at that time was too "inexpert in foreign intelligence" to make such decisions.

The 4th Circuit, however, contemplates that a future FISA court will be in a better position to make such judgments because (as stated in footnote 4):

the statute empowers the Chief Justice to designate seven judges to hear the requests for foreign intelligence warrants and thus creates a special group of judges who will develop expertise in this arcane area.
(emphasis added)

Allen Asch
2.13.2006 5:55pm
A.S.:
Let me add that, while I appreciate that Orin is looking to figure out what the "test" should be, I think he is ignoring the main point I was making.

Orin was wondering whether Congress has any "legitimate role in regulating foreign intelligence monitoring" at all. He cites footnote 4 in favor of the proposition that Congress has a "legitimate role in regulating foreign intelligence monitoring". But whatever the "test" is for when Congress can bind the Executive Branch, everyone recognizes that "regulating foreign intelligence monitoring" meets it at least to some degree. But the fact that one recognizes that Congress may legitimately regulate SOME aspects of foreign intelligence monitoring has no bearing on whether Congress may legitimately regulate THIS PARTICULAR aspect of foreign intelligence monitoring.

Hence, while footnote 4 provides support in favor of the proposition that Congress has a "legitimate role in regulating foreign intelligence monitoring", it provides no support whatsoever in favor of the proposition that Congress has a legitimate role in regulating the NSA program.
2.13.2006 5:59pm
OrinKerr:
A.S.

I realize that you don't want to answer my questions, and would rather talk about some other things. But the post is mine, and I believe that the questions are the most fundemental issues raised here. I would really appreciate you answering the questions I have raised.
2.13.2006 6:03pm
Kovarsky (mail):
Can I toss my hat in here for a second, just for explanatory simplicity, and everybody can just affirm, generally, whether this confirms to a "strong" versus "weak" article II authority argument.

people are misreading the strong/weak distinction. it is a distinction that toggles the executive's power, not congress's.

under the WEAK version, inherent authority is the textbook authority of the president to act - even though the authority may be unenumerated - where congress has not acted.

under the STRONG version, the executive possesses some of those unenumerated powers as being tantamount to an express constitutional grant of authority, thereby exclude congressional action in those fields by negative implication.

Is that a fair definition? For the record, I have no idea what A.S. is saying either.
2.13.2006 6:03pm
Kovarsky (mail):
"conforms," jeez.
2.13.2006 6:05pm
Anderson (mail) (www):
A.S.---So the "test" is whether the surveillance in question is arguably pursuant to some military conflict authorized by Congress? Does that fairly state your position?
2.13.2006 6:07pm
Greedy Clerk (mail):
As I've commented before, so my mind, separation of powers means that the President must have SOME prerogatives that the legislative branch cannot interfere with.

Very inciteful AS. In the abstract, everyone agrees with you. The President has the power to veto laws for example, and Congress can't say anything about that. That makes him more than administrator so are you happy? The question is not if the President should have powers distinct from Congress which Congress cannot interfere with. The President has those powers -- they are right there in the Constitution; I suggest you read it. The question is whether, in this particular situation, the President can exercise power in a manner that directly conflicts with a Congressional statute signed by the President. For someone who was complaining earlier in the thread about straw-man arguments, I must commend you for the irony.

2.13.2006 6:08pm
Kovarsky (mail):
A.S.,

I think I understand your argument now. Your argument is that while it might be the case that inherent authority DOES NOT cut off Congress's authority to act in certain post-9/11 intelligence gathering situations, it DOES cut off Congress's authority to act in other post-9/11 intelligence gathering situations.

I hate to state the obvious, but is there an ounce of authority - a case, a federalist paper, an idea that benjamin franklin scribbled on a napkin - that supports both your interpretation of inherent authority and that granular a distinction within it?
2.13.2006 6:08pm
Greedy Clerk (mail):
For the record, I have no idea what A.S. is saying either.

I don't think AS has any idea what he is saying. He is just arguing for argument's sake. Anything that interferes with his hero George W. Bush's right to do whatever he wants just can't be right, though he's not sure why. . . .

2.13.2006 6:10pm
Steve:
What I got out of Justice Jackson's Youngstown opinion was that, when it comes to tricky matters of war powers, foreign policy and the like, the courts sure appreciate it if Congress and the President come to an agreement so they don't have to get involved. Another good discussion of this concept came in Hamdi, where the Court reviewed precedents relating to "undeclared wars" since WWII and basically said look, if the President and Congress are in agreement that this is a useful way to go about deploying troops, we're not going to butt in and issue an injunction to bring the troops home because there was no formal declaration of war, or anything silly like that.

Viewed in this light, the Truong decision doesn't really say anything earth-shattering about FISA. From the court's point of view, this was a new and challenging area, Congress and the Executive had apparently decided on a workable set of rules, and that's good enough. Indeed, it would have been bizarre if the footnote had said that FISA was obviously an unconstitutional encroachment on the President's powers, considering no one had made that argument and the statute wasn't at issue in the case itself. And now that there actually does seem to be a dispute between Congress and the Executive regarding the applicability of FISA, I don't think this dicta is particularly significant.

About all you can say about this footnote is that, if it is drop-dead obvious that Congress has no power to regulate in this area, it's kind of odd that the Fourth Circuit just let the issue pass without comment. But I don't think any serious commentators (unless you count those guys at powerlineblog.com) really think it is drop-dead obvious. At best, it's a debatable issue.

The greatest divide seems to be between those people who believe that FISA restricts an inherent power of the President, and those who believe FISA merely regulates that power, in a sort of "time, place, manner" way. A court trying to handle the present situation in a politically sensitive way would most likely avoid a tough constitutional question by holding that FISA does not restrict whatever inherent power the President may have, but merely creates an oversight mechanism to ensure that the President does not overstep the bounds of his inherent power.
2.13.2006 6:12pm
Grand CRU (mail):
Kovarksy,

Why do we need a strong/weak distinction? Why can't we just say that the answer to Orin's question is that Congress can bind the executive only through the passage of valid law? Maybe my answer is too simple, but can't the Executive make executive agreements in the absence of treaties and pass executive orders in the absence of laws to the contrary? Either you think FISA binds the President, or you don't...? Which makes Orin's "special needs" post all the more significant...? I guess what I don't understand is that even if the President is weak, a statute can still be invalid, and even if he is strong, he can't ignore a valid statute...?
2.13.2006 6:13pm
Kovarsky (mail):
And, for the record, a variety of people seem to have misinterpreted what FN 4 is saying. IT is not saying that the Courts have no role in adjudicating a disagreement between Congress and the Executive on the meaning of legislation in this field.

It merely says that the Court is not going to important the content of constitutional rules to a context where they do not necessarily apply. Instead, they will let the legislature figure out which rules are to govern the warrant requirement. That says nothing about the court's institutional incompetence to adjudicate the dispute between Congress and the Executive involving what those legislative rules mean.
2.13.2006 6:14pm
Greedy Clerk (mail):
OK, I've got to come back to this quote from AS: "As I've commented before, so my mind, separation of powers means that the President must have SOME prerogatives that the legislative branch cannot interfere with. Else the Presidency would be no different that the Administrator of the Small Business Administration - completely subject to Congress's whim. That's not my conception of a co-equal branch of government."

Because, you know, people like Marty Lederman envision the President being no different than a run-of-the mill administrator at the Small Business Administration. It's either/or -- either the President has the power to surveil without a warrant and without Congressional involvement in his decision or the President is "no different tha[n] the Administrator of the Small Business Administration - completely subject to Congress's whim." Very logical.

Don't bother arguing with someone who sets up that type of argument. A fifth grade debating team member would see through that one and hack it up. And again, this is the guy who up the thread was complaining about Orin and others creating a "straw-man." He just set up a hornbook example of a straw-man with that either/or argument, and he has the chutzpah to complain that Orin's post was a straw-man. Wow.

2.13.2006 6:17pm
Legat:
I would like to point out that every analysis we have made is necessarily predicated on the assumption that the eavesdropping in question does in fact violate FISA. This is important to keep in mind.

I believe there is special import in the phrase "intricate balancing" as quoted in the statement from Truong. I don't believe that this was a reference to the bare process resulting from separation of powers; rather, it seems like it was a reference to the very careful, delicate, and equivocal process both branches go through in drafting foreign intelligence legislation. "Elaborate stucture" might just as well have read "equivocal nature."

The point of the process is to avoid just the sort of constituional confrontation that is occuring at the moment. Read in this light, the court is stating that a constitutional confrontation should be avoided at all costs, but it is clearly not issuing an opinion that the courts should defer to the process should constituional questions arise. Congress' admission that the passage of FISA does not "forclose a different decision by the Supreme Court" is indicative of the expecially delicate dance that occurs in the drafting of such legislation. In addition to making this admission, Congress was very careful not to draft legislation that regulated the collection of intelligence outside of "all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands."

As an example of the dance, I would like to use a sequence of thoughts from Carter's AG, Griffin Bell.

The first is from Hearings Before the Subcommittee on Intelligence and the Rights of Americans of the Senate Select Committee on Intelligence, 95th Cong., 2d Sess. 12 (1997).

1. "no matter how well intentioned or ingenious the persons in the Executive branch who formulate these measures, the crucible of the legislative process will ensure that the procedures will be affirmed by that branch of government which is more directly responsible to the electorate."

Bell was referring to the reasons he chose to support FISA.

The second statement:

2."This bill [FISA] specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted."

Quoted out of the larger context of the general obfuscation surrounding foreign intelligence legislation, these two statements would lead one to believe that Bell would absolutely not support what we know of the president's current program.

The third quote (from DoJ's legal authorities paper):

3. "Indeed, while FISA was being debated during the Carter Administration, Attorney General Griffin Bell testified that 'the current bill [FISA] recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution.'"

it would be a strained argument to make the case that Bell was referring exclusively to Youngstown Zone 2 authority. The president retains constitutional power in all three zones. In the third zone it is simply the question of whether the President's power outweighs Congress' ability to regulate.

The fourth quote (from the 12/21/05 Wall Street Journal):

4. "In proposing FISA to Congress in 1978, the Carter administration specifically stated that passage of the new law would not necessarily preclude the president from 'using his powers granted under the Constitution to carry out foreign policy and intelligence activities,'
according to Griffin B. Bell, the attorney general when the law was drafted and enacted. There was a 'tacit agreement that FISA was not intended to displace the president's authority,' Mr. Bell told me earlier this week."

How does one reconcile this most recent statement of Bell's with the first two I have quoted? Given the limited context it is difficult to know exactly what was meant, but it would be hard to imagine -- given the last two statements -- that Bell was conceeding in the first two that FISA was intended to be the sole authority in the area of foreign intelligence surveillance. Rather, in the second quote he was only stating that FISA says it is the sole authority in such matters -- not that FISA is the sole authority.

The first quote in question is a fantastic example of obfuscatory non-speak: does Bell mean eavesdropping should and can be 'cabined' by congressional legislation in order for there to be greater responsibility to the electorate, or does he mean that congessional affirmation should be sought because it gives an air of legitimacy to an authority that the president already has? This latter reading, I think, would be the consistent reading of Bell's statements.

The net of this would put actions in violation of FISA in Youngstown Zone 3. If, in the course of this "intricate balancing," the executive branch believes its powers are being too narrowly intrepreted, it can go to the courts to resolve the dispute.
2.13.2006 6:20pm
Kovarsky (mail):
Grand CRU,

There was a dispute in nomenclature about what "strong" and "weak" meant in this context. Orin was asking that someone define it, that person didn't define it, so I volunteered the definition I've been operating under.

I don't support the distinction as a matter of descriptive accuracy. The "strong" theory people all have a trail that leads back to Yoo.
2.13.2006 6:20pm
Kovarsky (mail):
Legat,

I don't get it. Are you saying that it's possible that the program doesn't violate FISA? Because that contravenes the administrations repeat admissions that they ahve not sought FISA warrants where they should have prior to the AUMF.

The only argument that the administration does not violate FISA is that FISA contemplated alteration by statute, and the AUMF was such a statute. I think most people believe that interpretation would turn almost every canon of statutory construction on its head.

We've ben over this. Other the the "implied repeal" argument, even the adminsitration does not dispute that the program violates FISA. Can you differentiate yourself from that position?
2.13.2006 6:25pm
KMAJ (mail):
Let's put this in a different, but historical perspective. It would be safe to assume that minus the abuses of Kennedy, LBJ and Nixon, and the climate created by Vietnam and Watergate, there would be no FISA statute, in essence we are passing on the sins of one on to another. With the above assumption, would any president have signed the FISA law, minus those circumstances ?

Every president, since FISA's inception, has, in one way or another, proclaimed it can not infringe on constitutional executive powers. Is it possible we are not asking the right questions ? How binding are the beliefs/decisions of a previous president on those of a future president ? Just as the rules of one Congress are not forced upon a succeeding Congress, does a similar concept apply to the executive branch ? Is one president's view of executive power binding on the next president ? I think this question is especially relevant in light of the political climate that led to FISA.

It is in this light that I read the Truong footmote, not as giving FISA a fixed standard or legal recognition, but one that is an ongoing process of modification that needs the flexibility to adjust, hence the last three sentences:

The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary, inexpert in foreign intelligence, to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision. Such an attempt would be particularly ill-advised because it would not be easily subject to adjustment as the political branches gain experience in working with a warrant requirement in the foreign intelligence area.


It appears they are saying that ruling on this, even in a test case, would be ill-advised, and is better left to the legislative and executive branches to work out their differences, based on the knowledge gained by experience in the sphere of foreign intelligence. To come to this conclusion, they must have felt there were no appropriate precedents for them to travel down that path.
2.13.2006 6:26pm
Grand CRU (mail):
"Instead, they will let the legislature figure out which rules are to govern the warrant requirement."

Ok. But I don't see how a "compromise" means that Congress gets to bind the Executive. It seems to mean that Congress and the Executive can come to an agreement -- through the ordinary process of Congress proposing law and the President deciding or veto or sign it. FISA would be such an example, except if you think President Carter lacked the ability to sign off on FISA because FISA is unconstitutional. Even if you think FISA is constitutional -- as most seem to -- it doesn't follow that a superior Congress is binding an inferior Executive; it sounds like an equal Congress and an equal Executive came to an agreement that became law.
2.13.2006 6:28pm
A.S.:
I realize that you don't want to answer my questions, and would rather talk about some other things. But the post is mine, and I believe that the questions are the most fundemental issues raised here. I would really appreciate you answering the questions I have raised.

Yes, I realize that "the post is yours" - and I've tried to answer your questions about the "test". But I hardly think that discussing why Truong's footnote 4 has nothing to do with the NSA program is somehow off-topic. After all, your original post that started this thread was ALL ABOUT footnote 4 - and said nothing about a "test"!
2.13.2006 6:37pm
Kovarsky (mail):
KMAJ,

You make a great point, except you've excised precisely the part of the opinion that talks about how the legislative process is the mechanism to address the issue.

Also, as I've stated above, partially as a response and partially as a warning, that footnote in no way shape or form suggests either following propositions, which you seem to be trying to insinuate:

(1) the court may not say what FISA means
(2) the court may not adjudicate a dispute between the branches as to the substantive rules to govern the warrant requirement
2.13.2006 6:39pm
Grand CRU (mail):
Kovarksy,

re: your 6:39pm post:
If (1), then the court could say that FISA is unconstitutional. If (2), that dispute, if at the constitutional-level, puts the Exectutive and Congress on equal footing. The Executive can claim there is no Article 1 authority for FISA; the Congress can claim there is no Article 2 authority to circumvent FISA.

But, how does a court adjudicate such a claim? Footnote 4 suggests the courts will punt...?
2.13.2006 6:42pm
Jeffrey (mail) (www):
The President's constitutional authority, as understood by the strong Article II position, remains subject to refinement via constitutional amendment. If constitutional amendment is the product of "legislative process" (which it is), then there is no conflict with this footnote.
2.13.2006 6:48pm
Kovarsky (mail):
Grand CRU,

No, footnote 4 says that the courts will not impose the content of the constitutional warrant requirement on a statutory warrant requirement. Where the constitutional warrant requirement may not apply of its own force, the court reasons, there's no reason for the court to borrow that constitutional content when there's legislation there which reflects much more careful deliberation.

When the footnote says the endeavor "should be left to the intricate balancing performed in the course of the legislative process by Congress and the President," it is referring, as it says quite clearly, to the legislative process of bicameralism and presentment, not a contemporary disagreement between the executive and the legislature disagree about whether the statute should continue to apply.
2.13.2006 6:48pm
Kovarsky (mail):
Jeffrey,

Please clarify.

Lee
2.13.2006 6:52pm
A.S.:
But you're not even offering a test, or citing to an authority.

No, I'm pointing to a .PDF file that offers a test cites to (several) authorities. I fully admit that I'm not an Article II scholar; I'm just a lowly corporate lawyer. So the extent of my helpfulness on this question is to point out where people more versed in these questions have written about them. So I wanted to point out that Page 29 of the White Paper DOES contain a "test" that IS supported by cases (and OLC opinions, and the like) cited in pages 29-35. It may not have as much support as you'd like, and if you say that what is cited there is not convincing, that's fine. I certainly didn't mean to imply that I thought the analysis there is dispositive. I don't think that an analysis either way is dispositive, given that there are basically zero cases on point - since Youngstown is not on point (I don't know about this Little v Barreme).

I'm not sure what Orin means by "you think the test should just be a general totality-of-the-circumstances test". I don't think so. I think there are certain core powers of the Executive Branch that Congress cannot interferewith - that seems to me to be inherent in the idea of separation of the powers. That, I think, is a threshold question - do you think that there are ANY powers of the Executive Branch that Congress cannot interferewith. (Can you cite any cases directly addressing this point either way?)

Let's go beyond that threshold question and accept, arguendo, that there might be SOME powers of the Executive Branch that Congress cannot interferewith. What are those? The President is the "sole representative with foreign nations", for one. Curtiss-Wright. What about Commander in Chief clause? Does that provide him with any exclusive powers? The fact that there are some actions that are not included in his exclusive powers (e.g., seizing steel mills) does not imply that he has NO exclusive powers under that clause. So the challenge is finding something in the small amount of caselaw and other legal authority (e.g., OLC opinions) that instructs you one way or another. If your point is that there ain't much out there, I'd agree. Again, I've not done independent research on the topic. I can only point to those authoirities that have been collected in pages 29-35.
2.13.2006 6:55pm
KMAJ (mail):
Kovarsky,

I apologize if it appeared I was insinuating what the court may or may not do. I was merely expressing an opinion that the footnote was saying the court would be ill-advised to do so, as it would limit the necessary flexibility of the political branches.

I excised the legislative part because it did not proscribe any specifics of said legislative process, other than what we all know, the legislative branch can write a bill and the executive can sign or veto. I accented the last three because it addressed the judicial role, which has been a major part of this many threaded debate.

As I have stated many times, I am a layman, so all I can do is bring a layman's common sense perspective, with as much or as little common sense as I may have. People are free to reject any or all of my arguments due to lack of legal expertise. It has been my personal experience, in the journalism field, that it is helpful to take into account outside perceptions to evaluate practices. It keeps one in contact with those who will be most affected by one's decisions and prevents one from developing an isolated point of view.
2.13.2006 6:56pm
OrinKerr:
A.S.,

I gather I should interpret your response as a simple refusal to answer my questions?

If so, it's particularly ironic: Your first post criticized me for "simply refusing to address the actual legal arguments put forth by the Administration," and ended with you repeatedly refusing to answer my questions.
2.13.2006 6:56pm
Medis:
This may be a good time to repeat an observation from the very first days of our discussions of this issue.

I think what underlies some of this dispute is two different senses of what "powers" are being separated by the Constitution. One possibility is that the "powers" in question are KINDS of power. In that sense, all three KINDS of power may well apply to any given action. A second possibility is that the powers in question are SUBJECT MATTERS of power. In that sense, there could be entire areas of action in which only one power applies.

I think people like A.S. have the latter model in mind--their idea is that there must be some SUBJECT MATTER in which only the President has power. For the sake of convenience, we can call this subject matter "military conduct during war," and their view is that if the action in question falls within that subject matter, only the President's power should have a role to play. More specifically, if an activity purportedly governed by FISA falls within this SUBJECT MATTER ("military conduct during war"), then FISA is unconstitutional as applied to this activity because it does not grant sole power to the President with respect to this SUBJECT MATTER.

Conversely, people like me have the former model in mind. So, when it comes to an action that falls within the SUBJECT MATTER "military conduct during war", it is entirely possible that all three KINDS of power, and therefore all three branches, will have some role to play. More specifically, we see activities pursuant to FISA as a simple application of all three KINDS of power: Congress supplied the applicable surveillance law, the President is providing the specific surveillance commands, and the courts are determining whether the President's specific commands are complying with the law. In that sense, there is no violation of the "separation of powers" because each branch is only exercising its KIND of power.

With that setup, we can then ask which model actually accords with the text of the Constitution (as supplemented by any useful sources). My view, of course, is that when it comes to "military conduct during war", the Constitution explicitly does not limit that SUBJECT MATTER to the President. Rather, it explicitly separates the executive KIND of power in war (commanding the armed forces) from the legislative KIND of power in war (making rules for the government and regulation of the armed forces), and it allocates the former to the President and the latter to Congress. And to support that interpretation, I'd start with the text, as implied by my parentheticals.

So, I'd like to hear from A.S., or other who agree with him. Do you agree that your model of separation of powers, at least in this case, is based on SUBJECT MATTER? And if so, what is your support for that proposition?
2.13.2006 6:57pm
Wintermute (www):
Wonder why some Republican hasn't suggested just repealing FISA? They've got the numbers.

This is a complex matter; the courts know when they don't have the staff or expertise to fashion some grand scheme to solve a problem, and they defer. Especially in this area, courts are likely to give great weight in deciding Fourth Amendment controversies to the sense of the American people, through ALL its elected federal officials, of what searches are reasonable or not and "[w]hether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security," see Katz fn. 23.
2.13.2006 7:04pm
KMAJ (mail):
Medis,

Good analogy, except I would trade out your word 'conduct' for the word 'operations'. I think that presents a more accurate picture than the word conduct. I would also adjust from painting with the word exclusive to the word primary or plenary.
2.13.2006 7:06pm
OrinKerr:
A.S.,

Thanks for at least starting to engage with these issues. I confess I am puzzled with what you say, however: the DOJ memo pointedly refuses to give a test, and instead offers a way of resolving the NSA issue without addressing the Article II issue squarely. So I don't know why you think that is a test.

Further, if you are not familiar with this area yourself, I don't why you have been so confident that you are right on this issue. Little v. Bareme is a key precedent, for example: if you haven't read it, I'm not sure how you can take a strong position on the Article II issue. Also, why do you defer to the DOJ brief? How do you know that it is reliable? You can decide to simply assume that DOJ is right, but then that would be simply assuming the conclusion rather than reasoning to it.
2.13.2006 7:08pm
Grand CRU (mail):

No, footnote 4 says that the courts will not impose the content of the constitutional warrant requirement on a statutory warrant requirement. Where the constitutional warrant requirement may not apply of its own force, the court reasons, there's no reason for the court to borrow that constitutional content when there's legislation there which reflects much more careful deliberation.



I agree. Was the Executive challenging the constitutionality of FISA in that case? Or did the court simply assume, for the purposes of adjudicating the issue before it, that FISA was constitutional?


When the footnote says the endeavor "should be left to the intricate balancing performed in the course of the legislative process by Congress and the President," it is referring, as it says quite clearly, to the legislative process of bicameralism and presentment, not a contemporary disagreement between the executive and the legislature disagree about whether the statute should continue to apply.



I agree. But when you have such a disagreement, where the Executive claims that Congress lacks authority under Aricle 1 to create a statutory warrant scheme (i.e., FISA is unconstitutional) and Congress claims that the Executive lacks Article II power to circumvent FISA, then the court cannot assume as its baseline that FISA is constitutional to decide the question before it. In such a case, Art. 1, sec. 7 bicameralism and presentment is insufficient, as was true in the line-item veto case, Clinton, I think.
2.13.2006 7:08pm
M. Lederman (mail):
It's no doubt silly and counterproductive even to respond to A.S., but just in case anyone would construe my silence as assent: It is not my "contention" that "Congress can always bind the President." Indeed, I think there are few, if any, instances in which Congress can bind the President. Statutes, on the other hand -- those can bind the President, and they're almost always constitutional when they do. But not always. Indeed, I even think there are some limits that the Commander-in-Chief Clause, in particular, places on the reach of statutes -- although I'd be hard-pressed to think of a statute imposing substantive limits on the President that the U.S. Congress would ever actually enact over the President's veto (or with his signature) and that would transgress those limits. The Torture Act; the McCain Amendment; FISA; the UCMJ; the habeas statute as construed in Rasul; section 4001(a) as construed by five Justices in Hamdi/Padilla; the War Powers Act; the 60-day limit in section 5(b) of the War Powers Act; the statute that required transfer of Milligan to the civilian justice system in Milligan; the statute that implicitly prohibited interdiction of ships coming from France during the Quasi-War (Little v. Barreme); the statute that required cessation of hostilities in Cambodia by August 15, 1973 -- they're all constitutional.
2.13.2006 7:17pm
Grand CRU (mail):
Mr. Lederman,

I understand, I think, the argument about "the statute that implicitly prohibited interdiction of ships coming from France during the Quasi-War (Little v. Barreme)" ... but isn't foreign commerce explicitly in Article 1? Warrants for electronic surveillance are not in Article 1, and that is the problem for me, or am I misreading that case?
2.13.2006 7:20pm
M. Lederman (mail):
Grand CRU: No one is arguing that FISA was not enacted pursuant to one of Congress's enumerated Article I powers. Because it was: Not only the Necessary &Proper Clause (the same clause that gives Congress the authority to create the NSA in the first place -- and to prescribe what it can and can't do); and not only the Rules for Regulation and Government Clause (as applied to components of DoD, such as NSA); but also the Commerce Clause itself!: International wire communications are deemed foreign commerce -- just as the movement of ships is -- that is uncontroversially within the Commerce power. Indeed, most of the computer-crime laws discussed in Orin's casebook are enacted pursuant to the Commerce power.
2.13.2006 7:27pm
Kovarsky (mail):
Grand CRU

The case is basically a coup for some administration supporters. It definitely supports the proposition that the 4th amendment does not bind the administration in their foreign intelligence surveillance, even if that surveillance takes place in the United States.

It imposes a relaxed constitutional warrant requirement on the courts - a requirement that varies with the interest in security being pursued, blah blah blah.

it says that there's nothing in the constitution itself that requires the excecutive to get a warrant to conduct surveillance. but the express purpose of FN 4, as orin recognizes here, seems to be to say, look, we're not dealing with a scenario where there's legislation. they seem to be saying, of course congress could legislate a more stringent warrant requirement, because they're the most competent body to consider the risks and benefits involved.

so its a good case for the administration, but only if your the type of person that believes in the "strong" version of inherent authority, since one of he assumptions behind the statements in the case is that congress has not legislated.
2.13.2006 7:30pm
Medis:
KMAJ,

Just an aside, but it wasn't intended as an "analogy", but rather as a description.

Anyway, I was trying to distinguish between "subject matters" and individual "actions" which might fall within the scope of that subject matter. I take it by suggesting the change from "military conduct during war" to "military operations during war", you are suggesting that we define the subject matter directly in terms of the individual actions within the scope of that subject matter.

I think I understand the appeal of that move to you--if Congress was passing laws about "operations", that might sound like Congress was passing laws on an operation-by-operation basis. Conversely, if Congress was only passing laws about "conduct", that might sound like Congress was passing general rules. Of course, these general rules might apply to many "operations", but there would not be an operation-by-operation direction from Congress.

If that is the difference you have in mind, I think we can indeed just ask which is a better description of FISA. In other words, is FISA a law regulating "conduct", in that it sets up a general rule that may apply to many "operations"? Or is it an attempt by Congress to direct an individual operation?

I think the answer is obvious--FISA contains a general rule, not a direction for a specific operation. So, insofar as that is what you were getting at, I think "conduct" is indeed the more accurate description--at least if this rule is going to have any application to FISA.

But I like your terminology in this sense: we might well say that the power to command the armed forces includes the power to direct specific military operations, whereas the power to make rules for the government and regulation of the armed forces includes the power to regulate military conduct. Of course, both powers may be relevant to any given operation, insofar as the commander is directing the operation, but also has to obey the applicable general rules while doing so.

In that sense, I think your distinction between terms actually aligns with my model, insofar as they help to define a difference in KINDS of power. But as noted, I don't think it is help in defining a SUBJECT MATTER, precisely because I think you intend "operations" to imply a certain action-by-action decisionmaking, not different kinds of decisionmaking within a general subject.
2.13.2006 7:35pm
Grand CRU (mail):
Mr. Lederman,

Just so I understand, do you mean that the Article II people (and I'm not one of them) have absolutely no argument unless they have an unduly narrow reading of the scope of the Commerce Clause power, ... is that it?
2.13.2006 7:36pm
srp (mail):
Maybe no one will read down this far, but I'd like to take a crack, as a non-lawyer, at answering Orin's query about distinguishing legitimate from illegitimate regulation by Congress of the Commander-in-Chief. The basic principle is that the Congress can set general rules and guidelines about methods and resources but may not insert itself or its agents or the courts into the specific execution of military operations.

So the Congress can outlaw the use of rifles or nuclear weapons or electronic surveillance or psyops. It can say what classes of people may serve in the military and how they are to be paid. It can do all sorts of things that may be unwise and the only checks on such actions are the veto, new elections, and the power of common sense.

The Congress may not, however, encroach directly or indirectly into subjects such as: When and where to fire weapons among already approved (or not explicitly disapproved) classes of targets, when and where to use signals intelligence among already approved (or not explicitly dispproved) classes of targets, where to move forces among already approved (or not explicitly disapproved) locations, etc.

Furthermore, the general rules the Congress makes may not be "sham" rules with complex conditionals such that they amount to usurpation of the commander's role, e.g. "Forces must always fire at persons named Orin Kerr located in Afghanistan or Pakistan, but not if said individual holds a law degree, in which case they must capture him and beat him with a hornbook." Nor can the Congress intervene in the chain of command by appointing its own representatives or judges to rule on military actions.

The Congress could not, for example, legitimately pass the Foreign Strategic Bombing Act, which set up special Article III courts to adjudicate particular bombing missions. Similarly, FISA is unconstitutional if it purports to tell the President when she can intercept particular enemy communications. Either the NSA is legal, or it isn't; the essence of the separation of powers, even in the Medis formulation, is that if it is legal, there is no way for the Congress to micromanage, directly or through the courts, the particular enemy persons or organizations surveilled.

I cite no precedent here because I am not a lawyer. Given that there doesn't seem to be a lot of relevant precedent in this area, I don't think that's a big problem. I guess I am attempting a rather crude textual analysis of the meaning of "regulate" and "Commander-in-Chief" from a policy point of view. In a way, this is a special case of the general problem of distinguishing legislative and executive power, but because it focuses specifically on military affairs, the degree of deference to the executive must be a bit larger for both pragmatic and Constitutional reasons.
2.13.2006 7:42pm
Steve:
The Truong decision refers to a "constitutional minimum" which Presidential action in regards to foreign intelligence surveillance must satisfy.

It seems to me that adherents of the Powerline position are arguing that the constitutional minimum must also be the maximum.
2.13.2006 7:55pm
Haynesworth:
Orin,

I'm not sure if I can help. You're right that compromise requires two parties, obviously, but I wouldn't call what the court did "deferring" to a compromise--I'd say referring to it. I see a big distinction between the two. As for whether a compromise of any sort can alter the constitutional balance, I would rest on my War-Powers-Resolution argument, and say "no." The executive and Congress can't agree to the line-item veto, or to the procedures in Chadha, and I don't see how foreign policy is special, except for half the people always seem to despise whoever is President.

The real problem we're having is that I think the rules of surveillance are found in the Fourth Amendment--only--whereas others think Congress can add to those rules. It seems to me, it's either all or nothing as far as statutory oversight of another branch's express powers is concerned; "input" is a constitutionally meaningless concept. Somebody has to have the last word, right? Usually that's the courts, of course, but as Truong (among others) demonstrates, this is one of the few areas where courts feel inexpert--for now. This may sound question-begging, but bear with me as I think "aloud" of an example that may illustrate a similar structural problem. What if Congress passed a statute declaring that the use of drug-sniffing dogs requires a special warrant from a court, for whatever reason, despite SCOTUS cases (and constitutional history) to the contrary based on the Fourth Amendment? The problems are similar to those encountered here. First, what would the constitutional basis for such a statute be? (Likewise, what is the enumerated power of Congress under which FISA was passed? I don't know--"necessary and proper," "common defense," perhaps. Without having looked into it, I'm skeptical.) In any case, such a law would intrude on, if not usurp, the express--if Marbury can be deemed express 200+ years later--function of another branch. Indeed, we have a semi-preview of this fight in the upcoming jurisdiction-stripping case. My point: structurally, I see little difference between Congress removing judicial power to perform its historical Article III function to say what the law is, a function that is implicit in the Constitution at best, though seemingly accepted so long it's indelible, and Congress cabining the executive's power to conduct foreign policy, which has a more explicit foundation in addition to similarly persuasive history. Moreover, as I see it, the remedy for the presumed FISA violation--even if it's as simple as SCOTUS telling POTUS to abandon the program and follow FISA--would seem to require a court to do just what the Truong court said it was not competent to do, and that's to discount the unique ability of the executive in this area. (I add that, govt. white paper aside, those arguing that FISA upset the 200-year understanding of executive power bear the burden of proof on this one; even AG Bell didn't seem to think it went as far as FISA's modern defenders. Also, I understand that habeas may be partly statutory, thus weakening my argument, but the common-law pedigree and constitutional mention of habeas make it a different animal.)

This is but a long way of saying, a la Posner, that these are fundamentally political, not legal, questions. I don't necessarily think that's not by design--but citing precedents, whether done by law professors or the AG, doesn't resolve the age-old question of American government. As I have noted, the American people are comfortable with courts having the last say, generally. But in this case the courts' say would be that Congress is in charge to the extent it says it is, effectively allowing partial oversight of the president, which is a recipe for inaction. That's why FISA presents a different proposition, and why (according to polls) the American people reject the notion of congressional authority over this program. I think rightly so.
2.13.2006 7:58pm
Kovarsky (mail):
can we call it "the powerline reflex" instead of the "powerline position?"
2.13.2006 7:59pm
billb:
Mr Lederman,

What's the difference between Congress binding the President and Congress passing a statute that binds the President?

I'm imagining a two similar but differently constitutional statues--one that says "The POTUS shall not kill any person in the White House," and another that says "No person shall kill another in the White House."

Is this the distinction that you mean? I.e. that Congress can pass a law binding all Americans equally and then hold the President accountable to it, but it may not pass a law specifically limiting the executive branch? What if the POTUS is the only person has the rights/priveleges/powers/etc. that are limited by said generically applicable Act of Congress? Am I off in left field here? Did you mean something else?
2.13.2006 8:00pm
Haynesworth:
I appreciate and will assume as settled M. Lederman's discussion of the enumerated power behind FISA. But I must quibble with the notion that War Powers was "constitutional." This might be so in the sense that it was duly enacted pursuant to those same powers, and signed by the President.

But most Presidents have seen fit to violate it, which illustrates the pro-FISA illogic (to say nothing of the impeachment vitriol): calling a statute "constitutional" in such a procedural sense doesn't turn violations of that statute into violations of the Consitution. And in that case, like this one, a court's going to have to explain why abridgement of the superior right created by the Constitution is permissible without amdendment.
2.13.2006 8:13pm
Noah Klein (mail):
KMAJ,

"Every president, since FISA's inception, has, in one way or another, proclaimed it can not infringe on constitutional executive powers. Is it possible we are not asking the right questions ? How binding are the beliefs/decisions of a previous president on those of a future president ? Just as the rules of one Congress are not forced upon a succeeding Congress, does a similar concept apply to the executive branch ?"

If the executive signs a bill passed by both houses of Congress that relates to executive power, then it is binding on later executives. Just as if Congress passes a bill that the president signs which would not allow former congress members to become lobbyists for two years, this would binding on later congress members. Since this is a process that requires the approval of both branches (or a super-majority of the legislature), laws are binding on later governments (both executive and legislative). There are laws that require future Congresses to perform certain actions. The Budget Resolution is a perfect example.

Noah
2.13.2006 8:22pm
A.S.:
Yikes! I see I've p*ssed Orin off, so I'll try to respond to a couple of the points that were adressed to me and then bow out and attend to my clients.

Medis writes: So, I'd like to hear from A.S., or other who agree with him. Do you agree that your model of separation of powers, at least in this case, is based on SUBJECT MATTER.

Well, my analysis is certainly based on subject matter, but I'm not sure that is so different that "kind". To my mind, the "subject matters" over which the President has exclusive authority are all of the executive "kind" of power -- vetoing legislation, firing appointed officials, conducting military campaigns. Chief Justice Chase writes in his separate opinion in Ex Parte Milligan "Congress has the power not only to raise and support and govern armies, but to declare war. It has therefore the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief." How does one interpret the difference between what Congress can regulate and what the Executive can do? Seems to me a matter of subject matter more than kind - Congress can legislate (its "kind" of power) on all military-related subjects other than command of the forces and the conduct of campaigns. How would you interpret the difference?

Orin writes: the DOJ memo pointedly refuses to give a test, and instead offers a way of resolving the NSA issue without addressing the Article II issue squarely.

No, I don't think that's right. The "test", as applied to this case, is the two questions I posted (both found on page 29). To be sure, the White Paper offers a way of resolving the issue without addressing that test, but in the end, it says if you apply the test as to whether Congress can bind the Executive Branch in this case, it argues you can (p. 35). So I don't understand how that is "avoiding" the question.

He further writes: if you are not familiar with this area yourself, I don't why you have been so confident that you are right on this issue. ... Also, why do you defer to the DOJ brief?

I don't know that I am confident or not, in the sense that I think a court would agree with me. I have an opinion on what the law on the subject is. As I said, I'm not an expert in the field, so discount my opinion accordingly.

I don't know that I "defer" to the brief - I am just pointing out that it articulates the "test", with respect to this case.

Prof Lederman writes: Indeed, I even think there are some limits that the Commander-in-Chief Clause, in particular, places on the reach of statutes -- although I'd be hard-pressed to think of a statute imposing substantive limits on the President that the U.S. Congress would ever actually enact over the President's veto (or with his signature) and that would transgress those limits.

Which is exactly my point - according to Prof Lederman, there are NO real life examples of actions over which the Commander in Chief clause would give the exclusive authority to the Executive Branch. Any such actions are purely theoretical. That's a perfectly legitimate position to take, but, again, I think that makes the President into a glorified agency head, completely subservient to Congress's whim.

He further writes: the 60-day limit in section 5(b) of the War Powers Act ... -- they're all constitutional.

Obviously, that is a VERY contentious point. I don't mean this as a neener-neener, given Prof Lederman's service in the Clinton administration, but when President Clinton violated the 60-day limit during the Kosovo campaign, does he really think that President Clinton "I recognize that section 5(b) is constitutional but I'm going to violate it anyway"? I don't think so. He took the position it was unconstitutional (CRS notes: "The President did not seek such a 30 day extension, noting instead that the War Powers Resolution is constitutionally defective.") (Although a year later OLC tried to argue that appropriations for Kosovo constituted authority, even though there is a specific provision of the WPA that says they don't.)
2.13.2006 8:33pm
Noah Klein (mail):
Billb,

"What's the difference between Congress binding the President and Congress passing a statute that binds the President?"

Congress binding the President would be something like a bicameral resolution that attempts to bind the president. Statutes have to either agreed to by both branches or they have to meet a certain burden. I am sorry for answering for Mr. Lederman and I hope I got it right.

Noah
2.13.2006 8:50pm
Tom Holsinger (mail):
This discussion looks to me exactly like a point John Yoo made in The Powers of War and Peace - that the limits of a President's war powers vs. a vs. Congress are determined in a political, not legal, struggle.

Which means that Presidents will win given Congress' adversion to taking responsibilty for anything important.

At some point legal and consitutional disputes in this area are merely another version of "politics conducted by other means". Only unlike war, such disputes are of only narrow and partisan interest.
2.13.2006 8:54pm
Medis:
srp,

I agree with you about what Congress cannot do directly (which is direct particular operations). But I disagree somewhat about the courts. Unlike Congress, the courts traditionally do deal with specific cases, so I don't think there is anything inherently wrong with the courts adjudicating particular actions.

Rather, the limits on the judicial power of the courts are different. Perhaps the most important limit is the "case or controversy" requirement, which means in part that the courts have jurisdiction only when particular, adverse, and legally-protected rights are at stake. So, they can't set policy, or even issue advisory opinions about the law. But if the law protects some particular right held by some particular person, then they can adjudicate whether the government is obeying that law in the name of protecting that right.

So, the bombing courts probably wouldn't be constitutional, because there the courts would probably just be deciding on the efficiency, desirability, or legality of particular bombing missions (at least as I understand the hypo), but without a particular adverse party. But FISA is different: there, the court is protecting the legally-protected rights of U.S. persons, who are assumed to be adverse to government surveillance for the purpose of a warrant proceeding.

And that is really a very traditional function of courts. So, I think to that extent, when Congress creates legal rights, it can also give jurisdiction to the courts to protect those rights in particular cases, provided that is done so within the limits of Article III jurisdiction.
2.13.2006 8:58pm
Greedy Clerk (mail):
What's the difference between Congress binding the President and Congress passing a statute that binds the President?

Perhaps you were unaware, but statutes only get passed with the President's signature, or with 2/3 vote over a veto, and vetoes rarely get overrided. The statutes which we are talking about all were signed by the President; thus, the statute signed by the President after being passed into law by the President is what binds the President, not just Congress. It is misleading of people like AS (in AS's case specifically, I don't think he knwos what he's talking about though) to say "Congress is binding the President." Thus, any statute binding the President was signed into law by the President. That's the point. Again, I recommend people, like you know, actually read the Constitution.

2.13.2006 9:03pm
Greedy Clerk (mail):
That's a perfectly legitimate position to take, but, again, I think that makes the President into a glorified agency head, completely subservient to Congress's whim.

Would you give up with that one already AS? You already got called on that Fifth Grade debating tactic, and you didn't even bother to reply. Give up.

By the way, having read his "response" to the criticisms here, I think he could have saved everyone some time and written: Clinton did it too so there.

2.13.2006 9:10pm
Greedy Clerk (mail):
AS: I will ask this question rhetorically, because I know you will not respond: How is the President a "glorified agency head" when the statutes that bind him, he signed?!? Do agency heads get to send bills to Congress and veto bills? Do they get to make decisions about the deployment of troops in the field? Do they get to appoint judicial officers and executive officials? Please. Your little, childish, hyperbolic debating tactics are funny. You should start posting on LGF -- I am sure you would be seen as an intellectual over there.
2.13.2006 9:12pm
OrinKerr:
Greedy Clerk,

I agree with your substantive position, I believe, but your comments here are way beyond civility. Surely we can discuss these issues without hurling insults at each other. I'm probably too busy right now to go deleting all of it, but please, keep it civil.
2.13.2006 9:33pm
Medis:
A.S.,

You ask: "How does one interpret the difference between what Congress can regulate and what the Executive can do? Seems to me a matter of subject matter more than kind - Congress can legislate (its 'kind' of power) on all military-related subjects other than command of the forces and the conduct of campaigns. How would you interpret the difference?"

I would interpret it just like that: as the difference between "commanding"--directing particular operations or campaigns--which is the President's role, and "legislating"--making general rules or regulations--which is Congress's role. And those are indeed different roles, even if both apply to the same military actions during war.

But I think we agree on the difference between our models. And I have given the primary textual support in the Constitution for my model. Can you specify the textual support for your model?

You also say: "according to Prof Lederman, there are NO real life examples of actions over which the Commander in Chief clause would give the exclusive authority to the Executive Branch. Any such actions are purely theoretical. That's a perfectly legitimate position to take, but, again, I think that makes the President into a glorified agency head, completely subservient to Congress's whim."

Would you say the same thing about other areas of law? For example, in federal criminal law, the President also does not have exclusive authority--he has to act pursuant to various criminal laws, both substantive and procedural. Of course, he and his agents decide who to target for investigations, conduct those investigations, exercise prosecutorial discretion, formulate trial strategy, negotiate plea bargains, and so on. But always in the background are the requirements of federal law, and often in the foreground is a court.

In contrast, Congress itself cannot act to prosecute some particular person under federal criminal law. Indeed, even if they want to hold someone in Contempt of Congress, they have to go to a federal prosecutor, who may (or may not) submit the case to a grand jury. In short, Congress has no power to direct the enforcement of federal criminal law in particular cases. But conversely, the Administration has to stay within the limits of federal criminal law while investigating and prosecuting particular cases.

So, would you say that the President's role in enforcing federal criminal law makes him into a "glorified agency head"? Or is that just the same thing as saying he is bound to faithfully execute the law, but he is the chief officer in charge of directing the government in its performance of that task? And if so, why isn't that the same thing as saying "The executive power shall be vested in a President of the United States of America"?

Of course, I realize that it would be possible to write a constitution in which this ordinary separation of powers--between making law and executing the law--would no longer apply during war. But again, what is your textual support for the claim that our Constitution does something like that--alter this normal separation of powers--during war?
2.13.2006 9:39pm
Tom Holsinger (mail):
Medis,

The textual support is the part that goes, "We the people ..."

You assume that law is immutable. You make lots of interesting assumptions and follow them all the way to their logical conclusions regardless of how odd the results seem to everyone else.
2.13.2006 9:56pm
Medis:
"Everyone else", Tom? Not quite.

But anyway, I take it you are dismissing the importance of a written Constitution, since you didn't get past the first three words. And some countries do not in fact live under a written Constitution--but we in the United States do.
2.13.2006 10:00pm
Noah Klein (mail):
Tom,

"We the people..." does not address this specific issue. We all know the people are the ultimate power in our system of government, but that does not help to determine whether the president has exlcusive powers in a specifc "subject matter."

Noah
2.13.2006 10:02pm
JunkYardLawDog (mail):
Isn't footnote 4 in Troung, just dicta to explain why the court chose not to decide something in that area? I prefer the dicta in the FISC court that is the specialist appellate review court in this matter, and citing Troung said that FISA would be unconstitutional to the extent it impinged upon the President's Article II inherent authority.

Orin and others have criticized this supposed dicta in the FISC case, but now want to make a big deal out of the 4th Circuit's dicta in footnote 4 (which only implies indirectly at best a criticism of a strong Article II power while FISC decision states directly the proposition for which it stands).

If we are going for battling dicta, then I'll go with the more recent case, the case decided by the FISA's FISC appellate court specialists as be controlling over the dicta which is indirectly implied in footnote 4.

Says the "Dog"
2.13.2006 10:04pm
M. Lederman (mail):
1. I do not think that a President is bound to consider a statute constitutional just because his predecessor signed it. The point of the signature is simply that Congress cannot, without an extraordinary supermajority of both houses, restrict the President unless the President assents. That's a fairly huge limitation on what Congress can do.

2. Haynesworth writes: "most Presidents have seen fit to violate [FISA]." Dead wrong. No President before this one has done so.

3. AS runs out the old canard that Clinton declared section 5(b) of the War Powers Act to be unconstitutional. Wrong. As far as I know, the Clinton Administration never took a conclusive view on it, and at OLC we always presumed that compliance was required. On Kosovo, OLC went to great trouble to explain why section 5(b) was satisfied. That was a close call, and some may disagree, but there was no indication that we thought we could ignore it. And when the Kosovo conflict was challenged in Court, I believe DOJ did not argue that the WPA is unconstitutional.

AS cites a CRS Report. Note how there's no citation in that Report either for the assertion that "The President [Clinton] did not seek such a 30 day extension [on Kosovo], noting instead that the War Powers Resolution is constitutionally defective." -- because it's not true -- or for the proposition that "every President has taken the position that [the WPA] is an unconstitutional infringement by the Congress on the President’s authority as Commander-in-Chief" -- which is also false. (I'm referring here to section 5(b). Section 5(c), which would give Congress the power to halt a conflict by a concurrent resolution, has generally been deemed unconstitutional, but it hasn't been an issue, because there have been no such resolutions.)

Nixon thought 5(b) was unconstitutional, and that's one of the reasons he vetoed the WPA. But OLC concluded in 1980 that it was constitutional:

"We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of § 1544(b) of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of 'unavoidable military necessity.' This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his constitutional function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers."

4A Op. O.L.C. 185, 196.

That analysis was absoltuely right (indeed, I don't think there's a very serious argument on the other side); and although I've heard rumor of presidential rumblings about the 60-day provision's constitutionality in the Reagan Administration (citations would be welcome), the 1980 OLC Opinion was not overturned until John Yoo casually held to the contrary on September 25, 2001 -- without, of course, even citing the governing OLC Opinion.

4. BillB: No, I did not mean to distinguish between generally applicable statutes that apply to everyone (e.g., FISA) and those that apply "only" to the U.S. government (e.g., the torture statute), or to the President (e.g., get out of Cambodia by a date certain). Congress has powers to enact either type -- and I don't think it makes much of a constitutional difference (except that general statutes are sometimes construed not to apply to the President).

5. I wish people would use their real names here. No one's writing anything that will trigger an NSA investigation or anything!
2.13.2006 10:14pm
OrinKerr:
JunkYardLawDog,

No, I believe that's wrong. Footnote 4 in Truong was explaining why the passage of FISA didn't require a different result in the Truong case itself. I believe it's not dicta.

Says the "Professor."
2.13.2006 10:36pm
Perseus:
What puzzles me is Orin Kerr's assertion that "the Fourth Circuit was deferring because it believed Courts should not interfere with Congress and the Executive negotiating a compromise on the rules of surveillance."

As I read it, the Court was deferring because it is "inexpert in foreign intelligence." If the reason for the Court's deference is a lack of expertise, it should not matter whether there is a "binding" compromise between the legislative and executive branches since either of the two branches acting alone (let's assume it's the executive) would possess more expertise (and capacity for "adjustment") than the judiciary in formulating standards of conduct.
2.13.2006 10:55pm
Bruce Hayden (mail) (www):
This whole thing seems to be going around in circles, partly I think because Carter's AG made some statements about FISA.

- A bill becomes law when it is approved by both houses of Congress and signed into law by the president. To the extent it is Constitutional, it binds future presidents just like it does the one signing it.

- But one president's view about the Constitutionality of a law and whether it is applicable in certain situations has no weight with any other president, nor, really with that president. He can change his mind later, just like another president later can disagree. Thus, Bell's views on FISA have no real weight beyond those of any of the rest of us here.

- Ditto, of course, for any personal opinions of any legislators who voted for any given bill that ultimately went into law.

- But preambles and the like that are voted upon as part of a bill, such as the preamble to the AUMF that has been quoted several times in other threads, may have some weight. This can have a big impact on the Constitutionality of a law, in that the courts often look here to see what Constitutional power grant was utilized to justify, and thus allow, Congress to enact the legislation.

- Committe reports may also have some weight, but aren't definitive, and some Justices put more weight on them than others do.

I only do this to try to clarify what everyone seems to be saying to each other, as they all talk around each other. And I probably did miss something, and if I did, sorry.
2.13.2006 11:00pm
Tom Holsinger (mail):
My point in citing the preamble was to remind people that the Constitution was written by and for the people of the United States, not by and for the lawyers of the United States.

The error I seek to correct is an assumption that there are legal solutions for fundamentally political questions. War is a political question.

The legal world is not the real world. And the real world is very messy.
2.13.2006 11:01pm
Medis:
Indeed, Tom. My favorite part of the Constitution is:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land . . . but not in the real world."
2.13.2006 11:19pm
billb:
I'd like to thank (almost) everyone who responded to my query for presuming that I'm a simpleton who hasn't read my Constitution. Clearly Congress can only act in contravention of the President's veto when they employ a 2/3 supermajority to override it, and Congress and the President act together when statutes are otherwise passed (such that statutes may bind a future POTUS). But that wasn't the question I was getting at.

Marty, while you addressed my question, you didn't answer it! You said that my example wasn't what you were getting at, so what were you getting at?. Did you mean any more than both the Congress and the President must (usually) act together to bind the President? Or was there something else to that statement? (Sorry, to dwell. It just seems out of place to me.)
2.13.2006 11:24pm
Kovarsky (mail):
Perseus,

If you look at the thread above, you will find the answer to your question. The footnote says that courts are not going to import the content of 4th amendment constitutional jurisprudence into a context where it arguably does not apply. It cites FISA as an example of a statutory warrant regime.

The footnote expressly encourages the use of the "legislative process" to work through the warrant regimes of areas where the 4th amendment warrant requirements are relaxed or do not apply.

That legislative process has been used: FISA. Nothing in the footnote implies that the court is not competent to adjudicate what FISA means - the words that are the product of the legislative process it encourages.

Understandable confusion, but important distinction.
2.13.2006 11:39pm
srp (mail):
Medis: Your justification for Congress inserting judges into the chain of command doesn't really succeed. First, saying that it's okay for Congress to put judges into decision making over signals intelligence because judges traditionally rule on warrants is begging the question. The intended and inadvertent targets of military action have no right to legal due process, certainly in advance of such action (compensation for violations of law or policy after the fact, maybe). The whole issue is whether warrants can be required in the course of pursuing military operations. Unity of command in a military force is a pretty fundamental concept--without it, there really is no Commander-in-Chief. Whether or not an individual right is involved, you cannot have judges directing and vetoing military action without compromising the chain of command. It is precisely the particularistic, fact-based nature of judicial decision-making that moves it from "regulation" to "meddling."

Second, the bombing example and the signals intelligence example are exactly equivalent. A particular individual subject to potential bombing could try to protest that he was not a legitimate target. But Congress could not set up a special bombing court to rule on attack missions that might hit this individual, or require showings of proof, or any other such specific intervention into the command process. They could outlaw bombing altogether, refuse to fund bombing missions, etc. But there is no legitimate way to square the executive power of C-in-C with the micromanagement of particular operations entailed by either the new, aggressive interpretation of FISA or the hypothetical bombing court.
2.13.2006 11:50pm
Grand CRU (mail):
"As far as I know, the Clinton Administration never took a conclusive view on it, and at OLC we always presumed that compliance was required. On Kosovo, OLC went to great trouble to explain why section 5(b) was satisfied. That was a close call, and some may disagree, but there was no indication that we thought we could ignore it. And when the Kosovo conflict was challenged in Court, I believe DOJ did not argue that the WPA is unconstitutional."

This seems to be the same tack that the Bush administration is taking with the DOJ white paper. In his Senate hearing, AG Gonzalez stressed repeatedly that the administration is not claiming that the AUMF overrides FISA; instead, the claim being made is that FISA's escape clause is satisfied by AUMF. One can argue whether the escape clause exists, as a few Senators did, but, so what? It does not appear that the administration is arguing that FISA is unconstitutional; by contrast, it is arguing that FISA must be read to contain an escape clause or else the constitutionality of FISA must be adjudicated, and that under the doctrine of constitutional avoidance it would be more prudent to do the former. But I think the prudence of selecting the former over the latter depends on how good is the case that FISA is constitutional or unconstitutional. Surely, that art. 1, sec. 7 was satisfied is necessary, but it cannot be sufficient: over the entire institutional history of the Supreme Court, almost every Congressional statute that has been invalidated by the Supreme Court as unconstitutional was passed by the art. 1, sec. 7 procedure. So the court will have to examine the substance of FISA ... or dodge the bullet. If a case came before the court, how could the Court avoid examining the substance of FISA/comparing FISA against the Constitution, without reading FISA, AUMF, and the Constitution to be consistent with each other? I realize there are a multiplicity of outcomes, but just can't see any federal court taking pains to poke holes in the administration's position, given that the end result will be a political football that will not endear the judiciary to about half of the population. It makes perfect sense for the judiciary to punt to the political branches and write another footnote four. And I would expect the Supreme Court, of all courts, to do exactly what it did in the Schiavo case: nothing.
2.13.2006 11:58pm
Kazinski:
I think footnote 4's implication is clear, if Congress thinks the President violated FISA, let them enforce it.
2.14.2006 12:30am
Tom Holsinger (mail):
Medis,

While I respect your courage in following your assumptions all the way to conclusions about the constitutionality of a hypothetical statute prohibiting a President from using tanks or aircraft in war, your judgment is a different matter.

And in this particular case the subject is academic comparable to medieval theological arguments as to how many angels can fit on the head of a pin.

We're not talking civil law here. Separation of powers issues, particularly those involving the war power, require more concreteness, especially given the Supreme Court's results-oriented reasoning (decide the outcome first and then devise a justification which ignores inconvenient contrary precedents).

Which means finding a justiceable controversy. Absent new legislation which is not remotely on the horizon given Congress's outright flight from responsibility (grandstanding and camera/fund-raising events are not legislation - consider my past comments on Senator Specter), this subject seems only academic.
2.14.2006 12:45am
Noah Klein (mail):
Bruce,

"But one president's view about the Constitutionality of a law and whether it is applicable in certain situations has no weight with any other president, nor, really with that president. He can change his mind later, just like another president later can disagree. Thus, Bell's views on FISA have no real weight beyond those of any of the rest of us here."

This is true. A president can change his mind and a later president can have a different than the previous president. This is perfectly fine, if the president has no desire to change the effect of the later law or executive order (War Powers Act). Or if the president changes an executive order, it is perfectly fine. For example, the first Bush administration made a rule about spending for family planning organizations that the government funded around the world and Clinton changed it and the Second Bush changed it back. The difference here lies in the fact that Bush circumvented a law and didn't change an executive order or just register his opinion. He has to obey the law or try to change it, whether he agreed to the constitutionality of the law or not. He had a third option too; he could sought a judicial opinion on the law, but he didn't go for that option either. He choose to make the decision by himself. This is not the way our system works and it is this action that is unprecedented.

Kazinski:

Give them time, they might just do that. Either way though, that's not much of a defense for the president's action, is it?

Noah
2.14.2006 12:47am
Medis:
srp,

You say: "The intended and inadvertent targets of military action have no right to legal due process."

From where are you getting this principle? Insofar as, say, a U.S. citizen has a legally-protected right or interest, why wouldn't they have the right to due process before the U.S. military infringed on that right?

In any event, this isn't a constitutional due process issue. The question is whether Congress can protect the rights and interests of U.S. persons through statute. And interestingly, that has always been one of the purposes of the UCMJ and its predecessor, the Articles of War, dating right back to the Revolutionary War. Indeed, that was a pressing problem in the Revolutionary War, with armies literally operating in the fields of the citizens for whom they were fighting. So, the Founders sought to protect innocent citizens from becoming the targets of military action through their "rules for the government and regulation" of the armed forces.

You also say: "Unity of command in a military force is a pretty fundamental concept--without it, there really is no Commander-in-Chief. Whether or not an individual right is involved, you cannot have judges directing and vetoing military action without compromising the chain of command."

Are judges approving criminal warrants under Title III in the "chain of command" between the President and an FBI agent? For that matter, are judges conducting trials where the United States is a party, either criminal or civil, in the "chain of command" between the President and the government's attorney?

I would say clearly "no". Judges conducting trials don't issue "commands" to government attorneys in the military or administrative sense when they make rulings, and similarly judges under Title III or FISA don't issue "commands" to the FBI or NSA when they approve or disapprove surveillance applications.

You also say: "It is precisely the particularistic, fact-based nature of judicial decision-making that moves it from 'regulation' to 'meddling.'"

It certainly isn't "regulation", because that would be the job of Congress. But it is interpreting and applying the law to a particular set of facts in order to decide issues involving legally-protected rights and interests. You can call that "meddling" if you wish, but it is clearly "meddling" in a sense that Article III allows.

You also say: "A particular individual subject to potential bombing could try to protest that he was not a legitimate target. But Congress could not set up a special bombing court to rule on attack missions that might hit this individual, or require showings of proof, or any other such specific intervention into the command process."

Depending on what you were talking about, Congress might well be able to do this. For example, if Congress actually created a legal right for a U.S. person to not be subject to targeted bombing attack absent probable cause, then I think they could indeed institute a regime requiring prior judicial approval.

This actually isn't such an odd hypo--one of my favorite examples from the Revolutionary War Articles of War is an article essentially prohibiting the Army from committing "any waste or spoil, either in walks of trees, parks, warrens, fish-ponds, houses or gardens, cornfields, enclosures or meadows" unless the owner was a rebel against the states (AKA, a Tory).

I think Congress could similarly protect the property of U.S. persons from destruction by the armed forces, including even by bombing. And I think this right could be protected by some sort of judicial process, even before targeted destruction could occur.

Again, what I thought you meant was requiring the government to get approval from a court without any sort of particular adverse legal right of a particular person at stake. That would indeed violate Article III.

Finally, you say: "But there is no legitimate way to square the executive power of C-in-C with the micromanagement of particular operations entailed by either the new, aggressive interpretation of FISA or the hypothetical bombing court."

Again, this is exactly how executive power works in many areas. All sorts of government actions may require a court order first, or a legal challenge may be raised to a government action that would allow a court to issue a temporary restraining order, or so on. None of this actually places courts in the "chain of command" of the Executive Branch. Rather, it is just courts playing their ordinary role of adjudicating cases when the government's actions might impact a particular legally-protected right.

Of course, I understand your basic claim. Your basic claim is that military actions are special in that the Executive should be able to exclude the courts from playing even their normal judicial functions, and even if Congress has protected a particular right or interest with a statute and provided for judicial process.

But there is nothing in the text of the Constitution which suggests that the judicial power of the courts terminates where war begins. And I probably cannot improve on this statement from the plurality opinion in Hamdi, where your proposition lost 8-1 in the Supreme Court:

"In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet &Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."
2.14.2006 12:58am
Gordo:
Greedy Clerk:

The statutes which we are talking about all were signed by the President; thus, the statute signed by the President after being passed into law by the President is what binds the President, not just Congress.

Are you arguing that the President could sign a law abrogating his veto power, or some other blatantly unconstitutional action, and be bound by it because he signed it?
2.14.2006 12:59am
Noah Klein (mail):
Srp:

"The intended and inadvertent targets of military action have no right to legal due process, certainly in advance of such action (compensation for violations of law or policy after the fact, maybe)."

I agree whole-heartedly with this statement, but when those military actions are against U.S. citizens and resident aliens, it first must be demonstrated that they are the enemy. This is different than the Revolutionary War, War of 1812 or Civil War, when the enemy and the ally were more clearly distinguishable. In this war, the targets are U.S. citizens who logically it appears have not visibly demonstrated any allegience to the enemy (otherwise a FISA warrant would be an easy thing to get). Thus, if we give the executive the power to surveil U.S. citizens without proper oversight the actions of Nixon and LBJ are going to happen again.

Furthermore, if we extend this idea to its logical conclusion, then military actions, such as bombing or invading a home or other such military engagements, would be proper on U.S. soil against U.S. citizens and resident aliens. While some in this blog have said that, I doubt anywhere close to a majority of this nation would think that is proper.

How we treat our citizens during war must be different than how we treat a foreign enemy. If we were talking about surveiling people in Europe, nobody would care. If we were talking about bombing a suspect in Pakistan, people would probably think its a good idea. These actions being done without the procedures of FISA are fine. In fact, they are probably warranted, since this is a war. But we wouldn't think bombing U.S. citizens was ok. And so I don't surveiling U.S. citizens without proper oversight is ok.

Noah
2.14.2006 1:01am
Lev:

So here is my question for believers in the strong Article II argument: If Congress has no legitimate role in regulating foreign intelligence monitoring, why is the United States Court of Appeals for the Fourth Circuit stepping aside so that "the political branches" (plural) can "reach the compromises" as part of "the legislative process"? Doesn't this necessarily mean that the Fourth Circuit thought "the compromises" of FISA were binding on the Executive Branch?


I am puzzled by the question in bold.

Why "necessarily"?

If some questions are political questions, or similar, and are outside of the power of a court to review or outside of the ability of a court to judge, then, necessarily the question must be left to the other two branches as opposed to the judiciary having a say, and the judiciary must butt out. But, that the judiciary must butt out does not necessarily mean that both of the other two branches have a say in the question. They may, but not necessarily.

A related thing that I don't quite understand is the binding the Executive part. If a compromise binds the Executive, then the Executive could never refuse to implement actions required by a compromise, and could never challenge the the requirements of a compromise. One need only look at, for example, omnibus budget reconciliation bills and the stuff that goes in them to see the problem with that viewpoint. And I wonder if that position makes more sense than the case where a statute is enacted by overriding a veto - shouldn't the Executive be at least as bound by that "noncompromise" as by a compromise that is signed?
2.14.2006 1:06am
Medis:
Tom,

Oh, I agree that the Supreme Court would view this issue in a much more "concrete" manner. This entire species of hypo--could Congress constitutionally do something really crazy?--is not particularly illuminating for just that reason. Again, I always like to analogize such hypos to a hypo in which the President orders our armed forces in Iraq to surrender to Bin Laden. Would that be a constitutional exercise of his Commander in Chief powers? Sure. Does anyone think that the absurdity of such an action implies he has no Commander in Chief powers? Of course not. So, these little hypo games are not so interesting.

But I guess you really do think these crazy hypos show that the whole Constitution is just so much tissue paper. I don't think the Court--nor most people--would share that view. But I have heard you express your view that the People are already just short of a judge-hanging riot, so I guess you and I have a different impression of where the people stand.
2.14.2006 1:09am
Perseus:
Kovarsky: Thanks for the clarification, though I wonder if the Court would be eager to decide on any "adjustments" to the law by executive re-interpretation. The "legislative process," particularly in this area, never ceases.
2.14.2006 1:14am
Noah Klein (mail):
Grand CRU:

"If a case came before the court, how could the Court avoid examining the substance of FISA/comparing FISA against the Constitution, without reading FISA, AUMF, and the Constitution to be consistent with each other?"

I agree that I do not see a reason why the Constitution, FISA and the AUMF are not consistent with each other. Yet that does not mean that the president's program is consistent with an apporpriate reading of the Constitution, FISA and the AUMF. The "escape clause" that you discuss in your post is clearly not there when one looks at the legislative history. And this conclusion does not mean that FISA and the AUMF are inconsistent. "All necessary and appropriate force" does not mean force that violates current law. The president cannot argue that to use "all necessary and appropriate force" he must change aspects of the UCMJ that prevents the military from killing family members of detainees to yield information. This would possibly be a more efficent means to gain information and prosecute the war more quickly, but the UCMJ and other laws and treaties prevents the murder of innocents.

It is has been stated many times by many scholars of all ideologies that the proper statutory construction of these two laws states that a more general, even if its passed later, cannot overrule a more specific law. And the idea that FISA contains an "escape clause" when it states that this is the "exclusive means" to surveil in the U.S. and when it has a provision for a declaration of war is ridiculous.

Noah
2.14.2006 1:15am
Kovarsky (mail):
Kazinski,

Why do you think that? I mean what linear string of words exhibits that specific meaning? When it says "should be left to the intricate balancing performed in the course of the legislative process by Congress and the President," what makes you think that they are referring to contemporary disagreement between the executive and the legislature about whether the ratified statute should continue to apply, rather than to the process of bicameralism and presentment that defines "the legislative process performed by Congress and the President."

Let's make what you are saying explicit - you are suggesting that the footnote indicates the fourth circuit thought that the FISA statute was not subject to any judicial interpretation.

I mean an argument, something, anything, other than it's "clear." Just give me a passage from the quotation and attempt to analyze it. And we'll talk about whether the excerpt is out of context, whether the footnote is misleading in light of the context of the case, or something like that.
2.14.2006 1:17am
JunkYardLawDog (mail):
Orin,

I've only read the part of footnote 4 your reproduced, but just from reading that part I still have to disagree with your statement footnote 4 says the ruling would have gone differently under FISA.

The footnote says they would rule the same way and stay out of it for the reasons stated in footnote 4. Further, footnote 4 seems at best to be contemplating some warrant requirement for a criminal prosecution situation, but such a warrant requirement, even if it existed, wouldn't prohibit the President from conducting warrantless foreign intelligence surveillance would it? Wouldn't such a requirement just mean that the evidence couldn't be used in a criminal trial, and NOT mean that the program itself was a criminal act? Further, footnote 4 says nothing about at all about nor did it consider the possibility that FISA could be unconstitutional to the extent it impugned Article II inherent authority. Again, the FISC court did in its dicta directly consider this point and indicate what they thought the law was on whether FISA could be unconstitutional or not.

Look at all the weasel words used by the court in the first sentence of your quote:

While [FISA] suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion

Seems to me this quote does not at all say what a ruling under FISA would be, and certainly doesn't even consider the question of FISA being unconstitutional if and to the extent it infringes upon the President's inherent authority under Article II.

Says the "Dog"
2.14.2006 1:19am
Kovarsky (mail):
Perseus,

I actually think the Court is the institutional interest that probably cares least at this point.

It should be painfully obvious that the administration is trying to keep this out of the courts, even ones with the more rigorously confidential protocols.

It should be equally obvious that a sufficent portion of Americans don't really care about "separation of powers" or "checks and balances," because those are just the terms the newfangled constitutional lawyers, nee strict constructionists that the conservatives just spent the last 8 months thumping their chests about, just use to let the terrorists hit us again. Everybody reads the polls. Everyone knows this is a political loser for the left.

The administration knows, legally speaking, it is not going to win in the courts. The democrats are not going to win politically. There's going to be a compromise, but I hardly think the court is eager to leave in place overwhelming uncertainty as to whether this bizarre-never-been-understood-to-mean-this-ever-ever-ever theory-of-inherent-executive-authority actually exists.

And I only took out the hyphen between "ever" and "theory" because with the hyphen I exceeded the 60 character per word limit.
2.14.2006 1:34am
Grand CRU (mail):
"I agree that I do not see a reason why the Constitution, FISA and the AUMF are not consistent with each other. Yet that does not mean that the president's program is consistent with an apporpriate reading of the Constitution, FISA and the AUMF. The "escape clause" that you discuss in your post is clearly not there when one looks at the legislative history."

Sorry, Noah, but I don't buy your legislative history argument. I followed the Schiavo case very closely -- and I cite it here as a highly politically charged case -- and legislative history was used there in a very disingenous and cheap way. I do not remember which federal judge said that using legislative history is like looking over the heads at a cocktail party for your friends, but anyone who has examined legislative history knows it is rife with false colloquies. Congressmen often read from phony scripts, just as they do during hearings. For a judge to cite to Senator Biden's 30-minute long questions as if they are dispositive on a legal question is a joke. I just dont buy it. We'll have to agree to disagree.

I will note, however, that if one does not buy your legislative history argument, as you might admit, the argument one would be likely to accept is much like mine. Maybe I am wrong on the head count, but I think the only fierce lover of legislative history on SCOTUS these days is Breyer.
2.14.2006 1:38am
Kovarsky (mail):
JunkYardLawDog,

Those "weasel words" are from one of the cases most central to the inherent authority argument central to the administration.

I also think you are misunderstanding the footnote a little bit. Go back and read it - it says that the court will not impose the CONSTITUTIONAL CONTENT of the CONSTITUTIONAL warrant requirement, but that a STATUTE may set forth a DIFFERENT warrant requirement. This would be a very odd analytic point to put in a footnote if you believed, as those who invoke this case for the "strong" version of executive authority seem to think, that executive authority is not only "inherent" in the sense that unenumerated powers may be exercised absent congressional action, but "inherent" in the sense that those unenumerated powers can trump congressional legislation.
2.14.2006 1:40am
Kovarsky (mail):
Grand CRU,

That critique of legislative history is correct, as far as it goes. Incidentally, a similar critique of "legislative history" applied to the constitution would be the death knell for this program, because the entire intellectual project redounds to the federalist papers.

Legislative history is not particularly useful most of the time, but it does not follow that it is unconditionally not useful. It is, like any other interpretive tool, just an index for what the statute really "means." It just isn't a particularly reliable index. Why on earth would you rely on legislative history when you have more reliable indicia of statutory meaning - like the words of the statute itself (or maybe the "intentions" of some of its drafters)!

And the uses of legislative history vary - some justices will admittedly look for statements in hearings, etc. Other Justices - such as Justice Stevens - will look at legislative history to try to discern what it was precisely that the Congress agreed upon - in other words, what was the actual bargain struck.... I think some uses can be defensible.

The problem you have is sometimes statutes just aren't clear. In order to discern the meaning of statutes you can turn to "canons" of statutory interpretation, which are not really legal interpretive rules - they're rules for interpreting any text that aspires to internal consistency. You can turn to the dictionary. You can turn to legislative intent. You can turn to the structure of the statute. All are different indicia of statutory meaning. The problem is that not one of them supports the "escape clause" interpretation the administration is propounding.

So you would generally be correct - look at other stuff (I think), not legislative history. But it, like every other method of interpretation, points against the administrations "reading" of the "escape clause." I believe Medis is the one who most succinctly explains this issue, so I'll look for where he's done so.
2.14.2006 1:56am
Grand CRU (mail):
Kovarksy,

I don't agree that the Fedarlist Papers are equivalent to the musings of Carl Levin or Rick Santorum. Sorry, I just can't go there.

I also do not agree that the escape clause is a ridiculous reading. It is general practice that a statute does not blot out all prior statutes in existence (indeed, that is the practice Noah is relying on for the proposition that AUMF does not override FISA). A corollary of that proposition is that a civil statute incorporates by reference other pre-existing civil statutes in the same regime that do not conflict with it (as its background), and a criminal statute incorporates by reference other pre-existing criminal statutes that do not conflict with with it. Generally, courts read new statutes as consistent with prior ones unless they explicitly overrule other prior ones. Since the escape clause is a part of the the prior criminal statutory regime and FISA does not expressly conflict with it, there's no reason to deviate from ordinary judicial practice. I just don't see your argument, much like I didn't see the arguments of those who advocated on behalf of Terri Schiavo's parents. Arlen Specter says that the two are necessarily inconsistent, but my problem is with the "necessarily" part. One can read them as consistent, and I don't see why a court wouldn't do so, given the likelihood of a self-inflicted wound if they didn't.
2.14.2006 2:52am
srp (mail):
Medis: You persist in equating warfare with law enforcement. There is a reason that the C-in-C role gets separate billing in the Constitution. Warfare is NOT seeing that the law is faithfully executed--it is thwarting and destroying the enemy. The President is not the Commander-in-Chief of the FBI; requiring warrants for law-enforcement surveillance does not encroach upon this power. This distinction is precisely why the political debate about whether to treat the struggle against terrorists as law enforcement or warfare is so important. (Before 9/11, I was in the law-enforcement camp: Treat them as common criminals, don't dignify their delusions as being soldiers with a real political cause, uphold our system of laws as adequate to all challenges, etc. I was wrong. If I'd had any input into policy, I would say tragically, catastrophically wrong.)

Once again, I fail to see ANY limit in your view as to how much the Congress can micromanage the President's conduct of war. You first said that the bombing court was a red herring because it would be setting policy rather than deciding a case; when I pointed out that such a court could be thought of as protecting Americans abroad from getting bombed, you switched to saying that it was quite acceptable; then you complained about "crazy hypos." If you mean that you have no legal problem with the bombing court but you think Congress is unlikely to legislate it, then you need to think more about slippery slopes, smart weapons, the growing intolerance for military necessity, and Peter Schuck on the subject of "hyperlexis."

The Revolutionary War precedent is irrelevant because a) it sounds like regulation without requiring warrants in advance, b) there's no evidence that this was a good idea, and c) it predates the Constitution, which was set up specifically to cut back on Congress's power against the executive. Hamdi is irrelevant because a) we are trying to decide what the correct understanding is, not what the Supreme Court thinks it is and b) the hot pursuit of signals intelligence on a fluid battlefield is pretty different from the long-term treatment of prisoners.

Finally, the policy at issue (modulo dissimulation by the Administration to preserve operational security) is about acquiring signals intelligence from foreign enemies. Special Forces catch Joe Terrorist, grab his cellphone, and track down everyone he spoke to or is on his address list. Or the NSA intercepts radiation from his cellphone as he's dodging us through the hills of Afghanistan. Congress can regulate these activities wholesale by refusing to fund signals equipment that operates on certain frequencies, or by making it a war crime to eavesdrop, but they can't regulate them retail, by putting their agent (which is what a judge basically is, to the extent he interprets Congress's will) into the chain of command. That would be like the legislative veto on steroids.

Or, to put it simply, Congress can make rules about how the war is to be fought, and they can deploy courts to adjudicate whether anyone needs to be punished for breaking the rules, but they cannot mandate how the war will be fought while it is going on. The courts cannot have the same role in war that they do in domestic affairs because the role of the executive is different in the two spheres, as explicitly stated in the Constitution by mentioning the role of Commander-in-Chief.
2.14.2006 3:55am
Perseus:
Despite being a Hamiltonian, I'm skeptical of the claim that "Congress has no legitimate role in regulating foreign intelligence monitoring." Were I defending the Administration's policy, I would instead assert executive prerogative to violate the law on grounds of military necessity (thank you Mr. Jefferson for confirming executive prerogative).
2.14.2006 4:59am
Medis:
srp,


A few minor points:

First, I think it is important to note that I did not "equate" fighting wars with law enforcement. Rather, I analogized them. The point of the analogy is just that having a role for judges in reviewing government actions does not place judges in the "chain of command". One can still ask whether judges should play that role in military matters, but it is a fundamental mistake to confuse judicial review and military command.

Second, one of the problems I am having discussing your bombing court hypo is that you keep adding terms. Originally I thought you were talking about there being no individual, legally protected rights at stake. Then, I thought you were talking about targeting individual US persons. Now it turns out those US persons are "abroad". So, I think you need to give a complete description of what you have in mind, and then we can continue that part of the discussion.

Finally, the First Congress reratified the Revolutionary War Articles of War.

Anyway, on your general points:

First, I thought we had agreed about what Congress can do directly. They certainly cannot "micromanage" military operations--or any executive actions for that matter--through legislation.

So, I think our dispute is just about judges. As noted above, I think it is wrong to say that judges are in the "chain of command". I will now also note that is wrong to say that a judge is an "agent" of Congress "to the extent he interprets Congress's will." That description is wrong for a number of reasons.

First, unlike agents, judges are not in fact bound to act in the best interests and according to directions from Congress. Rather, the courts are an independent branch of government, and exercise the judicial power of the United States on behalf of the United States and according, ultimately, to the direction of the Supreme Court.

Second, the job of a judge is not to interpret "Congress's will" in any case. Rather, the job of a judge is to interpret and apply the LAW. Of course, some inquiry into the intent of Congress may be relevant to interpreting a law, but that is only to the extent such intent has in fact been written into a law that has passed through the Article I process. And that again explains why Congress cannot use judges as their "micromanaging agents", because insofar as they can't pass LAWS directing specific operations, their "will" with respect to individual operations is not relevant to a judge.

Again, the judge does something very different. The laws establish various general rules and protect certain rights. The judge's role is to ensure that those rules are followed and those rights are protected as provided by law. And that is very much not acting as an "agent" of Congress.

And this is why I believe the analogy to non-military contexts is useful. Whether or not the military context is distinguishable, just think for a moment if you really believe judges acting in the non-military context are the "agents" of Congress, or in the "chain of command" of the government. Neither, of course, is true. They are a third branch, with a third kind of power, and although there is an interrelation with the other branches, they are not in fact doing the same thing.

Now, finally, to what I think is the core of our dispute. I have articulated the non-military separation of powers. I believe our dispute is precisely about whether or not that same basic separation of powers does or does not apply to the military context.

Again, I have given my evidence--the text of the Constitution, and various supporting historical sources.

And I think you have begun to give yours. You are right that the Constitution specifically delegates the Commander in Chief role to the President. I think we agree that does not somehow wipe out the legislative role played by Congress in war, as specifically enumerated in Article I. But since Article III does not specifically talk about the courts during war, I agree my textual case is a little weaker.

On the other hand, Article III mentions NO subject matters in particular. Rather, in relevant part it just generally states: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," as well as all cases in which the United States is a party. I think, therefore, that insofar as Article I has enumerated a role for Congress to make laws for the military and in war, Article III automatically grants jurisdiction to the courts, because there is no exception in Article III for those particular laws.

Finally, insofar as this issue (whether the courts can play their standard role with respect to military matters as authorized by law) has been considered by the Supreme Court, as explained by the plurality in Hamdi, the Supreme Court has consistently held that the courts can play such a role.

Nonetheless, I understand your argument, and it is not beyond the pale. As I previously noted, Justice Thomas in Hamdi accepted such a view. But I think it is important to note that his view lost 8-1, and I do think the 8 had the better argument in light of the text of the Constitution.
2.14.2006 9:01am
Medis:
Oh, on "crazy hypos":

I don't mind answering them, although that is probably a bad idea from a "tactical" point of view.

But as I see it, this is the form of the argument:

Medis, you say Branch of Government "A" has Constitutional Power "P". But having P would imply that A has the power to do Crazy Thing "X". Therefore, because doing X would be crazy, the Constitution must not have granted P to A."

Does anyone actually think that is a valid argument?
2.14.2006 9:33am
Haynesworth:
Marty:

"2. Haynesworth writes: 'most Presidents have seen fit to violate [FISA].' Dead wrong. No President before this one has done so."

I was still talking about the War Powers Act when I used "it," which you bracketed to mean "FISA," and I believe this was fairly clear, though perhaps it could have been more so. I have yet to hear an explanation of whether presidents ignoring the War Powers Act were acting as unconstitutionally as this President is said to be, which was the point of the analogy.

As to OLC's views on the War Powers Act, I fail to see why its 1980 conclusion should be deemed dispositive but the current conclusions about FISA (or torture or any other controversial subject) should not, unless the criterion for correctness is agreement with the analysis or respect for the individual author.
2.14.2006 9:51am
jrose:
A.S. and Orin,

Pages 29-35 in the DOJ brief is mostly off-point as to the Constitutional question of when can Congress bind the Executive. But, maybe page 35 offers what the DOJ believes should be one test, apparently based on no existing authority.

Pages 29-35 deal with the statutory interpretation of the AUMF. The DOJ argues the canon of constitutional avoidance requires FISA to be interpreted such that the AUMF is an authorizing statute per 50 USC 1809, so long as that interpretation is "fairly possible".

On page 35, the DOJ further argues that FISA is unconstitutional as applied if it is not "fairly possible" to interpret FISA as above because, "FISA would purport to prohibit the President from undertaking actions necessary to fulfill his constitutional obligation to protect the Nation from foreign attack in the context of a congressionally authorized armed conflict ..."

That quote sounds like the makings of a test.
2.14.2006 10:00am
o' connuh j.:
Medis writes:

But as I see it, this is the form of the argument:

Medis, you say Branch of Government "A" has Constitutional Power "P". But having P would imply that A has the power to do Crazy Thing "X". Therefore, because doing X would be crazy, the Constitution must not have granted P to A."

Does anyone actually think that is a valid argument?


Er, it is.

It's called a reductio ad absurdum.
2.14.2006 10:11am
srg (mail):
Legat,

A belated reply to what you wrote:
"How does one reconcile this most recent statement of Bell's with the first two I have quoted?"

Griffin Bell once said (I forget the context) that something worked in practice but not in theory. He was being both serious and humorous. If this whole thing ever gets to the Supreme Court, I imagine it will go out of its way not to resolve a policy that might turn out to work in practice but not in theory.
2.14.2006 10:39am
srg (mail):
Medis and Professor Kerr,

I hope you will reply to Haynesworth's post of 7:55 PM. As far as I can see, you have not done so so far, and I think his remarks are at the heart of the issues.
2.14.2006 11:04am
Bart (mail):
The court was not briefed on and was not deciding whether Congress had the authority to regulate foreign intelligence gathering.

Rather, the judge who wrote this footnote is offering dicta musing that decisions regarding foreign intelligence gathering may well be a political issue that the Courts should stay well clear of because they lack expertise in this area.

Given the era when it was written, this footnote is a refreshing and rare example of judicial restraint.
2.14.2006 11:30am
jrose:
I'll take a shot at Haynesworth post.

1) The Congressional power stems form the Necessary and Proper clause.

2) There is not an agreed upon 200-year de facto acceptance that the Executive has exclusive authority in foreign policy (Barreme, Youngstown, Rasul)

3) The Truong Court did not say the executive has unique ability in this area. It said both political branches should hammer it out.

4) FISA is the result of both political branches hammering it out. It does not leave Congress in charge.
2.14.2006 11:34am
JunkYardLawDog (mail):
Kovarsky,

Those "weasel words" are from one of the cases most central to the inherent authority argument central to the administration.

The point of the weasel words is to keep the sentence from being a clear statement of prinicipal. They are equivocations indicating that things can go in either direction of what follows after the weasel words. This is the point you and it appears Orin are missing.

"While [FISA] suggests" means it implies it could be true but it also may NOT be true and we the court aren't saying one way or the other. "That it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement" means that in *some* but not ALL and perhaps not even MOST cases the executive branch can perform its function of foreign sureveillance while being subject to a warrant requirement, and we the court being a bunch of dumbasses when it comes to establishing and running the executive function of foreign intelligence surveillance will just take congress' and the President's word for it. "Thus, the Act teaches that it would be unwise for the judiciary, inexpert in foreign intelligence, to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision" says that when it comes to foreign intelligence surveillance and congress' role versus the Presidents that the court will again stay the hell out of it.

Kovarsky said:

I also think you are misunderstanding the footnote a little bit. Go back and read it - it says that the court will not impose the CONSTITUTIONAL CONTENT of the CONSTITUTIONAL warrant requirement, but that a STATUTE may set forth a DIFFERENT warrant requirement.

It absolutely does NOT say this. Respectfully, it is not I that needs to re-read the footnote. At *MOST* it says that congress may impose a requirement in *SOME* cases where the President is able to do the surveillance successfully while being subject to the warrant requirement. It actually doesn't even go that far. This is all clearly dicta, despite Orin contending otherwise. The court is in no way saying it has thoughtfully considered and is ruling anything about the boundaries of congressional authority to provide a warrant requirement in foreign surveillance, nor is it in any way saying anything about the extent of the President's Article II inherent authority and what happens when congress and the President conflict on these issues. The ONLY thing this DICTA says it that this is a political question the court is unqualified to rule upon, and that is best resolved by the congress and the President figuring out what can be lived with in *SOME* situations where they agree that complying with such a congressional warrant requirement can be done without preventing the President from performing his Article II functions.

In the current situation we have the President saying that the programs in question can NOT be done while complying with a warrant requirement under FISA, and are therefore into matters OUTSIDE of the *SOME* situations cited merely as an example by the court's dicta.

The ONLY thing stated definitively without qualifiers and weasel words equivocating their meaning in this footnote 4 dicta is tha fact that the court is unqualified to rule on this matter and should stay the hell out of such political questions.

So again in battling dicta, I go with the most recent case from the most qualified court to speak on this issue the FISC court that cites Troung among others for the proposition that FISA is unconstitutional to the extent it infringes upon the President's Article II authority. The FISC court opinion states this as though its so well settled its really a matter of judicial notice practically.

Says the "Dog"
2.14.2006 11:41am
Bart (mail):
Footnote 4 argues that the courts are generally incompetent to rule on intelligence gathering matters.

By implication, this means that the FISA court is incompetent to decide whether a particular intelligence gathering method should be granted a warrant.
2.14.2006 11:54am
Kovarsky (mail):
I'm going to try to sum up some remarks from JunkYLD and some others.

First, Orin's position is the footnote is not dicta because it was explaining why FISA did not apply. I'm not sure I agree with him there. It's not dicta as to the issue of whether FISA applies to intel itroduced in cases initiated prior to FISA, but I'm not convinced that it's not dicta for the proposition that we're debating here.

But Orin's absolutely right on the meaning of the dicta. The footnote says that in areas where the Fourh Amendment might not apply, a statute might nonetheless supply a warrant requirement. It says, where the 4th amendment does not apply, we're not going to make up the rules - i.e. import the CONTENT of the 4th amendment warrant requirement, because the 4th amendment warrant requirement may not apply of its own force.

IT THEN SAYS, of course, there MAY BE OTHER SOURCES FOR A WARRANT REQUIREMENT, LIKE FISA, THAT DETERMINE THE CONTENT of the warrant requirement in the areas where the 4th amendment does not provide a warrant requirement by its own force.

It then says, "we're not gonna make up the rules here," the "legislative process" can do that. It cited FISA as an example of the "legislative process."

The "legislative process" it is talking about is the process of passing a statute, i.e. bicameralism and presentment. The opinion says, in effect - use bicameralism and presentment - the lawmaking protocol outlined by the constitution, to furnish the CONTENT of the warrant requirement here.

We now have the product of that legislative process. It's called FISA. The court does not say it is not competent to adjudicate what FISA means, or implement the standards FISA sets forth. It was merely a statement that the legislative process was the appropriate one for coming up with a rule such as FISA.

There is not one iota of evidence in the footnote, or the rest of the opinion, that what they meant by "this is appropriate for the legislative process" was that the two congress or the courts should have to defer to the executive after the product of that legislative process has arrived.
2.14.2006 12:01pm
JunkYardLawDog (mail):
Kovarsky,

There is also not one iota of evidence in the footnote or the rest of the opinion that the court is making any ruling or even stating dicta about what happens when a piece of legislation like FISA comes up against the President's duties to protect the country at a time of war or if such legislation infringes upon the President's inherent authority under Article II to conduct warrantless surveillance.

The FISC court on the other hand has made statements about these matters and has stated the legislation becomes unconstitutional to the extent it infringes the President's constitutional authority.

Says the "Dog"
2.14.2006 12:11pm
Kovarsky (mail):
Bart, JYLD, srg, Haynesworth,

Will you please point to the proposition above with which you disagree, so we can try to narrow the focus a little bit.
2.14.2006 12:12pm
Kovarsky (mail):
JYLD,

I think we're arguing in circles here, because under the last, o, 200 years understanding, the president's constitutional authority to exercise his "inherent, unenumerated power" was limited by congressional action. So congressional action cannot limit the executives constitutional power where that constitutional power is eliminated by the very operation of the statute.

Now I think most people recognize that proposition, which is why they move to the "strong" inherent authority argument - the John Yoo argument - which it seems you have to endorse to the line of reasoning that congressional action in this field did NOT limit the executive's constitutional authority. And you are correct, if you adhere to Yoo's view of executive authority, I don't think the footnote has much to say - except that it would be odd for a court to laud the passage of legislation of a statutory warrant requirement if it thought that requirement to be unconstitutional.
2.14.2006 12:17pm
Medis:
o'connuh j.,

I agree that is probably an attempt at a reductio ad absurdum argument. But if so, the hidden premise would have to be that it is "absurd" if the Constitution does not somehow prevent each branch from using its constitutional powers in a crazy way.

But would that really be "absurd"? Do you really think that there must always be some constitutional provision preventing any possible foolish or abusive use of power? In short, do really believe the Constitution was intended to be a "fool-proof" document?

I do think this is a helpful discussion, however. I think it is true that some people start with a view of what specific actions would or would not be a good idea, and then they assume that there must be some constitutional provisions which serve to rule in the good ideas and rule out the bad ideas. However, I personally don't think that is valid assumption, and I would suggest that on reflection, it is asking a lot more out of our Constitution than it could reasonably be expected to provide.

Indeed, rather than trying to specifically authorize all good ideas and prohibit all bad ideas, our Constitution mostly lays out a set of institutions, general powers, and procedures, and then basically hopes for the best. There are some exceptions, of course--eg, the Bill of Rights takes some stands on some specific policy issues. But again, for the most part, the Constitution does not purport to decide all important policy questions.

srg,

Just an aside, but Haynesworth addressed his post to Orin, not me, and in my view we have discussed these issues adequately before.

But anyway, I'm not sure which parts of his post you think need to be addressed. And although I pretty much agree with jrose's bullet point summary, perhaps I would elaborate on one general point.

Some people have been asking why Congress would have any power to regulate government surveillance activities in excess of the requirements of the 4th Amendment. When it comes to the armed forces, I think the answer is simple: the Constitution specifically enumerates that Congress shall have the power to make rules for the government and regulation of the armed forces, and as I have noted, the Founders thought that power included the power to make laws designed to protect U.S. persons from misuses of military power. And that is what FISA as applied to the armed forces is--a law designed to protect U.S. persons from misuses of military power.

When it comes to, say, civilian law enforcement, the answer has to be a bit more complicated. But the initial question actually should be why Congress has the power to define federal crimes, and provide for their enforcement by the federal government, in the first place. And the basic answer is that the Necessary and Proper Clause allows Congress to define crimes which serve to protect the various proper functions of the federal government, and to provide for the federal enforcement of such crimes for the same reason.

But the Necessary and Proper Clause also, by its very terms, allows Congress to limit such crimes and their enforcement to what would be necessary and appropriate. Accordingly, Congress can place all sorts of limitations on federal criminal enforcement insofar as Congress thinks that federal criminal enforcement outside those limits would be unnecessary and/or inappropriate.
2.14.2006 12:21pm
Kovarsky (mail):
Orin's original point, by the way, was that it was poor form or flat-out a mistep for administration apologists to cite this case, not that it deals a fatal blow to the arguments.
2.14.2006 12:21pm
JunkYardLawDog (mail):
Kovarsky,

The footnote says that in areas where the Fourh Amendment might not apply, a statute might nonetheless supply a warrant requirement.

That statement is only correct if limited as is the footnote limited to the *SOME* situations where the President can still fulfill his duties and functions while still complying with the statutory warrant requirement. It says NOTHING about a situation where the legislation PREVENTS the President from performing his constitutional duties and functions at a time of war.

Says the "Dog"
2.14.2006 12:22pm
Kovarsky (mail):
JYLD,

It seems to me that maybe we crossed posts - I think I explained why the position you just took requires you to adhere to the "strong view" of of inherent authority? If that is the case, it's pointless to rehash those arguments here.

If there is some other reason that I am not understanding, then by all means enlighten.
2.14.2006 12:28pm
JunkYardLawDog (mail):
Kovarsky,

except that it would be odd for a court to laud the passage of legislation of a statutory warrant requirement if it thought that requirement to be unconstitutional.

Which is why the dicta in footnote 4 was LIMITED TO *SOME* situations where the President could still perform his constitutional functions in the exercise of his inherent authority while still complying with a warrant requirement. It says NOThinG about situations where the legislation prevents or on its face would prevent the President from carrying out his Article II functions at a time of war.

Orin is wrong if he says footnote 4 makes Troung a bad precedent for the pro-protect us from terrorists forces to cite. I object to your use of the purjorative "apologists". We weren't very apologetic over Miers' nomination. We just happen to believe the President needs to protect us at a time of war, and are more afraid of the paranoid classes on the left trying to save the country from their imagined boogeymen than we are of President Bush listening in our phone conversations to order pizza. We are more afraid of an imperial judiciary becoming the unelected dictators of the country than we are of George Bush declaring inherent authority to look at a Terrorist's library card.

Says the "Dog"
2.14.2006 12:33pm
KMAJ (mail):
To break it down into simple terms, it is those who support a weak executive branch versus those who see a more vigorous executive branch as necessary to fight the WoT. Those who support FISA's unilateral intervention in all foreign intelligence surveillance, as an exclusive mechanism and tool to propigate congressional oversight, seek to maintain the weakened executive created in the post-Watergate and post-Vietnam era of the 70s. Never in the history of this country has there been a weaker executive branch than that of the post 70's.

It is a pejorative mischaraterization to label those favoring a more vigorous executive branch with supporting monarchical powers. Those who want a more vigorous executive are not asking for carte blanche or a blank check to exercise unrestrained power. It is more of an argument between pre and post accountability. The executive branch should and must be aware that they will be held accountable for their decisions and actions. The public will certainly hold the executive responsible for any future attack or give them credit for preventing said attack. They will also hold the executive accountable for any abuses of power it may exercise, if egregious enough.

It is unwise policy, especially in war related events, to engage in enforcing laws because there is a 'possibility of abuse'. This NSA program provides a good example, no one has proffered that any abuse of people's civil rights has occurred that damaged anyone, yet the debate is over 'but it could' if abused. In my opinion, that is micro-managing and reductio ad absurdem (intentional exaggeration) application of law.
2.14.2006 12:34pm
Kovarsky (mail):
"Apologists" is not a pejorative term.
2.14.2006 12:39pm
JunkYardLawDog (mail):
KMAJ,

Well said!

Says the "Dog"
2.14.2006 12:40pm
JunkYardLawDog (mail):
Kovarsky,

Perhaps you didn't mean it as one, but it definitely comes across that way.

Says the "Dog"

P.S. Apologies to all for my spelling errors from time to time.
2.14.2006 12:41pm
Kovarsky (mail):
JYLD,

It's odd that you would say that the 4th circuit that when it was writing that footnote that FISA might regulate wartime intel gathering. Apparently you think the court missed:

"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, oral, and electronic communications may be conducted."
2.14.2006 12:44pm
Kovarsky (mail):
please insert "missed" after "circuit" and before "that"
2.14.2006 12:48pm
Kovarsky (mail):
JYLD and KMAJ,

Look, I hate the word "side." But it's your "side" that is citing this case. Orin's post makes sense. It is strange that you would cite a case in support of the "inherent authority" argument where it advances precisely the understanding of inherent authority - authority that exists in the absence of a statute - that the administration seeks to reject.

It's not a good case for the administration. That's the point of the post.
2.14.2006 12:51pm
JunkYardLawDog (mail):
Kovarsky,

It didn't have to miss the exclusivity provision, it was just citing it ONLY to the extent there were *SOME* situations where the President could peform his constitutional duties while adhering to FISA. If the court felt that the exclusivity clause was the be all end all of Presidential authority vis a vis foreign surveillance then there would have been absolutely no reason for the court in footnote 4 to say in *SOME* situations. It would have said in *ALL* situations.

In fact your point raises an argument on my side of the issue. The court knew of the exclusivity provisions of FISA yet obviously wasn't ready to say they bought that hook, line and sinker as a constitutional and proper limitation upon the President's entire constitutional authority to conduct foreign surveillance. Hence they cited only to those *SOME* instances where FISA's requirements could be met while NOT interfering with the President's constitutional duties and inherent authority.

It seems to me they were saying or implying here in footnote 4 that to the extent FISA doesn't interfere with the President's duties, obligations, and inherent authority that FISA requirements are proper or constitutional.

Even MORE reason to cite Troung by the Pro Protect Us forces, and also supports what the FISC court judges said in citing Troung as support for their statements reqarding FISA's limits vis a vis the President's inherent authority.!!!

Orin, you've done it again. Just for the other side!

Says the "Dog"
2.14.2006 12:52pm
JunkYardLawDog (mail):
Kovarsky,

where it advances precisely the understanding of inherent authority - authority that exists in the absence of a statute

The above statement is an incorrect statement of what Troung says in footnote 4 and elsewhere, as I've been trying to elucidate in my last several posts.

We cite it because it doesn't say what you say it says. The FISC court apparently didn't view it as saying what you say it says either.

Says the "Dog"
2.14.2006 12:57pm
Kovarsky (mail):
Hence they cited only to those *SOME* instances where FISA's requirements could be met while NOT interfering with the President's constitutional duties and inherent authority.

That is a flagrant misrepresentation of the footnote. They cited to some instances where the executive may be subject to a warrant requirement pursuant to the operation of the legislative process. They did not say that the government only had to adhere to the warrant requriement "some" of the time when FISA was applicable.

And I would again add, now for the 13th time, that your reading of the footnote requires you to accept Yoo's position that inherent authority is not a function of congressional action in an area of unenumerated power. Would you do me a favor and clarify if you agree or disagree with that proposition?
2.14.2006 1:01pm
Haynsworth:
Jrose:

Point 3: read Truong--it has several paragraphs on the uniqueness of the executive, including a paragraph on his unique constitutional competence.

Point 2: Youngstown, at 587, indicates the qualitative difference between the two cases. The Court said that labor disputes on private property in U.S. did not fall within the "theater of war." International phone calls directly to/from known AQ is a different matter. Rasul, of course, was a habeas case. The opinion went out of the way to address the pre-Constitution pedigree, and the constitutional implications, of habeas. In addition, conceptually, the question in Rasul was whether Congress, by habeas statute, had limited the courts, not the executive. I discussed these issues above. Last, Barreme featured a congressional enactment that abrogated the common law and authorized seizures on the high seas. The president's order went beyond Congress's act, not contravened it, and the Court held simply that the commander was not excused from common-law damages for trespass by virtue of following the president's order. There was no "constitutional" violation or intra-branch conflict of the sort claimed here; at most, it might be seen as a qualified immunity predecessor rather than a structural precedent.

Point 4: "FISA is the result of both political branches hammering it out." This is known as assuming the truth of the proposition you are trying to prove. We are discussing whether, in light of War Powers, line-item, Chadha, etc., Congress and the President can hammer out tasks that (some say) are allocated by the Constitution. I say no. But...I commend Richard Epstein's textual analysis of Article II in yesterday's WSJ, as it is far more precise and persuasive than analogies to the cases you (and others) allude to.
2.14.2006 1:04pm
KMAJ (mail):
Kovarsky,

In this string, the only 'side' I claim is that of correctly parsing the english language used in footnote 4. On those grounds, your argument falls short of supporting your claim of what it says, and instead relies strictly on the manipulation of legalese. I understand and respect your opinion regarding whether the executive has a strong case or not, but I reject your claim that is the only valid or sound position, or that footnote 4 weakens the counter argument to your position.
2.14.2006 1:05pm
Kovarsky (mail):
Haynsworth:

Point 3: that talks about the executive's competence compared to the court imposing a warrant requirement. It doesn't say anything about the court enforcing a legislatively imposed warrant requirement.
2.14.2006 1:07pm
Bart (mail):

Kovarsky stated: It's not dicta as to the issue of whether FISA applies to intel itroduced in cases initiated prior to FISA, but I'm not convinced that it's not dicta for the proposition that we're debating here.


To the extent that this footnote can be read to imply that Congress has constitutional authority to apply FISA to the gathering of intelligence against foreign groups and their agents in the United States, how can it be considered anything but dicta?

That issue was not before the court of appeals. Nor was the judge briefed on the applicable law before he started musing about FISA, political issues and the competence of courts to rule on the propriety of intelligence gathering.


But Orin's absolutely right on the meaning of the dicta. The footnote says that in areas where the Fourh Amendment might not apply, a statute might nonetheless supply a warrant requirement. It says, where the 4th amendment does not apply, we're not going to make up the rules - i.e. import the CONTENT of the 4th amendment warrant requirement, because the 4th amendment warrant requirement may not apply of its own force.

IT THEN SAYS, of course, there MAY BE OTHER SOURCES FOR A WARRANT REQUIREMENT, LIKE FISA, THAT DETERMINE THE CONTENT of the warrant requirement in the areas where the 4th amendment does not provide a warrant requirement by its own force.


To my knowledge, every single court to rule on the subject of intelligence gathering has recognized that the President has an inherent authority as CiC to direct and conduct warrantless intelligence gathering on foreign groups and their agents in the United States. When I speak in the generic about "foreign intelligence gathering," this is to what I am referring.

Therefore, to impose a warrant requirement on the President's collection of foreign intelligence under the Jackson doctrine, Congress needs to be able to point to a concurrent constitutional power which authorizes it to do so.

By definition, if the 4th Amendment does not require warrants for this type of foreign intelligence gathering, then Congress cannot be deriving its power to enact FISA from the 4th Amendment.

I have been unable to find any enumerated power set forth in Article I which gives Congress the power to direct or conduct foreign intelligence gathering. Indeed, the fact that the Constitution only assigns commander in chief powers to the President is pretty clear evidence that Congress does not share those powers.

There is no court precedent of which I am aware finding that Congress has an inherent implied power to direct or conduct foreign intelligence gathering.

The necessary and proper clause merely gives Congress the power to enact statutes pursuant to its enumerated powers.

The argument that the necessary and proper clause is itself and enumerated power which gives Congress the power enact statutes to limit or eliminate the President's Article II powers is simply untenable. The only means provided in the Constitution to change the document is the amendment process. To allow Congress enact statutes to limit or eliminate the President's Article II powers (or the Court's Article III powers) would essentially reduce the other branches to nullities and destroy the concept of separation of powers.

If Congress does not have a concurrent constitutional power to direct or conduct foreign intelligence gathering, then the Jackson concurrence in the steel plant seizure case simply does not apply. There are no dueling constitutional powers to balance here. The Constitution makes clear that the President alone is the CiC.

To my thinking, this is a classic separation of powers case. After Nixon's abuse of his authority as CiC by spying on domestic political opponents, Congress overreached and enacted FISA in an attempt to limit the President's power to conduct true foreign intelligence gathering.

However, Congress no more has the power to enact a statute to direct foreign intelligence gathering than the President has the power to enact spending bills by signing an executive order.

Each branch has its own powers and foreign intelligence gathering belongs to the President.
2.14.2006 1:08pm
Kovarsky (mail):
Bart,

Article I, Section 8:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
2.14.2006 1:12pm
Kovarsky (mail):
Bart,

I think whether it's binding authority or dicta is not particularly relevant to the administration's disingenuous citation of it.
2.14.2006 1:17pm
Bart (mail):
Kovarsky:


Article I, Section 8:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;



While the judiciary has stretched the term "commerce" way beyond its common meaning to the point where Congress may now regulate anything remotely touching the economy, I am not aware of any court which has held that "commerce" in this clause somehow applies to foreign intelligence gathering.
2.14.2006 1:19pm
Kovarsky (mail):
Bart,

I don't know anybody who seriously advances the position that Congress could not act pursuant to its commerce authority to do this. Maybe there is an argument to that effect, but I'm not going to hunt it down for you right now.
2.14.2006 1:22pm
Bart (mail):
Kovarsky:


I don't know anybody who seriously advances the position that Congress could not act pursuant to its commerce authority to do this. Maybe there is an argument to that effect, but I'm not going to hunt it down for you right now.


You are corresponding with one and I doubt I would be alone...

I would be delighted to discuss any precedent that you can cite which supports your position.
2.14.2006 1:28pm
JunkYardLawDog (mail):
Kovarsky:

That is a flagrant misrepresentation of the footnote. They cited to some instances where the executive may be subject to a warrant requirement pursuant to the operation of the legislative process. They did not say that the government only had to adhere to the warrant requriement "some" of the time when FISA was applicable.

And they didn't say the President had to adhere to FISA when FISA interfered with the President's ability to perform his constitutionally mandated duties and responsibilities.

Here is what they said in the very first line of footnote 4:

While [FISA] suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement

They begin by limiting their observations about FISA to those instances where the President can "conduct at least some types of foreign intelligence surveillance" while complying with FISA. They are saying NOTHING about instances where complying with FISA would prevent the President from conducting needed foreign intelligence surveillance. In light of the exclusivity clause of FISA if the court were of the opinion that legislation could rule the day in this area exclusively then the introductory clause cited above makes absolutely no sense. The introductory clause used by the court ONLY makes sense if the court did NOT believe or was NOT offering any opinion on congress' ability to command the President to adhere to a warrant requirement in FISA in those isntances where the President could NOT conduct needed foreign surveillance while complying with FISA.

Far from detracting from my arguments Troung AND footnote 4, in light of the exclusivity clause of FISA actually SUPPORTS my side of things. Clearly the court in Troung did NOT believe FISA and its exclusivity clause was the last word on Presidential authority to conduct warrantles foreign intelligence surveillance. If they had believed this, then they wouldn't have limited footnote 4 in its first sentence to *at least some instances" where the President oculd comply with FISA and still conduct needed surveillance.

Orin's point is wrong, imho.

Says the "Dog"
That is a flagrant misrepresentation of the footnote. They cited to some instances where the executive may be subject to a warrant requirement pursuant to the operation of the legislative process. They did not say that the government only had to adhere to the warrant requriement "some" of the time when FISA was applicable.

And I would again add, now for the 13th time, that your reading of the footnote requires you to accept Yoo's position that inherent authority is not a function of congressional action in an area of unenumerated power. Would you do me a favor and clarify if you agree or disagree with that proposition?


And I would again add, now for the 13th time, that your reading of the footnote requires you to accept Yoo's position that inherent authority is not a function of congressional action in an area of unenumerated power. Would you do me a favor and clarify if you agree or disagree with that proposition?
2.14.2006 1:29pm
JunkYardLawDog (mail):
Please disregard everything after my signature. That was left there by mistake.

Also, in answer to your Yoo question. I'm not sure how to answer that question, as I'm not really familiar with his writings. I don't think the answer affects our discussion either.

Says the "Dog"
2.14.2006 1:30pm
Kovarsky (mail):
While [FISA] suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement

That is the sentence of the footnote in question here. I'm not particularly sure why you are focusing so much on this sentence on not on the next three or so, which completely slam the executive's brushback of congress... but ok.

That statement is subject to one of two interpretations:

(1) yours - the statement admits that the president only has to get a warrant under FISA sometimes

(2) mine - the statement says that FISA demonstrates there are some situations in foreign intel gathering that can be subject to a statutorily imposed warrant requirement

is that a fair presentation of the disagreement?
2.14.2006 1:35pm
Tom Holsinger (mail):
srp,

Medis believes there are no limits on the degree to which both Congress and the Judicial branch can encroach on the Executive provided they do so together. He seems to have has down from a previous position that there were no limits on the degree to which either could so separately.

Medis truly believes that if Congress passes a law and the Supreme Court upholds its constitutionality, the Executive has no Consitutional authority to defy them.

Medis,

Here's another Osama question. Congress passes a law commanding the President to surrender the United States to Osama bin Laden. The Supreme Court upholds the statute against all constitutional challenges. Must the President then comply with the law?

Is there any situation whatever in which you feel the President would be justified, under the Constitution, in disobeying a law enacted by Congress and upheld by the Supreme Court?

This goes directly to the issue of each branch of government having a duty to resist encroachment by the other branches. Either that duty exists or it doesn't.

Do you believe such a duty exists? Do you believe the President has such a duty even when both Congress and the Supreme Court say he is wrong (say it in a procedurally proper way)?
2.14.2006 1:37pm
Kovarsky (mail):
JYLD,

I just mean that if your idea of inherent authority is that it can trump an otherwise constitutional exercise of power of congress, i don't want to get into that again.

But if your theory of inherent authority is that - as it is generally understood - the president can act under unenumerated article II authority to the extent that congress does not regulate that field - then FISA cannot abridge "inherent" authority because the very operation of the statute strips the president of inherent authority, because congress has now legislated in the field.
2.14.2006 1:41pm
Kovarsky (mail):
Tom,

Medis truly believes that if Congress passes a law and the Supreme Court upholds its constitutionality, the Executive has no Consitutional authority to defy them.

Most people believe that.
2.14.2006 1:45pm
Some Guy:
I don't know...surely this is a legal debate as well as a political one. Surely this will be ruled on by a court sooner or later?

I think the limit that Congress can place on executive power seems to be related to criminal prosecution. If it's a domestic person (and it seems especially if it's a domestic person conspiring with a terrorist organization) then there may be criminal concerns to take into consideration. Those would suggest requiring a warrant for surveillance. FISA seems written with an eye towards law enforcement and the treatment of criminal evidence uncovered during surveillance. What does any of this have to to with foreign affairs? It must be in FISA because that's what its authors were worried about. So FISA doesn't think it's a check on Article II powers at all. Instead, it thinks it's a way for the executive to gain additional powers of domestic surveillance, i.e. with the approval of courts.
2.14.2006 1:46pm
Tom Holsinger (mail):
oops, make that "He [Medis] seems to have backed down from his previous position ..."
2.14.2006 1:47pm
Some Guy:
"Most people believe that."

Yes, surely this is true. Tom, are you really imagining a situation where a president would blatantly disregard a Supreme Court ruling?
2.14.2006 1:51pm
KMAJ (mail):
Kovarsky,

What is the definition of some ? This seems reminiscent of the Clintonesque defintion of 'is'.

While [FISA] suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement


Any common sense or logical parsing clearly equates that "it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance that are not subject to a warrant requirement". Any other interpretation is simply not logical and violate deductive reasoning principles. If only 'some are possible while being subject to' it only holds to reason that also 'some are possible while not being subject to'.
2.14.2006 1:54pm
Kovarsky (mail):
KMAJ

"I like some sports."

"I like some sports, and my enjoyment of baseball is evidence of that."

Nobody would read the second quote as necessarily saying that i only like "some baseball" (although I would like to have a word with whomever invented the designated hitter rule!).
2.14.2006 2:00pm
Some Guy:
"Congress passes a law commanding the President to surrender the United States to Osama bin Laden. The Supreme Court upholds the statute against all constitutional challenges. Must the President then comply with the law?"

Let me one-up you on this: say the President doesn't comply with the law. Further say that Congress them impeaches and convicts the President, removing him from office. What if the President refuses to recognize this act--what happens next?

Or worse--let's say both the President and the VP are removed from office. Both refuse to acknowledge the act. Who is the head of state: the President, or the Speaker of the House? Whose orders should the military obey? (In your opinion, I mean.) And what is the Constitutional basis for your decision?
2.14.2006 2:00pm
Tom Holsinger (mail):
Some Guy,

Yes, because IMO the Supreme Court no longer recognizes limits on its authority. It is forcing the issue. We shall see if Chief Justice Roberts manages to brake this runaway train.

Which includes a clear pattern of deciding outcomes first and then inventing whatever supporting analysis is deemed suitable to justify it, regardless of contrary precedent. The latter are ignored rather than being overruled - there is no effort to even distinguish them.

This is hubris in spades. IMO it has occurred because they've been there too long. Term limits for federal judicial officers are desperately needed.
2.14.2006 2:00pm
Tom Holsinger (mail):
Some Guy again,

That is why the Constitution requires a 2/3 vote in the Senate for impeachment trials. 2/3 is a big difference from a simple majority. Ask Andrew Johnson.
2.14.2006 2:04pm
KMAJ (mail):
Kovarsky,

Your analogy falls short, the subject of your 'some' is sports, not baseball. The opposite of your statement would be there are 'some sports you do not like', and that you do not like curling is evidence of that.

btw, I agree with you on the designated hitter rule.
2.14.2006 2:04pm
Kovarsky (mail):
I'm sorry guys, I'm going to cut off my participation in this discussion to the extent it's not limited to the meaning footnote 4.
2.14.2006 2:06pm
colts41 (mail):
Bart said:
The necessary and proper clause merely gives Congress the power to enact statutes pursuant to its enumerated powers.

The argument that the necessary and proper clause is itself and enumerated power which gives Congress the power enact statutes to limit or eliminate the President's Article II powers is simply untenable. The only means provided in the Constitution to change the document is the amendment process.

That is simply wrong, based on the express language of the N&P clause:
To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

As well, an early commentator on the Constitution -- St. George Tucker -- said about the N&P clause in 1803:
The plain import of this clause is, that congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It neither enlarges any power specifically granted, nor is it a grant of new powers to congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted, are included in the grant.

See St. George Tucker, 1 Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia Appendix 286-90 (1803).

What's also notable about the early constitutional commentators -- such as Tucker and Joseph Story -- is their focus on Congress, and the concern that Congress, not the president, would be all-powerful. That was particularly true in light of the N&P clause. See, e.g, James Madison, Federalist No. 44 at 305 ("If it be asked, what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning?").
2.14.2006 2:10pm
Kovarsky (mail):
KMAJ,

Right, and there is "some" foreign intelligence gathering that does not have to comply with a warrant requuirement, and that foreign intelligence gathering is activity not covered by FISA.
2.14.2006 2:14pm
KMAJ (mail):
Kovarsky,

With all due respect, I do not think defining what the importance of the use of the language in footnote 4 represents, especially the use of 'some', is diverging from the meaning of footnote 4. In fact, it is crucial to that determination.

I respect your right to discontinue arguing your position, but claiming a reason for doing so because 'some' may be extending the scope of the debate rings hollow, I don't think those conversing with you are doing so. I think I have stayed focused on the language of footnote 4, with some verbose proffering in some posts.
2.14.2006 2:16pm
Medis:
Tom,

You ask: "Congress passes a law commanding the President to surrender the United States to Osama bin Laden. The Supreme Court upholds the statute against all constitutional challenges. Must the President then comply with the law?"

First, as an aside, I would believe that law was unconstitutional.

Second, yes, in such a circumstance the Constitution would require to the President to comply with this law.

Somewhat ironically, I think you and I have a similar idea of what would happen next in this scenario. Depending on the context, the people might well decide that the United States Constitution had a good run, but it had finally outlived its usefulness. So, the Constitution might get summarily scrapped, ala the Articles of Confederation, and we might adopt an entirely new constitution for the United States.

Nonetheless, I think there are two notable differences between our views on these crazy hypos. First, I don't pretend that somehow our Constitution is capable of handling such a scenario on its own terms. Rather, as noted, I think we would end up having to scrap the Constitution to deal with this sort of scenario.

Second, I gather you think the people are on the brink of doing something exactly like that, and this FISA issue might push them over the edge. Personally, I think we are nowhere remotely close to such a point.
2.14.2006 2:19pm
Kovarsky (mail):
KMAJ,

I was not referring to your post. I was referring to Tom's post about judicial term limits.
2.14.2006 2:21pm
KMAJ (mail):
Kovarsky,

Now you try to add language that is not relevant to the text:

Right, and there is "some" foreign intelligence gathering that does not have to comply with a warrant requuirement, and that foreign intelligence gathering is activity not covered by FISA.


While you can say that, it is not a factual addition, but an opinion. You are going beyond the words used to add your own interpretation. The only factual presentation that can be put forward is that some may comply and some may not comply with a warrant requirement, it does not specify FISA warrant requirements as an exception.
2.14.2006 2:25pm
KMAJ (mail):
Kovarsky,

I apologize for assuming you were referring to my posts.
2.14.2006 2:28pm
Some Guy:
Well, to help tie it back to the discussion (as I admittedly helped drag it off course a bit), the question at hand I think is, how do we know when the executive and the legislature have reached a compromise that governs foreign intelligence? That is, when is the executive bound to obey the legislature? Can the executive ignore the standards the legislature enacts? (And so the extreme case would be, what if SCOTUS found the standards constitutional--would the executive still be bound to obey them? That example is where the discussion threatens to get off track...)
2.14.2006 2:29pm
William Goodwin (mail):
KMAJ, Kovarsky's point, I think, is that the Truong court was simply stating a fact: FISA was not an attempt to regulate all foreign-intelligence gathering. It was only an attempt to regulate foreign-intelligence gathering in the U.S., so that it required the executive to "seek prior judicial approval for some foreign intelligence surveillance" -- surveillance conducted in the U.S. -- but not for all (obviously, foreign intelligence conducted abroad is exempt).

To get back to Orin's original point, then, the reason Truong is a bad precedent for the strong Article II argument is that the Truong court accepts, in these footnotes, that Congress does have a role in regulating foreign-intelligence surveillance in the U.S., which is precisely what the administration is rejecting in its defense of the NSA program.
2.14.2006 2:33pm
Kovarsky (mail):
KMAJ,

No I'm not.

While [FISA] suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement...

The negative of that proposition is that there ARE some types of foreign intelligence surveillance that cannot be conducted pursuant to a warrant requirement.

And FISA indicates that negative through the positive in the quote - it is an example of where foreign intelligence surveillance CAN be subject to a (statutorily imposed) warrant requirement.

Your interpretation is that somehow that sentence means that only some FISA activity is subject to FISAs warrant requirement. That may be the case, but it's certainly not what the footnote is saying. If you believe the plain language of that footnote to be ambiguous (which it is not), then why does the rest of the footnote discuss the proposition that statutes can impose warrant requirements, rather than the proposition that wome warrant requirements in enacted statutes are invalid?
2.14.2006 2:33pm
Kovarsky (mail):
Some Guy,

the question at hand I think is, how do we know when the executive and the legislature have reached a compromise that governs foreign intelligence?

when they enact a statute.

That is, when is the executive bound to obey the legislature?

it doesn't have to obey the legislature, it has to a obey a statute.
2.14.2006 2:38pm
KMAJ (mail):
Kovarsky,

We are now entering realm of endless parsing, because to take your argument further, we now deal with the words 'suggests' and 'possible', those are not words of affirmation of FISA, which your interpretation 'suggests'. Instead, it is a statement of ambiguity which lends itself to supporting neither position.
2.14.2006 2:41pm
Some Guy:
Kovarsky--well, personally I completely agree!
2.14.2006 2:44pm
Kovarsky (mail):
William,

Thanks, and on a more abstract level, the point I've been trying to make about the "strong" interpretation of inherent authority - if your understanding of inherent authority does not take as an input whether Congress has passed a statute, then it is odd to cite to a case in which a court seems to quite expressly say that the presence or absence of a statute does in fact matter.

I understand the "strong" argument to go further and say, "well, but certain types of foreign intelligence gathering authority fall under the 'weak' interpretation of inherent authority, and other types fall under the 'strong' interpretation," but I believe at the point that you are drawing distinctions like that you are in big trouble in terms of any doctrinal or historical support you can draw for that argument.
2.14.2006 2:45pm
JunkYardLawDog (mail):
Kovarsky,

I just mean that if your idea of inherent authority is that it can trump an otherwise constitutional exercise of power of congress, i don't want to get into that again.

To the extent a statute infringes upon the powers of the President which derive directly from the constitution, then that statute is not constitutional. So its not a matter of trumping a constitutional statute. Instead its a matter of the constitution invalidating a portion of the statute as applied to a certain situation. A statute that purports to vest the exercise of the pardon power in the attorney general or purports to take away from the president the pardon power in general is trumped by the constitution's delegation of authority to the President in this area. Same for C in C powers. The framers had enough with war by committee during the revolutionary war. Today's congress and the left want to return to war by committee.

As regards:

That statement is subject to one of two interpretations:

(1) yours - the statement admits that the president only has to get a warrant under FISA sometimes

(2) mine - the statement says that FISA demonstrates there are some situations in foreign intel gathering that can be subject to a statutorily imposed warrant requirement



I don't see any substantive difference between (1) AND (2) so its difficult to answer your question. Given FISA's exclusivity clause what is your basis for saying *some* situations in foreign intel gathering. *Some* implies there are some other situations where FISA would apply. How can this be with FISA's exclusivity clause. Don't you need to rephrase (2) to state *ALL* foreign intelligence activities are governed by FISA without exception, including foreign surveillance that can NOT be conducted AND comply with FISA at the same time?

Footnote 4 says FISA shows us that *some* (meaning part but not all) necessary foreign intelligence activities can be conducted by the President while still complying with FISA. Necessarily, footnote 4 means then that *some* (meaning part but not all) necessary foreign intelligence activities can NOT be conducted by the President and at the same time comply with FISA. Footnote 4 and the Troung case do NOT address or attempt to address the situation of the exclusivity clause of FISA or the legality of the President not complying with FISA in order to conduct necessary foreign intelligenced surveillance which can't be conducted in compliance with FISA.

Hence Troung and footnote 4 support and do not detract from my side. That's why the FISC court's opinion citing Troung did so in support of there being inherent authority of the President to conduct foreign intelligence surveillance that does not comply with FISA and renders FISA unconstitutional to the extent it seeks to regulate this exclusive Presidential power.

Says the "Dog"


Says the "Dog"
2.14.2006 2:46pm
JunkYardLawDog (mail):
Ooops, should have been:

*Some* implies there are some other situations where FISA would NOT apply.


Those little words mean a lot, like not, and, or, etc.

Says the "Dog"
2.14.2006 2:51pm
Just an Observer:
Some Guy: Tom, are you really imagining a situation where a president would blatantly disregard a Supreme Court ruling?

Tom Holsinger: Yes, because IMO the Supreme Court no longer recognizes limits on its authority. It is forcing the issue. We shall see if Chief Justice Roberts manages to brake this runaway train.

As someone who enthusiastically supported the nomination of John Roberts, as well as Samuel Alito, I have every confidence that your estimation is quite wrong. Bush would find himself opposed by a unanimous court.
2.14.2006 2:53pm
Medis:
As an aside, I note people are starting to drop the qualifier "exclusive" again when claiming that Congress cannot interfere in any way with the President's exercise of his consitutional powers. Again, that proposition is true only to the extent that the Constitution entirely delegates that power to the President.
2.14.2006 2:56pm
Kovarsky (mail):
Dog,

To the extent a statute infringes upon the powers of the President which derive directly from the constitution, then that statute is not constitutional. So its not a matter of trumping a constitutional statute.

Of course a statute cannot trump the constitution, but a variety of constitutional doctrines make the constitutionality of an action itself turn on the presence or absence of a statute: preemption, article III jurisdiction, to name a couple off the top of my head.

A statute that purports to vest the exercise of the pardon power in the attorney general or purports to take away from the president the pardon power in general is trumped by the constitution's delegation of authority to the President in this area.

the pardon power is an express grant. of course congress cannot diminish it (see Klein). that is not relevant to the inherent power argument.

I don't see any substantive difference between (1) AND (2) so its difficult to answer your question. Given FISA's exclusivity clause what is your basis for saying *some* situations in foreign intel gathering. *Some* implies there are some other situations where FISA would apply.

FISA does not govern all foreign intel gathering. Not even close. There is plenty of foreign intel. gathering that is not governed by statute (see in re Sealed)

That's why the FISC court's opinion citing Troung did so in support of there being inherent authority of the President to conduct foreign intelligence surveillance that does not comply with FISA and renders FISA unconstitutional to the extent it seeks to regulate this exclusive Presidential power.

cite?
2.14.2006 2:58pm
colts41 (mail):
JYLD said:
To the extent a statute infringes upon the powers of the President which derive directly from the constitution, then that statute is not constitutional.


Apart from offering no authority for this proposition, it's contradicted by the Constitution's Art I, Sec. Necessary-&-Proper Clause.

The N&P Clause says, in relevant part, that Congress shall have the power:
To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


I'm sorry, JYLD, but I just don't see how the Constitution supports your proposition, quoted above.

(And reliance on the pardon power I don't think helps. As others have said, is there any doubt that Congress can pass a law criminalizing the payment of money to the President in exchange for a pardon. That's been done already under 18 USC 201. So, while the president retains the unlimited authority to pardon, the execution of that power has been made subject to a law deemed by Congress to be necessary and proper to the carrying out of such power.)
2.14.2006 3:00pm
Tom Holsinger (mail):
IMO FISA will not be the subject of further litigation, and so not present the opportunities some seen to look forward to. It isn't adversarial, so the only possible litigation it might create would be an appeal by the President from a ruling of the FISC. We've seen one.

News stories since, notably the Washington Post one about Judge Kollar-Kotelly and its related Wall Street Journal editorial, plus Judge Robertson's resignation from the FISC, indicate to me that that the Bush administration has successfully compromised or suborned the FISC. I don't see any further appeals.

Furthermore the Bush adminstration is clearly conducting some warrantless electronic surveillance of terrorist suspects and terrorist-related phones/computers in the U.S. The degree of compartmentalization built into the FISC indicates that any patterns of conduct violating FISA, nominally or substantively, are unlikely to come to the attention of an individual FISC judge.

So I repeat, the Bush administration likes the status quo and won't upset it. The judges don't have standing to appeal anything and are subject to criminal prosecution if they leak any information obtained in their FISC capacity (it's all communications intelligence).

So we're left with new legislation as the only possible means of creating justiceable controversies in this field, and that is the one thing Congress is least likely to do.

So any on-point discussion is truly academic. I see no reason to stick to the subject.
2.14.2006 3:01pm
Noah Klein (mail):
KMAJ and JYLD,

"While [FISA] suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement."

What's suggesting "that it is possible for the executive branch to conduct...?"

It's FISA. This is a demonstration that the court agrees that the areas of intelligence that FISA regulates can be subject to a warrant requirement. The court might object to a statute that regulates the conduct of foreign intelligence outside the United States or something of that variety, but it most certainly does not indicate that what FISA attempts to regulate is outside the bounds of Congress.

And it certainly does not prove the argument "the court in Troung did NOT believe FISA and its exclusivity clause was the last word on Presidential authority to conduct warrantles foreign intelligence surveillance." In fact, it indicates the opposite.

Noah
2.14.2006 3:02pm
JunkYardLawDog (mail):
Kovarsky,

I understand the "strong" argument to go further and say, "well, but certain types of foreign intelligence gathering authority fall under the 'weak' interpretation of inherent authority, and other types fall under the 'strong' interpretation," but I believe at the point that you are drawing distinctions like that you are in big trouble in terms of any doctrinal or historical support you can draw for that argument.

I'd phrase it differently. Its really a matter of does the President have to comply with a statute when such compliance does NOT defeat the President's exercise of his Article II powers. Some are saying yes to this, but this isn't really the question presented by the NSA case.

The NSA case presents a DIFFERENT question, which is Does the President have to comply with a statute that DOES defeat the President's exercise of his Article II powers. In other words, its the situation where certain needed foreign intelligence surveillence activities can NOT be performed in a manner that complies with the statute.

In footnote 4 the Troung court is allowing for room with its equivocations and weasel words as I put it (suggests, some, may, etc.) for the situation where a statute does work to PREVENT the President from exercising his Article II powers and is deliberately avoiding saying anything about this. The implication of such avoidance is that a statute that does PREVENT the exercise of some needed type of foreign surveillance intelligence activities might well be an unconstitutional interference with the President's Article II powers is strongly present in footnote 4, imho, as a result.

Says the "Dog"
2.14.2006 3:09pm
Medis:
As another aside, I often wish the pro-Administration people could be a little more consistent and precise with their verbs. They talk variously of laws "preventing", "prohibiting", "interfering with", "infringing", "defeating", etc., the President's exercise of his powers. Of course, these verbs don't always mean the same thing, and a little more consistency and precision would be quite useful.
2.14.2006 3:16pm
JunkYardLawDog (mail):
Noah, footnote 4 is limited to those situations where compliance with FISA can be had while still being able to conduct the needed surveillance. It therefore specifically does NOT cover the situation where needed foreign intelligence surveillance can NOT be conducted and comply with FISA at the same time.

Therefore, given FISA's exclusivity clause it seems logical to me that the court was avoiding commenting in this Dicta whether a statute that works to PREVENT a needed foreign intelligence surveillance activity is or is not a constitutional requirement upon the President's Article II power.

It seems to me the Troung court had reservations about the propriety of a statute that would have the effect of PREVENTING a needed foreign intelligence surveillance activity. Hence their limitation of footnote 4 to those situations where it is possible for the activity to be done AND to comply with FISA at the same time.

Says the "Dog"
2.14.2006 3:18pm
Kovarsky (mail):
JYLD,

I have made this point several times. What you keep referring to as "Article II" powers are a combination of enumerated and unenumerated authority.

The authority to act without an enumerated article II grant AND WITHOUT CONGRESSIONAL ACTION is the traditional understanding of "inherent authority." So the executive's authority to act is "constitutional" whenever that authority is exercised pursuant to an enumerated article II grant.

But under the traditional understanding of inherent authority, this type of presidential action WOULD CEASE TO BE AUTHORIZED BY ARTICLE II by operation of the statute, because this type of executive power is not "enumerated" enumerated in Article II, like the pardon power is.

Now you can get around that criticism - but you can only do so by accepting the "strong" theory of inherent authority, which is Yoo's interpretation, which has been largely discredited.
2.14.2006 3:23pm
Medis:
JYLD,

Who gets to decide if a certain act of surveillance is "needed"?
2.14.2006 3:27pm
JunkYardLawDog (mail):
Medis,

At a time of war, the President.

Says the "Dog"
2.14.2006 3:33pm
jrose:
Haynsworth:

You had earlier stated that "Congress [was] cabining the executive's power to conduct foreign policy." I suppose you meant to qualify that to within a "theatre of war". That qualification would distinguish Youngstown, assuming we accept that the entire USA, including potentially my PC and telephone, is in a theatre of war.

However, let's assume the premise "there is a de facto acknowledgement that the President has exclusive authority over foreign policy within a theatre of war" is true. In such a case, how can an act of Congress which authorizes a court to pass judgement on the legality of detentions in a theatre of war be valid (the act abridges the President's exclusive authority)? Or, how can a ship's captain be held liable for exercising his exlcusive authority in a theatre of war? I conclude the premise is wrong.

My statement that "FISA is the result of both political branches hammering it out" is an observation of fact that counters your claim that FISA leaves Congress in charge. Whether or not both political branches are Constitutionally permitted to hammer it out, is a separate matter.
2.14.2006 3:39pm
JunkYardLawDog (mail):
Kovarsky,

How does your understanding of inherent authority handle this question:

Congress passes a statute commanding the President to use the 101st Airborne on a specific war mission; or commands the President to use and ONLY use an enumerated list of weapons from his arsenal of weapons; or commands the President to get a judicial warrant upon probable cause before using nuclear weapons against an enemy?

These are all statutes affecting the C in C power. Under your definition of inherent authority of the C in C power are these statutes unconstitutional interferences with the President's C in C Article II powers or not? My reading of what you wrote is that none of these would be unconstitutional because the C in C power is unenumerated. Am I wrong on this?

Says the "Dog"
2.14.2006 3:44pm
William Goodwin (mail):
JunkYard, you're simply misreading the footnote(s). Just to make things clear, in Footnotes 2-4, the Truong court is making three separate points:

1) FISA regulates some foreign-intelligence gathering (that is, foreign-intelligence gathering that takes place in the U.S.), but not all. The Truong court does not even hint that there is anything unconstitutional about Congressional regulation in this field -- on the contrary, it goes into great detail in Footnote 4 about precisely what the regulations require, and in Footnote 2 the court says that with FISA Congress made explicit its intent to "limit the constitutional power of the President" over foreign intelligence. (Again, a power can be constitutional while not being exclusive.) The Court says nothing, explicitly or implicitly, to suggest that FISA is unconstitutional.

2) It is not the job of the judiciary to impose a warrant requirement (a requirement that some might argue would be imposed by the 4th Amendment) on foreign-intelligence gathering. Instead, the question of how foreign-intelligence surveillance in the U.S. should be regulated should be "left to the intricate balancing performed in the course of the legislative process by Congress and the President" (emphasis added). That is, quite explicitly, the rules regarding foreign-intelligence gathering, at least in the U.S., are not to be set solely by the executive branch, but rather by Congress and the President together, via "the legislative process." This is an explicit rejection of the strong Article II argument.

3) Finally, the Truong court also argues that the establishment of the FISC would actually give the judges on the court special expertise in foreign-intelligence gathering, thereby making them able to make intelligent decisions about foreign-intelligence warrants (in the U.S.) This is what the Truong court meant when it wrote that "the Act suggests that it is possible for the executive branch" to conduct some foreign intelligence under a warrant requirement. In the body of the Truong opinion, the court said that one important reason for judges to refrain from intervening was that their lack of expertise and the requirements of speed, etc., made it difficult (if not impossible) for warrants to be used effectively in regulating foreign-intelligence gathering. In the footnote, the court says that the establishment of FISC changes that, and that FISA clearly assumes that it is feasible to conduct foreign-intelligence gathering in the US under the FISA warrant requirement. "Possible" in that sentence means "do-able" or "feasible." It is a statement about practicality, not about theory or constitutionality.

In any case, taken together, these three footnotes reject, without ambiguity, the idea that FISA represents an unconstitutional encroachment on the power of the President. As Orin said at the start, this makes Truong a very poor case for defenders of the strong Article II argument to cite.
2.14.2006 3:52pm
Tom Holsinger (mail):
Medis,

I really appreciated your asking "Who gets to decide if a certain act of surveillance is "needed"?"

It perfectly demonstrates so many things.
2.14.2006 3:52pm
Noah Klein (mail):
JYLD,

"Therefore, given FISA's exclusivity clause it seems logical to me that the court was avoiding commenting in this Dicta whether a statute that works to PREVENT a needed foreign intelligence surveillance activity is or is not a constitutional requirement upon the President's Article II power."

This would not make sense. What would the point of a law which regulates a certain type of intelligence, but says that the president can violate it whenever he thinks it is proper? There would be no point to the law in that case. You are reading things into the court's footnote and the law which just aren't there.

Noah
2.14.2006 3:59pm
Medis:
JYLD,

So if the President can decide whether or not he need sot violate FISA, and that is solely a matter of his discretion, how is FISA a law in any sense? Doesn't that just make it a suggestion?

By the way, although you asked Kovarsky, I can't resist crazy hypos. So ...

"Congress passes a statute commanding the President to use the 101st Airborne on a specific war mission"

A: Unconstitutional attempt to issue a specific command.

"commands the President to use and ONLY use an enumerated list of weapons from his arsenal of weapons"

A: Unconstitutional attempt to issue a command to the extent it orders the President to use a weapon. Similarly unconstitutional to the extent it commands not using a particular set of weapons, if that command is limited to a particular instance. However, a general ban on using certain weapons would be constitutional.

"commands the President to get a judicial warrant upon probable cause before using nuclear weapons against an enemy"

A: Probably an unconstitutional expansion of Article III jurisdiction, provided that the "enemy" has no legally-protected, adverse right. However, it is not clear what the "probable cause" in this hypo is probable cause of ... if it is probable cause that the target IS an enemy, then you should be talking about a "suspected enemy". And for certain sorts of "suspected enemies," Congress might be able to provide a legal procedure by statute, in which case there might be Article III jurisdiction.
2.14.2006 4:09pm
Medis:
Tom,

Yes, I think it is indeed an illuminating question. As Noah also points out, a military "law" which is inapplicable as soon as the President decides the military "needs" to violate this law is not a law at all.

And that point is important because all laws passed pursuant to the enumerated powers of Congress with respect to military matters would also not be laws at all if they were subject to being voided by the President.

So, the idea that Congress can only use its enumerated powers to pass such "laws" is really equivalent to saying that Congress cannot actually use its enumerated powers to pass laws at all.

Which one might suggest is a bit of a problem for this view.
2.14.2006 4:15pm
Just an Observer:
Tom Holsinger: News stories since, notably the Washington Post one about Judge Kollar-Kotelly and its related Wall Street Journal editorial, plus Judge Robertson's resignation from the FISC, indicate to me that that the Bush administration has successfully compromised or suborned the FISC. I don't see any further appeals

Several law professors -- some who think the NSA program is legal and some who don't -- have pointed out that such a test case easily could have been initiated by the administration, but was not. The opportunity to start such a case, and get a ruling up or down on the merits of Bush's legal theory, remains today. Yet the adminstration obviously expects to lose in the courts, so no test is ever made.

If your limited point is that the courts are stymied for the time being, you may be right.

But here in the Court of Public Opinion, Bush's refusal to seek judicial vindication is an indicator of the weakness of his position.

In other posts you have asserted that Bush is so strong he would defy the Supreme Court if necessary. RFLMAO. The fact is, he is so afraid of the courts that he won't go near them.
2.14.2006 4:16pm
Tom Holsinger (mail):
Medis,

A shorter and more effective what-if would be, "What if Congress prohibited a President from killing anyone in the course of using his war powers, by specifically including the killing of enemies in war in a revised definition of the federal murder statute?"

I can certainly imagine some people advocating this, though none of them are here.
2.14.2006 4:16pm
Bart (mail):

colts41 (mail):

Bart said:

The necessary and proper clause merely gives Congress the power to enact statutes pursuant to its enumerated powers.

The argument that the necessary and proper clause is itself and enumerated power which gives Congress the power enact statutes to limit or eliminate the President's Article II powers is simply untenable. The only means provided in the Constitution to change the document is the amendment process.

colts replied: That is simply wrong, based on the express language of the N&P clause:

To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.



OK, I don't see the part of this clause which allows Congress to effectively amend the Constitution by enacting statutes which limit or eliminate the President's Article II powers.


As well, an early commentator on the Constitution -- St. George Tucker -- said about the N&P clause in 1803:

The plain import of this clause is, that congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It neither enlarges any power specifically granted, nor is it a grant of new powers to congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted, are included in the grant.

See St. George Tucker, 1 Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia Appendix 286-90 (1803).



Tucker is one of my favorite commentators. I cited him in my Law Review article on the Second Amendment in Law School...

I believe this commentary completely supports my observation that the Necessary and Proper Clause was meant to provide a mechanism for Congress to enact statutes consistent with its "express powers" and is not a grant of new powers to the Congress.

Thank you for the quote. I'll incorporate it in my arguments on this issue in the future...


What's also notable about the early constitutional commentators -- such as Tucker and Joseph Story -- is their focus on Congress, and the concern that Congress, not the president, would be all-powerful. That was particularly true in light of the N&P clause. See, e.g, James Madison, Federalist No. 44 at 305 ("If it be asked, what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning?").


Given the current arguments that the N&P clause somehow allows Congress to limit or eliminate the President's Article II authority, Madison, Tucker and Story were correct to be concerned about an all powerful Congress. Since the Courts allowed Congress to run over the States with an expansive interpretation of the Commerce Clause, this concern should be more of a fear.
2.14.2006 4:20pm
William Goodwin (mail):
The point of this thread wasn't, I thought, to rehash the already well-worn arguments about whether FISA is constitutional or not. It was to deal with the Truong footnotes, and whether or not they support the administration's contention that Truong supports the strong Article II argument. At this point, it seems obvious that Truong doesn't support that argument, which may be why we keep wandering off into hypotheticals, etc.
2.14.2006 4:38pm
Kovarsky (mail):
Bart,

I agree with William, we are way off topic. But again, Congress does not derive the authority to pass FISA exclusively from the N&P clause. It derives it from the article 1, section 8 grant of authority to regulate foreign commerce. "international communications" are foreign commerce. that is not a debatable point.
2.14.2006 4:59pm
colts41 (mail):
Bart:

I'm truly at a loss in regard to your response that you don't/can't see where the N&P clause expressly empowers Congress to pass laws that regulate the president's executiion of his enumerated Art II powers.

The N&P clause says that Congress shall have the power:
To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

I read the phrase "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" to expressly permit Congress to pass laws that regulate the manner in which "any Department" and "any Officer" of the U.S. Government execute of "all other powers vested by this Constitution in . . . [such] department or officer."

Please, tell me what I -- and the 14 co-authors of the letter discussed by M. Lederman -- are missing about the N&P clause.
2.14.2006 5:00pm
Medis:
Tom,

And an equally "effective" hypo is: What if the President ordered the military to not kill anyone, even in war?
2.14.2006 5:01pm
KMAJ (mail):
Noah,

Once again, we get into parsing language. Had the court said FISA affirms, as opposed to 'suggests', you would be on strong footing. Instead you make the mistake of using 'suggests' as a substantive confirmation of FISA, which it is not. In fact, it leaves open the 'suggestion' that FISA could be challenged. As such, footnote 4 supports no position.
2.14.2006 5:09pm
Kovarsky (mail):
KMAJ,

The court probably used "suggests" both to signal and reflect that the footnote was dicta as to issues other than whether FISA applied to the case it was considering.

I agree that it is not a categorical affirmation of constitutionality, but it hardly takes "no position."
2.14.2006 5:16pm
KMAJ (mail):
Kovarsky,

In my opinion, the court deliberately used ambiguous wording just to avoid supporting, or offering substantive opinion on, something that was not part of the case they were ruling on. In other words, it was not intended as any reference to be cited one way or the other. If they had intended otherwise, they would have chosen different words, such as 'affirms' instead of 'suggests'. I think either 'side' errs when they try to use these footnotes for argumentation of support for their position.
2.14.2006 5:32pm
Kovarsky (mail):
KMAJ,

Unfortunately, courts HAVE cited this footnote, and those have HARPED on the significance of the distinction the footnote explores - again, in re sealed.
2.14.2006 5:41pm
srp (mail):
1) OK, here's the state of play on "crazy hypos" vis-a-vis the Commander-in-Chief role and Congress's regulation thereof:

A Strategic Bombing Court that required the President to get a warrant from an Article III judge, certifying that no US persons or property would be hit, even for foreign targets (lots of Americans live, travel, or have property overseas), is constitutionally OK with Medis. Apparently, this is "crazy" because it doesn't sound like a popular thing to do so Congress probably wouldn't pass it, and couldn't get 2/3 against a probable veto. I disagree with Medis: a) it is not constitutional, because it involves another branch in specific command decisions about where to bomb, b) I can forsee political circumstances in which President Hillary Clinton could be placed under such restraints by a Republican/anti-military-coalition after some act of conspicuous and spectacular bombing ineptitude that killed a bunch of Americans, and c) future developments in the accuracy of weapons targeting may make it seem less outre (e.g. missiles that track individual signatures of some kind).

2) Medis "analogizes" war-fighting and law enforcement, which is distinct from "equating" them. Fine, but the point of the analogy is to say that they are equal in the key respect that the executive's operational commands may be countermanded by judges. This is precisely what is wrong with the analogy. (Again I note that the Hamdi precedent, besides its inherent flaws, does not apply to the real-time necessities of signals intelligence. I would add that the harm to the individual from imprisonment is much greater than from having one's phone number recorded, so Congress's regulatory role is slightly more plausible.)

3) Medis claims: "having a role for judges in reviewing government actions does not place judges in the "chain of command". One can still ask whether judges should play that role in military matters, but it is a fundamental mistake to confuse judicial review and military command."

This is question-begging. It is precisely the issue that having a judge decide on a specifc bombing target or a particular signals intercept during a war is placing him or her into the chain of command. I hope Medis is not clinging to the fig leaf that because the judge can only say no to suggested targets and not propose his own that he is then somehow not inserted into the chain of command. That would be managerially incoherent, as it is perfectly possible for an executive officer to be given such a purely reactive role, and no one would question his position in the chain of cammand. So the claim here is incorrect.

In the law-enforcement context, it is OK for judges to be in the decision-making loop. They have an express constitutional power to grant warrants, after all. The "chain of command" concept is much more limited in domestic law enforcement--we can't try insubordinate cops and imprison them or execute them, for example--because, as the Founders recognized, warfare is different. The survival of the polity may be at stake over seemingly small details ("the want of a nail") of execution in wartime; a concept of operations in which the various parts of the armed forces depend intricately on one another's synchronized actions is often the goal of the military art. Even with unity of command, it's hard to püll off. Letting judges (or legislators) act as second-guessers is exactly what the Founders were trying to prevent.

4) It is not only the courts, but the President himself who acts as an agent of Congress when he enforces the laws it passes. The Constitution says that the President shall be the exclusive agent of the Congress (the Commander-in-Chief) in fighting wars--not the courts. The nature of our system is that the Congress makes the laws and the other branches make sure that those laws are followed (except for laws that are unconstitutional). The other branches, politically, are the agents of Congress in that regard.

So, yes, the courts are acting as the agents of Congress when they say that a landowner can't build a house because an endangered species would be harmed. The law they interpret is a command of Congress.

The war powers of the Commander-in-Chief are different from the power to enforce the Endangered Species Act because there the executive branch is the sole constitutional agent. Campaigns and battles are not legislated or adjudicated--they are fought.

5) Finally, it is no surprise to me that the judicial branch rules in favor of judicial authority. That's what the view of human nature embedded in the Federalist papers would lead me to expect. Remember when the Supreme Court ruled that Paula Jones's lawsuit could go forward while Clinton was in office because it wouldn't disrupt government and no one is above the law, etc.? I admit I enjoyed that ruling in my stick-it-to-Bill viscera, but my rational mind told me that this was a classic example of judicial encroachment on the executive. It is up to the President to resist such encroachment. If his best shot is to maneuver to keep a case from getting into court at all, so be it.
2.14.2006 5:56pm
Medis:
srp,

You say: "A Strategic Bombing Court that required the President to get a warrant from an Article III judge, certifying that no US persons or property would be hit, even for foreign targets (lots of Americans live, travel, or have property overseas), is constitutionally OK with Medis."

Actually, no. As I noted above, if you keep changing your bombing court hypo, my answer might change. This latest version sounds like you are back to the courts answering some generalized policy question, with no particular, legally-protected, adverse right or interest. That once again violates Article III standing requirements.

You say: "but the point of the analogy is to say that they are equal in the key respect that the executive's operational commands may be countermanded by judges."

Again, no, The point of the analogy is that judges don't issue "commands" or "countermands" when approving or disapproving warrant applications. In general, you treat many things as identical--countermands, disapproving warrants, saying "no" for policy reasons--and I don't think those are actually identical exercises of power. Indeed, precisely what makes them different is that they are exercises of different kinds of power.

You say: "Letting judges (or legislators) act as second-guessers is exactly what the Founders were trying to prevent."

What is your evidence for this?

You say: "It is not only the courts, but the President himself who acts as an agent of Congress when he enforces the laws it passes."

That is wrong, and it is very important to see why that is wrong. Among the things that must be true in agent-principal relationship are: (1) the agent must be bound to act on behalf of the principal; and (2) the agent must be bound to follow direct instructions from the principal.

Even when the President is exercising his constitutional duty to take care that the laws be faithfully executed, the President satisfies neither of those conditions with respect to Congress. First, he is not bound to act on behalf of Congress. Rather, he is bound to execute the law. Second, he is not bound to follow direct instructions from Congress. Rather, Congress must pass laws, and must do so through the process in Article I, and may only do so within the limits otherwise provided in the Constitution, and it is only these laws that the President must faithfully execute.

The same thing is true of the courts. Again, they are not bound to act on behalf of Congress--their role is to adjudicate cases and controversies according to the law. And also again, they are not bound to take direct instructions from Congress, but only to follow laws that have met the above conditions.

I can't stress this enough--this is exactly what the "separation of powers" means under our Constitution. There are in fact systems without such a separation of powers. There are, for example, Prime Ministers who are agents of Parliaments. Similarly, there are judicial systems which are subservient to Legislatures, and indeed in which the Legislature sits as the highest court. But that is not our system.

Finally, you say: "it is no surprise to me that the judicial branch rules in favor of judicial authority."

Perhaps not, but what they actually ruled against is exclusive Executive power. Of course, I realize you think the Founders intended to exclude the courts from war issues, and in that sense the Court has ruled "in favor of judicial authority" by rejecting the claim that the courts lose all authority in war. And I look forward to seeing your evidence for that proposition.
2.14.2006 6:45pm
KMAJ (mail):
I see cited often, the Necessary and Proper Clause as an unbreechable authorization of legislative power, but according to Madison, in Federalist 44, that is not the case:

If it be asked, what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning? I answer the same as if they should misconstrue or enlarge any other power vested in them, as if the general power had been reduced to particulars, and any one of these were to be violated; the same in short, as if the State Legislatures should violate their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort, a remedy must be obtained from the people, who can by the election of more faithful representatives, annul the acts of the usurpers.


Clearly, they intended for the executive branch, if affected, to have the authority to expound and give effect. If a president deems that a legislative act, as applied to a specific situation, he certainly has a right to expound about its negative effects and reasons for not enforcing it due said negative effects. If the executive branch, which is co-equal with the legislative, thus decides, the legislative branch is not disarmed. It can choose to impeach, it can choose to write new legislation, it can choose to negotiate with the executive branch, it can bring pressure through its control of the pursestrings or it can take its case to the people. There is nothing in the Constitution that binds the executive branch to enforce a law which it believes has a negative effect and is not in the best interests of the people who elected them.

That is the nature of having co-equal branches in a tripartite government. That is the fallacy I find in those championing a weak executive. In this particular case, the executive branch believes FISA has a negative effect. That does put the ball back in the legislative branches court. They certainly could seek to impeach, they also could seek to write or amend a law that is acceptable to the executive, or they could decide to simply scream and object and do nothing. The weak executive proponents seem to argue that the executive should have no right of determination and be totally subservient to the legislative branch, and what they deem is 'necessary and proper' and can effectively tie the executive's hand, without recourse or protest. I believe such an interpretation is a bastardization of the Founders intent and of our Constitution.

If the executive, or the judicial branch, cannot stand up to the legislative branch, then you have destroyed the Constitution and its co-equal tripartite system of government and have become the progenitor of exactly what Madison feared, the legislative branch being the greatest threat to liberty.

I suggest reading the Constitutional Convention on the separation of powers, their concerns about the legislative branch, their thoughts on the executive having revisionary power, of the executive having an absolute negative to ward off the legislative branch, even Madison's and Mason's proposal of cooperation between the executive and judicial.

Mr. Madison--considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the Judiciary departmt. by giving it an additional opportunity of defending itself agst: Legislative encroachments; It would be useful to the Executive, by inspiring additional confidence &firmness in exerting the revisionary power: It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity &technical propriety in the laws, qualities peculiarly necessary; &yet shamefully wanting in our republican Codes. It would moreover be useful to the Community at large as an additional check agst. a pursuit of those unwise &unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged agst. the motion, it must be on the supposition that it tended to give too much strength either to the Executive or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; &suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.

Mr. Mason said he had always been a friend to this provision. It would give a confidence to the Executive, which he would not otherwise have, and without which the Revisionary power would be of little avail.


Obviously, I share Madison's and Mason's concerns.
2.14.2006 6:59pm
Medis:
srg,

I've been thinking a bit about your bombing court hypos, and I think there is a good general lesson to be learned. I suspect that to you, these all seem like the same hypo. And yet to me, I think you are varying the hypo significantly with each iteration.

I think that difference in perception reflects our difference in views on the nature of separated powers. I believe that you fall into what I have described as the "subject matter" camp, and so for you it is sufficient to make the hypo about "bombing". In other words, once the hypo is about "bombing", on your view you already know the answer--the courts are excluded.

In contrast, I fall into what I have called the "kinds" camp. So, for me it is not enough for you to say the hypo involves bombing, because that is merely a subject matter. Rather, I need to know specific details about the "cases" before your hypothetical "bombing courts"--details about what sort of law they are applying, and what sorts of "parties" are before the court, and what sort of determinations the courts are required to make. Only then can I determine what kind of power these bombing courts are exercising.

Anyway, I think this is a good example of a fundamental difference in approach. And hopefully this brief commentary will help you understand what questions I would need you to answer before I could give you my analysis of a "bombing court" hypo.
2.14.2006 7:14pm
William Goodwin (mail):
KMAJ, the executive has a simple remedy in the case of a law it believes to be harmful to the republic: the President can veto the bill. In the case of FISA, the President signed the bill, making it the law of the land. At that point, it became the responsibility of presidents to faithfully execute the law, and if they believed it was a bad idea, to seek its repeal or to seek its overturning in court. Simply breaking a duly-enacted law -- as the President appears to have ordered the NSA to do -- is not, by any measure, something Madison would have approved of.
2.14.2006 7:28pm
Grand CRU (mail):

I don't know anybody who seriously advances the position that Congress could not act pursuant to its commerce authority to do this.



Thomas. Roberts. Scalia. Kennedy. Alito. Look, that's 5.
2.14.2006 8:00pm
Grand CRU (mail):

Simply breaking a duly-enacted law -- as the President appears to have ordered the NSA to do --



As a matter of law, this has to be wrong. Almost all the laws that the Supreme Court invalidates as unconstitutional (exclude the law at issue in Chadha) have been enacted pursuant to the art. 1, sec. 7 procedure. Due enactment is not sufficient for constitutionality; it is merely necessary.
2.14.2006 8:03pm
Noah Klein (mail):
KMAJ,

"If a president deems that a legislative act, as applied to a specific situation, he certainly has a right to expound about its negative effects and reasons for not enforcing it due said negative effects."

This statement is absolutely correct. In fact, it is one of the most correct things I have heard you say (I hope you take that as a compliment.) But you are applying that constitutional provision in an incorrect way. Non-enforcement is different than violation of a law. Let's get out of the realm of government and apply this to a family situation. Now this is not legal, but it is common sense. Let's say you and your wife/husband set up an agreement that you would wash the dishes on one day and she would do it on other. If she requests that you wash the dishes on her day, would you be more justified in not washing the dishes or in smashing them? I think your wife would be more angry if you smash them. Yet you are trying to apply the smashing principle to FISA.

The president does not have to enforce the law, but he can't violate. For example, the president can reccomend that a program or department be shut down. He can impound some money (but can't spend it where he likes) and he give no orders to a department of government and make an executive order stopping all non-independent agencies. Non-enforcement of a postive regulation ("you have to go through this to do this") is failing to do the thing that regulation governs. Non-enforcement of a positive regulation is not doing the action while failing to go through the procedures set out by the regulation (I am sorry if that's confusing, it's like a triple negative, but I can't see how to construct that idea differently). I believe that surveiling possible fifth column elements, especially in this war, is very important, but if the president hated the law so much he can only not do the thing that law regulates. He would be smashing FISA, like the dishes, if he just did it without going to FISC.

The president can object to this law. His objections would go to a neutral third party (not Congress or the President) that would decide the issue. He can't just say well I don't care what the last guy said. Many in Congress and many in the general population are not big fans of the Medicare Prescription Drug plan. Can Congress force Medicare to enforce a new program by passing a resolution (no presidential action) reorganizing the whole plan? Of course not. If Congress still wants a Prescription Drug Plan but it want to organize it differently, it must get the president's cooperation. If Congress hates the plan so much, they can withdraw funding for it. They can't create a law without the president's okay unless they have a supermajority.

These are the checks in the system. FISA can not be changed by the executive's decree just like the Medicare Prescription drug plan cannot be changed by a Congressional resolution. FISA says it's the only way certain people can be surveilled in the U.S. That's it. Period. So if the president wants to do something else, he has to go to Congress. Where's the conflict there?

Noah
2.14.2006 8:10pm
Kovarsky (mail):
Grand CRU,

Thomas. Roberts. Scalia. Kennedy. Alito. Look, that's 5.

I don't get it. Is your point just that those guys are conservative on domestic commerce clause cases?

We're talking about the foreign commerce clause here, and international communications are "foreign commerce" within the meaning of article I section 8, just as interstate communications plainly fall within the meaning of the domestic commerce clause.
2.14.2006 8:18pm
Kovarsky (mail):
As a matter of law, this has to be wrong. Almost all the laws that the Supreme Court invalidates as unconstitutional (exclude the law at issue in Chadha) have been enacted pursuant to the art. 1, sec. 7 procedure. Due enactment is not sufficient for constitutionality; it is merely necessary.

Grand CRU, his point is that hamilton would not have thought the executive could just decide to violate a law. His point had absolutely nothing to do with judicial review.
2.14.2006 8:20pm
Noah Klein (mail):
Grand CRU,

"I don't know anybody who seriously advances the position that Congress could not act pursuant to its commerce authority to do this.




"Thomas. Roberts. Scalia. Kennedy. Alito. Look, that's 5."

I doubt it. Kennedy was the international law man for childhood execution. Do you really think he would say that the foreign commerce clause, which allows Congress to make laws that regulate commerce between countries (international communications, anyone), does not give them power over this. Or would he say that the regulations of the military clause gives Congress? Or would he say it is the Necessary and Proper clause? Or would he say that this power to make FISA relates to all three and thus the power comes from all three enumerations? Either way, there is little doubt what Kennedy will do here.


"Simply breaking a duly-enacted law -- as the President appears to have ordered the NSA to do --

"As a matter of law, this has to be wrong. Almost all the laws that the Supreme Court invalidates as unconstitutional (exclude the law at issue in Chadha) have been enacted pursuant to the art. 1, sec. 7 procedure. Due enactment is not sufficient for constitutionality; it is merely necessary."

Invalidating a law is different than breaking a law. The Judiciary can invalidate the Lopez act, but prior to that they are not allowed to sell guns near schools. There is a difference between the two. The president can veto and not enforce a law, but he can't break it. For example, let's use a negative law. Let's say a marijuana user gets elected president (Extremely unlikely, but whatever). Can that marijuana user declare that possession of marijuana is legal on his say so? No. He does have the authority to not prosecute any of those crimes. It may be stupid, but that's his right. Otherwise, he has to convince the judiciary that the law is unconstitutional or convince the legislature to change the law.

Noah
2.14.2006 8:32pm
JunkYardLawDog (mail):
William Goodwin,

Your post was excellent. As I noted above I have just relied upon the quote provided by Orin, and I haven't read the other footnotes.

I can't respond to your well presented post until I have time to read all the footnotes in question.

It will take me a day to do this. I'll respond then.

Says the "Dog"
2.14.2006 8:48pm
anonymouslawyer (mail):
The "Dog" makes one very persuasive point, which noone has effectively refuted. Footnote 4 in the Truong decision is, in fact, dicta. The very first sentence of the footnote reads: "Since the surveillance was conducted in this case, Congress has enacted the [FISA]." Thus, it matters not whether the Fourth Circuit was explaining why the result would not change under the FISA, as Professor Kerr suggests, because that was not the question squarely presented to the court. As the Foreign Intelligence Surveillance Court of Review explained, "[a]lthough Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. In re Sealed Case, 310 F.3d 717, 742 (2002) (emphasis added).

Which brings me to my point of agreement with the "Dog." If we are engaged in an exercise of competing dicta, I too would place greater reliance on dicta from the court of appeals with specialized jurisdiction to consider legal questions regarding the FISA. It may very well be that the FISA Court of Review's analysis is incorrect as a normative matter, but I've yet to hear a good argument as to why reliance should not be placed on it as a descriptive matter. Marty Lederman has suggested that we should ignore the decision because it was written by Judge Silberman, who testified against the proposed legislation when he was the Deputy Attorney General. The problem with that argument, of course, is that the FISA Court of Review's decision was rendered per curiam by an experienced three-judge panel, and Marty has offered no support for this suggestion other than his idle speculation. Moreover, then-DAG Silberman is now Judge Silberman and, unless there's some doctrine of which I'm unaware, a decision rendered by a panel including Judge Silberman is entitled to the same weight as any other Article III court, regardless of whether he had an opinion about the matter before acceding to the bench.
Professor Kerr has suggested that he doesn't know what to make of the dicta. Fair enough, but that goes to the question whether the court's analysis is normatively correct, not whether it can be relied on as a current statement, right or wrong, of what the law is.

The Article II argument may ultimately prove to be misguided, and several members of this board have made credible arguments as to why that is so. On the other hand, the highest court in the land to have considered the question with specialized jurisdiction in the field has taken it for granted that the President has the inherent authority to conduct warrantless foreign surveillance and. assuming that to be the case, "the FISA could not encroach on the President's constitutional power." 310 F.3d at 742. I think the opponents of the Article II argument have to at least acknowledge the fact that there is, indeed, caselaw that suggests strongly that their position is incorrect.
2.14.2006 10:23pm
KMAJ (mail):
William Goodwin,

First, the executive would have to agree that the law applies. In the NSA case, the DoJ and OLC have said it does not under the current situation. The executive has every right under the Constitution to accept their advice, and act upon it accordingly. By doing so, he sends the ball back to the legislative branches court, which gets us to where we are today. I maintain that Madison, Mason and other founders envisioned the executive branch being able to do this. To believe otherwise is to believe in a dictatorial/superior legislative branch, something the founders feared. In reading the debates of the Constitutional Congress, those supporting a weak executive branch can find very little solace or support.

One thing I have noticed, is no one has ever tried to claim that executive branch authority wasn't weakened post Watergate and Vietnam, nor have they refuted that what is being asserted with the NSA program does not rise to the level of executive branch authority that existed pre-FISA.

So what is the underlying reason why people would be arguing against against the executive branch in this case ? I sense a strong undercurrent of politics that has more to do with who is in the office than a real concern about executive branch authority, with the exception of those who honestly believe in a superior legislative branch, and thus, not a co-equal tripartite system of government.
2.14.2006 11:47pm
Grand CRU (mail):
1. I do not think a law has to go to the judiciary in order for it to be unconstitutional. Unconstitutional laws are not constitutional before they are declared unconstitutional by the Court. They are unconstitutional laws that simply haven't been so declared by the Court yet. The declaration does not change their status, it just confirms it.

2. I know Kennedy is the wobbly one here, but I recall a case involving international law and gun rights, in which Souter, Breyer, Stevens, Ginsburg, and someone other than Kennedy (O'Connor, I think), held for the broad interpretation. In other words, Kennedy sided with Thomas. The domestic/international commerce clause distinction has little merit here, because the question is about the scope of Congressional legislative power, either way, e.g, Congress saying that a crime committed in Japan counts in determining whether you are a felon who can own a gun in the United States. Maybe I have the count wrong, but I don't think Kennedy is clearly on your side. In any event, 5 votes is plausible.
2.14.2006 11:52pm
Kovarsky (mail):
Grand CRU,

I respect most of your arguments, but the issue of whether international communications fall under the foreign commerce clause is a 9-0.
2.15.2006 12:04am
KMAJ (mail):
Let's try to come at this issue from a different angle, a reality based philosophical one. We all like to think that the law is above and separate from politics, but we are fooling ourselves. In reality, there is a confluence where politics and the law meet, and politics has an effect.

The nature of man in conflict is to win, whether it be in sports or debate, to claim superiority. In debate, that nature leads to the formation of camps of competing thought. For this philosophical exercise, lets say there are only two camps. Both camps seek to delegitimize the thoughts and beliefs of the other. If both camps, whether recognized by the other are not, have valid points of view, the superiority will then come down to which camp is in power. Obviously, the camp out of power will complain, but the weight of that political power is undeniable. It is that very weight that led to the shift in judicial philosophy that occurred at the time of the New Deal. It was not any superior position on the law but a superior position in politics that led to the change. I think we are in the middle of an analogous situation here.

People arguing against are people defending the status quo, which represents support for a weak executive branch. Right now, that camp is out of power, and they are fighting tooth and nail to maintain what they had gained while in power. One has to notice the citations are primarily decisions from their time in power, ones that support their interpretation. If the societal shift maintains its rightward course, it is likely the current camp in power will maintain its power, and judicial philosophy, a lagging indicator in a shift, will eventually catch up to the direction of the society it represents. The longer a camp remains in power the greater the influence on the law and its interpretation. It has always been this way throughout history, it is the society that shapes the law.

There you have it, my philosophical treatise on Society, Politics and the Law.
2.15.2006 12:26am
srp (mail):
Medis: Actually, I agree with your analysis of the separation of powers, i.e. "we go to war with all three branches." I do think, however, that the subject matter of war changes the constitutional balance among the branches because of the explicit Commander-in-Chief provision and the uniquely critical nature of command integrity in military operations.

I have been at pains to say that Congress can constitutionally do all sorts of things, many of them manifestly unwise, to regulate the armed forces of the United States. The question then becomes, what limits can be placed on these regulations in recognition of the executive branch's unique role in warfare? The courts, similarly, may have some role to adjudicate cases about these regulations that come up after military operations are completed.

I fail to see why you are so confused about the bombing court. I have never changed its parameters at all. It's just like the FISC. No one with standing is going to the FISC and saying "please don't surveil me." The court is (or would be if the Adminstration brought it in) looking at surveillance plans aimed at foreign hostiles and deciding on its own hook that individual citizens' rights might be infringed. Just like the bombing court would look at a proposed mission against a foreign hostile target and decide on its own hook that individual citizens' rights might be infringed by the bombing. I don't see what distinction you have in mind. It is you who are relying on the subject matter of bombing to assume that there is no individual claim in play, not me.

My point is that the court's jurisdiction is equally improper in either case, even though one might make a policy argument for it (although one that does not come close to convincing me). I tried to explain in my earlier post exactly what is special about combat operations, but apparently my argument failed to make an impression.
2.15.2006 12:27am
srp (mail):
Medis: This is broadening out to the point that it borders on thread-jacking, but I must disagree with you about the role of the executive and judicial branches as agents of the Congress. A law is a command, full stop. When the Congress says I have to pay a certain percentage of my income, defined in a certain way, into the Treasury, that is a command. When the President, through his subordinates in the IRS and possibly the police, seizes my assets or arrests me for not paying, he is effecting that command. When a judge rules that I am or am not liable for the taxes the IRS asks for, he is making sure that the Congress's command is followed faithfully. On just whose behalf are these people acting if not the Congress's?

Laws are commands. Court orders are commands. Presidential orders are commands. When a court says that the President can't listen in to foreign target Pierre's radio emissions because it looks like he might be talking to Joe Citizen, who has a right to privacy or some such, it is countermanding the President's order. The distinctions you are trying to make between countermands, warrant refusals, saying "no", and any other thwarting of the President's (delegated) order are operationally irrelevant. and spurious.

In terms of principal-agent relationships, in economics the defintion is perhaps different from what it is in law. Anytime I delegate a task to another party on my behalf, he acts as my agent. Hence politicians in a democracy are supposed to be agents of the people, agencies are modeled as agents of Congress, etc. This is all standard stuff in political science and economics.

Even using your two-part test, I fail to see how the President is not the agent of Congress in enforcing the law. " (1) the agent must be bound to act on behalf of the principal;" is already addressed above. That's what enforcing a law is, acting on behalf of (carrying out the will of) the promulgator of the law (which in this case is supposedly acting on behalf of the people). "(2) the agent must be bound to follow direct instructions from the principal," is covered by the nature of law as instructions.

Is it direct? Now we're getting into Hayekian "law" vs. "legislation" stuff, which no one has resolved, to my knowledge, but it sure seems direct when you're on the business end of it. The legislative process in Article I does not remove the commanding nature of Congress; it merely sets up a procedure so we can know what those commands are, namely, the ones passed into law and either signed by the President or passed over his veto.

The parliamentary systems are different from ours not because our executive is not an agent of the legislature (after all, he swears to see that the laws are faithfully executed), but for a host of structural reasons (e.g. in parliamentary systems the executive isn't elected separately).

Finally,my evidence for the Founders not wanting Congressional meddling in military operations comes from general knowledge about the Articles of Confederation and their defects, Hamilton's experience in the Revolutionary War, etc. If I am misremembering the arguments at the Convention and in the Federalist Papers, I apologize, but there had to be some reason for their breaking out the role of Commander-in-Chief separately.
2.15.2006 1:02am
JunkYardLawDog (mail):
Kovarsky,

If Osama is calling someone in the USA in the exercise of his command and control of enemy forces, this is not a commercial transaction. Yes I know its a commercial transaction or a matter of international commerce for the carrier of the phone conversation, but the particpants are engaged in war against the USA. I know the subject matter of the conversation doesn't usually make any difference for determinations of whether something is in or not in international or interstate commerce, but couldn't there reasonably be a distinction here for national security purposes, etc.?

Says the "Dog"
2.15.2006 1:02am
Medis:
KMAJ,

Just for your information, what you described are some of the central tenets of "critical legal studies".

srp,

First, an aside on the bombing court and the FISC:

I do think the parameters are changing in your hypos, and for the reasons I suggested above. But anyway, you say about the FISC: "The court is (or would be if the Adminstration brought it in) looking at surveillance plans aimed at foreign hostiles and deciding on its own hook that individual citizens' rights might be infringed. Just like the bombing court would look at a proposed mission against a foreign hostile target and decide on its own hook that individual citizens' rights might be infringed by the bombing. I don't see what distinction you have in mind."

That is an inaccurate description of FISA, and again it is important to understand why. With one technical exception that the commentator Bruce has pointed out (and which I agree is a valid concern), FISA has no application to electronic surveillance which targets non-U.S. persons, even if a U.S. person then happens to be a party to the communication. Rather, FISA (mostly) applies when U.S. persons actually become the target of the surveillance.

This is one part of why I think you need to clarify your bombing hypo. If, for example, you are talking about carpet bombing a terrorist camp in Afghanistan, and the suggestion is that some U.S. citizen might happen to be there, then I think this would not be analogous to anything covered by FISA. In contrast, if you were talking about launching a cruise missile at the home of John Q. Smith, 101 Main Street, Smallville, USA, then you might be talking about something analogous to the electronic surveillance covered by FISA.

So, I think you need to clarify which of these scenarios you have in mind (or any alternative, third scenario).

On the general points:

You say: "I must disagree with you about the role of the executive and judicial branches as agents of the Congress. A law is a command, full stop."

I very much disagree. I think you are focusing on the fact that like commands, laws are binding. So that is indeed a point of commonality. But I think one important difference is that laws take the form of general rules, whereas commands are specific instructions. To be sure, this is not always a neat distinction, but it is the foundational distinction that explains the institutional design in our Constitution. In short, when making laws--establishing general rules that will apply to many situations over time--it makes sense to delegate that task to a deliberative body with broad representation: a parliamentary legislature. In contrast, when issuing specific instructions to deal with a particular situation, for the reasons you suggest it does make sense to have "unity of command"--which is why we delegate that role to the hierarchically-structured executive branch.

In short, the legislature makes general policy decisions, and embodies those decisions in general rules--laws. In contrast, the executive deals with particular situations, and issues specific instructions--commands.

So what about the courts? There is a third sort of role, what I might call "dispute resolution." This is when parties have legal rights or interests that have come into conflict, and they need a neutral third party to resolve their dispute and end the conflict. Those decisions--I might suggest calling them "judgments"--are specific like commands. But they are also far more limited in certain ways: namely, the field of permissible considerations are limited by substantive law, and the ability to issue judgments is limited by jurisdiction.

And again, I think it is important to note that commands, laws, and judgments are different in these ways. You are right, of course, that all three kinds of power--commands, laws, and judgments--may apply in a given situation. But I think you are wrong to say that because they may all have some effect, that means they are all the same sort of thing.

That said, I don't want to get bogged down in semantics. But if you insist on calling all of these things "commands", then we still need terms to distinguish what I have described as "specific instructions" from "general rules", and both of those from "decisions resolving particular disputes". So if you don't like my terms (commands, laws, and judgments respectively), then feel free to suggest your own and we can move forward with the discussion.

On the agency issue:

You ask: "On just whose behalf are these people acting if not the Congress's?"

It may be useful to take a look at the oaths sworn by all the branches. They all end up swearing an oath to protect or support the Constitution of the United States. So, that is basically your answer: they are all acting on behalf of the Constitution.

Of course, that is sort of an odd thing to say (that they are serving a document). On the other hand, I think the Framers were making a simple point: they wanted to emphasize that the United States was going to be organized under the Rule of Law. And so the idea behind these oaths is simple, perhaps even elegant--by making every officer of the United States an "agent" of the Constitution, they emphasized that it was Law, and not some particular group of men, that our government was bound to obey.

And I really do think it is a mistake to see Congress as somehow the principal, to which the other branches serve as agents. Rather, I think the right description is that all three branches are serving as agents to the Constitution, but there is a division of labor between these agents. Imagine, if you will, three people working in an office, each with a different role to play in performing a certain task on behalf of their employer. The employer may have bound each employee to accept that each of the other two employees has the final say in performing their respective parts of the task.

But that doesn't make any of the employees an agent of the others. Rather, they are all common agents of the employer, and it is the authority of the employer that limits their ability to interfere with the other two employees as they perform their parts of the task. And that is quite explicitly how our Constitution structures our goverment.

Finally, on the historical point:

I agree that the Founders wanted to change the role that the Continental Congress had played in the Revolutionary War. That was indeed an incredibly active and specific role, and one which we would not recognize today (eg, a couple of committees of the Continental Congress had literally run spy operations, basically performing the tasks of our CIA). But I think we have agreed on that issue--our Congress can make military laws (general rules), but no longer can issue military commands (specific instructions).

But our disagreement is about the courts. Unless I have mistaken you, you have asserted that the Founders had a specific concern about courts being involved in military matters, and wanted to make sure to exclude the courts from such involvement. So, I was interested to see if you have any specific documents or practices in mind.

And I should note that I am somewhat skeptical about that claim, given my knowledge of the contemporaneous Articles of War (by which I mean the Articles that were reratified by the First Congress). One prominent feature of those Articles was their definition and use of courts-martial. A second prominent feature was that they explicitly subjected the armed forces to the "law of the land", and required the armed forces to transfer its members to the control of civilan authorities when they were accused of violating civilian law. Both of these features suggest to me there was no general hostility to courts being involved in military matters.

To be sure, these are not "warrant" situations, in which courts may be involved prior to action. But before I assume the Founders intended to eliminate this very traditional use of judicial power, I'd like to see some sort of supporting evidence to that effect.

So, I was curious if you did indeed have anything on either that general issue--that the Founders wanted to limit the role of courts in military matters--or that specific issue--that the Founders were particularly concerned about something like warrants during war.
2.15.2006 8:39am
Bart (mail):

Kovarsky said:

I agree with William, we are way off topic. But again, Congress does not derive the authority to pass FISA exclusively from the N&P clause. It derives it from the article 1, section 8 grant of authority to regulate foreign commerce. "international communications" are foreign commerce. that is not a debatable point.



I agree that international communications are foreign commerce. However, we are not debating about whether Congress has the power to regulate al Qaeda telephone calls in and out of the United States. They do.

However, the President's exercise of his foreign intelligence gathering powers has nothing at all to do with commerce.

In a nutshell, the telephone call is the commerce. The surveillance of that telephone call, which has no effect on the telephone call itself, can hardly be considered to be "commerce."
2.15.2006 9:01am
srg (mail):
Medis,
You wrote:

"With one technical exception that the commentator Bruce has pointed out (and which I agree is a valid concern), FISA has no application to electronic surveillance which targets non-U.S. persons, even if a U.S. person then happens to be a party to the communication. Rather, FISA (mostly) applies when U.S. persons actually become the target of the surveillance."

One of the problems I have with this whole conversation is that I am not aware that anyone has clearly defined what "targets" means. Could the government argue that it is the Al Qaeda member abroad who is always the target, so that everything the government is doing with regard to U.S. persons (horrible phrase) is not targeting? (By the way, srg and srp are two different people.)

Anonymous Lawyer:

I'm surprised that no one has yet tried to counter your important point about the dicta in the FISA court decision. At the very least, the Bush administration could claim that this ruling gives them sufficient reason to believe that they have the constitutional right to do what they are doing until a later court informs them otherwise.
2.15.2006 9:20am
Bart (mail):

colts observed:

I'm truly at a loss in regard to your response that you don't/can't see where the N&P clause expressly empowers Congress to pass laws that regulate the president's executiion of his enumerated Art II powers.



Actually, I argued that the N&P clause does not give Congress the power to limit or eliminate the President's Article II powers, to wit the power to conduct warrantless foreign surveillance. There is a fundamental distinction between "regulation," which is a weasel word, and limit or eliminate.

For the sake of this argument, I am assuming that we agree that the alleged FISA requirement that the President procure a warrant for this NSA program is a limit or elimination of his or her Article II powers to conduct warrantless foreign surveillance.


The N&P clause says that Congress shall have the power:

To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

I read the phrase "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" to expressly permit Congress to pass laws that regulate the manner in which "any Department" and "any Officer" of the U.S. Government execute of "all other powers vested by this Constitution in . . . [such] department or officer."

Please, tell me what I -- and the 14 co-authors of the letter discussed by M. Lederman -- are missing about the N&P clause.


I enjoyed your letters. They represented the best arguments I have read to date in opposition to the program. However, I respectfully disagree with your central premise...

The N&P clause is merely an enabling provision which allows Congress to pass "laws which shall be necessary and proper for carrying into Execution . . . all other Powers..." For example, while the President may have the Article II power to conduct warrantless foreign intelligence gathering, Congress needs to pass legislation creating and then funding the NSA to allow the President to "carry into execution" this Article II power.

The N&P clause nowhere gives Congress the affirmative power to affirmatively enact legislation which limits or eliminates the President's Article II powers. The phrase "carrying into Execution" is not a limiting phrase. Additionally, the fact that the Constitution expressly provides for the amendment process to change the document argues against an interpretation of the N&P clause which allows Congress to amend the President's constitutional powers by merely enacting legislation.

At most, this provision allows Congress to exert negative power over the President's power to gather foreign intelligence by declining to pass legislation creating or funding the department necessary to carry out that power.

Conversely, you and your colleagues are arguing that the N&P clause itself is an affirmative grant of power to Congress to essentially pass any legislation it feels is "necessary and proper," including legislation which limits or eliminates the Article II powers of the President (and presumably also the Article III powers of the Courts).

This interpretation does not comport with the plain language of the provision for the reasons I gave above.

Nor does this interpretation comport with the original intent of the provision. As discussed in earlier posts, Story's commentaries rejected the interpretation of the N&P clause as an independent grant of power to Congress and the drafters of the Constitution had to reassure the People in the Federalist Papers that the Constitution was not creating the all powerful Congress which you propose.

Finally, this interpretation destroys the entire concept of separation of powers, which is a cornerstone of the Constitution. Your interpretation means that Congress can reduce the other two branches to nullities merely by enacting legislation which strips away their Article II and III powers. I doubt any Court would agree with such an interpretation.
2.15.2006 9:50am
Medis:
srg,

Just to get the text of the law on the table, the key phrases in FISA are things like "if the contents are acquired by intentionally targeting that United States person" and "the target of the electronic surveillance is a foreign power or an agent of a foreign power."

Anyway, I agree that FISA itself does not do much to define what the verb "to target" means in these contexts. I would guess, however, that the FISC has some precedents which help define these phrases. However, since these are classified, we don't have access to them.

Bart,

I'm intrigued by your discussion of "regulate", "limit", and "eliminate".

It seems obvious to me that any "regulation" will include some limits. In other words, the very idea behind regulation is to provide rules for doing certain things in certain ways, and therefore insofar as someone might want to do those certain things in some other way, the regulation "limits" their ability to do so.

So, would you agree that your claim that "The N&P clause nowhere gives Congress the affirmative power to affirmatively enact legislation which limits or eliminates the President's Article II powers" does in fact imply that Congress cannot "regulate" in any way the President's use of his "Article II powers"?

For example, what would you feel about a statute that said the President had to deliver his disapproval of a bill to both Houses of Congress in writing. Is this an unconstitutional limitation, or a law carrying the veto power into execution?

Or, what do you feel about something like a statute that as applied would prohibit the President from using his pardon or veto powers in exchange for cash deposits in his personal accounts? What if someone argued that ultimately such a statute actually increases the President's veto and pardon power by protecting public confidence in his exercise of those powers?

Is that an unconstitutional limit on the pardon and veto powers, or is that a "necessary and proper" law which is "carrying those powers into execution"?
2.15.2006 11:25am
Medis:
srg,

Incidentally, we have discussed the dicta in In re Sealed Case many times here, so that may explain why people are not leaping to discuss that issue again. In a nutshell, many have noted a couple salient things about that dicta:

(1) It is a non sequitur in the opinion, meaning it appears to be unsupported by any particular reasoning, and no particular or even hypothetical application of that dicta is discussed;

(2) The dicta does not define the key verb, "to encroach". This is particularly problematic in light of point (1), because we have no context which might help define that term.

Indeed, in line with what I was suggesting to Bart, if "to encroach" meant putting in place any sort of limit, that would seem to rule out any sort of regulation at all. If that was true, then ALL of FISA would be unconstitutional on its face. And yet it would be darn odd for the FISCR to mention offhand that all of FISA is unconstitutional, but then go ahead and apply FISA to the case anyway.

So, in my view we don't really know what this dicta means. And of course many others have pointed out that without any sort of supportive reasoning, it is also a bit hard to assess whether we should find this dicta persuasive.
2.15.2006 11:36am
Bart (mail):
Medis:

Bart,

I'm intrigued by your discussion of "regulate", "limit", and "eliminate".

It seems obvious to me that any "regulation" will include some limits. In other words, the very idea behind regulation is to provide rules for doing certain things in certain ways, and therefore insofar as someone might want to do those certain things in some other way, the regulation "limits" their ability to do so.



We are speaking in hypotheticals here because the N&P clause doesn't use the term "regulate." I just wanted to clarify my own position by rejecting the term "regulate" because it has multiple historical and legal meanings.

Today, regulate usually means to limit the regulated party's freedom of action in some way.

However, back in the 18th century when the Constitution was drafted, the term also had other meanings. For example, the Second Amendment on which I have written speaks of a "well regulated militia." Proponents of fire arm limits or abolition often point to this term as support for their position. Actually, a well regulated militia in the context of 18th century military units simply meant a "disciplined" militia.

As I said, regulate is a weasel word and I wanted to be clear.

So, would you agree that your claim that "The N&P clause nowhere gives Congress the affirmative power to affirmatively enact legislation which limits or eliminates the President's Article II powers" does in fact imply that Congress cannot "regulate" in any way the President's use of his "Article II powers"?

No. Congress may use the N&P clause to enact statutes to exercise its own enumerated Article I powers.

One of those powers is "To make Rules for the Government and Regulation of the land and naval forces." Art. I, Sec. 8(14). This is the basis for Congress enacting the Uniform Code of Military Justice to regulate the application of criminal and non-criminal discipline on the service members. While the President as CiC can and did establish rules for discipline before the UCMJ out of necessity, the Constitution provided that this was actually one of Congress' enumerated powers. Congress could therefore exercise this express enumerated power to limit or eliminate the President's implied CiC power to discipline the armed forces.

For example, what would you feel about a statute that said the President had to deliver his disapproval of a bill to both Houses of Congress in writing. Is this an unconstitutional limitation, or a law carrying the veto power into execution?


Good grief, this is like Con Law all over again! ;^)

I would need to do some research, but Congress appears to be imposing a procedural requirement to provide notice to Congress of a veto so that Congress may timely act to override that veto if it so desires.

Given that this provision is not substantively limiting in any way the President's Article II power of the veto, I don't see how this conflicts with my reading of the N&P clause.

Or, what do you feel about something like a statute that as applied would prohibit the President from using his pardon or veto powers in exchange for cash deposits in his personal accounts? What if someone argued that ultimately such a statute actually increases the President's veto and pardon power by protecting public confidence in his exercise of those powers? Is that an unconstitutional limit on the pardon and veto powers, or is that a "necessary and proper" law which is "carrying those powers into execution"?


Sheesh!

This pretty well falls under Congress's power to pass federal criminal statutes such as those against Bribery. Given that I am a textualist in the Scalia mold, I don't see how the salutary benefit of bribery statutes in maintaining public confidence in the government should have any bearing over whether Congress has the constitutional authority to enact the statute.
2.15.2006 12:03pm
Medis:
Bart,

As an aside, I think these hypotheticals are useful precisely because I think there is a potentially significant and relevant distinction between "limit" and "eliminate". And if the rule was no limits, of any kind, whatsoever, then I think there may indeed be a problem with your interpretation of the NPC.

Anyway, on specific issues:

I think you are right that a difference between "procedural" and "substantive" limits may be relevant to many determinations. Nonetheless, procedural limits are indeed limits insofar as someone might want to stop following those procedures.

As for "Congress's power to pass federal criminal statutes such as those against Bribery" ... actually, that general power is not enumerated anywhere in the Constitution. Of course, certain specific crimes are discussed in Article I, but the authorization behind many (perhaps most) federal criminal statutes actually requires an application of the NPC.

But in any event, my point was more this: the rationale for certain criminal statutes is that they actually further legitimate uses of government power by prohibiting illegitimate uses of government power. And so even substantive limits on certain uses of a power can be seen as effecting a net increase in the holder's power.

A common analogy is counterfeiting: prohibiting the counterfeiting of money increases the value of the power of the Mint. Certain substantive limits on the use of official power, like bribery statutes, arguably also increase the overall value of the power of that office.

Anyway, I raise all this to suggest that the relationship between "limits" and "power" is not simple. Not all limits seek to eliminate power. Some limits are more procedural than substantive. And even some substantive limits arguably increase the overall value of the power which is being limited.

And personally, I'm not sure the NPC takes a firm stand on these issues.
2.15.2006 12:51pm
DRS:
Prof. Kerr:

So here is my question for believers in the strong Article II argument: If Congress has no legitimate role in regulating foreign intelligence monitoring, why is the United States Court of Appeals for the Fourth Circuit stepping aside so that "the political branches" (plural) can "reach the compromises" as part of "the legislative process"? Doesn't this necessarily mean that the Fourth Circuit thought "the compromises" of FISA were binding on the Executive Branch?

RIPENESS:
The Truong footnote 4 should NOT be construed to imply any more than a statement by the Court that it would have applied the "avoidance doctrine" based on ripeness were this issue to have come before the Court requring review of Executive branch action in light of FISA, all other facts and circumstances constant. Because the legislators have other means through which Congress can (attempt to) restrain the President, the Truong case would not be "ripe" for judicial review under FISA. [Campbell v. Clinton, Dellums v. Bush, Baker v. Carr , among others.]The same rule applies to NSA issue: Congress has further actions it can take to (attempt to) assert a (claimed)Constitutional role.
ONGOING RELATIONS:
The footnote is a recognition of "ongoing relations" of the parties. To "solve" the dispute, the Court is relying on the fact that both breaches of necessity have unavoidable fundamentally intertwined "ongoing relations." This should not be construed to conclusively imply the Court believed Congress has or lacks (limited/unlimited) Constitutional authority to regulate executive branch foreign intell gathering any more than we can conclude a judge has made any conclusive findings when he or she orders two parties "back outside" to negotiate. In both instances, we can conclude with a reasonable certainty that the Court has found and recognizes ongoing interrelationships between the Congress and the President, or the business//parental entities.
Yes, the Truong Court leaves room for Legislative branch to pass another law, or even to cut off funding. The Truong footnote does NOT indicate the Court found or is leaning toward finding the President MUST abide by the new law, or cannot use reprogram other funds available executive branch to support the activity. Similarly, the President may abide by the new law or cutoff of funds even though he did not have to. The Truong Court properly avoids the issue, hoping instead the parties, in view of their numerous inherent ongoing inter-relationships, will work it out irrespective of their legal/contractual position.
2.15.2006 2:21pm
Medis:
DRS,

This is a minor point, but while I agree that the courts would probably not entertain a suit by a member of Congress seeking a declaration on the legality of the program, I don't see why a case involving a party with an actual interest could not satisfy a ripeness inquiry.
2.15.2006 2:45pm
KMAJ (mail):
Medis,

While my mini-treatise does reflect certain aspects of 'critical legal theory', a subject of which I had no prior knowledge when I wrote it, my premise diverges from that construct. CLT predisposes itself to an end game or result, my premise is solely that law is not a rigid monolith, immune to the influence of politics and shifts in societal attitudes, but that it is in a state of slow flux subject to motion like a pendulum, due to the real and natural effects of the human paradigm, political and societal. That is why I cited the radical shift in judicial philosophy and thought created by the New Deal era as foundational evidence of my premise.

While CLT is justly criticized as a means to oppression, the same can be said of a view that follows the theory of law shaping society instead of society shaping law. Such a theory knocks on the door of tyranny because it imposes the view of a few or elite on the rest of society 'for their own good'.

Freedom, both individually and for the rule of law, must allow for some negative consequences or mistakes. When law enters the realm of pre-emptively trying to prevent the negative, it is assuming unto itself a crystal ball of the future and the common good. FISA is such a law, that did not restrict itself to the domestic abuses of Kennedy, LBJ and Nixon, but expanded the arena to be influenced.

Unlike war, where immediacy and tactical projections of future actions is critical to the outcome, the law does not lend itself to such ministrations, but is structured to deal with negative results in a post action manner. Should egregious abuses occur, the law has all the tools necessary to correct and punish. Preemption is an area that, while justifiable under defense, security and military tactics, is poorly reconciled with freedom, legal principles and law.
2.15.2006 3:00pm
Some Guy:
Medis--sure, but I think the point that Prof. Kerr was originally making was, footnote 4 suggests that those who use Truong to argue that the administration is right, case closed, are overapplying Truong. He wasn't suggesting that footnote 4 is a positive statement of anything. Rather, it's a negative statement about the scope of Truong. Truong might suggest the administration is correct, but the footnote suggests that application is at least partly in the eye of the beholder.
2.15.2006 3:45pm
Medis:
KMAJ,

Structurally, I don't see the difference between your approach and the critical legal studies approach. Of course, usually their desired end result is something like "social justice." Your desired end result is something like "national security." But your basic approach to the law is pretty much the same.
2.15.2006 5:19pm
srp (mail):
Medis: This is srP again. Amazingly, I had to sleep and work but you, my friend, are an ironman.

Now I see why the bombing court perplexes you. You say, "That is an inaccurate description of FISA, and again it is important to understand why. With one technical exception that the commentator Bruce has pointed out (and which I agree is a valid concern), FISA has no application to electronic surveillance which targets non-U.S. persons, even if a U.S. person then happens to be a party to the communication. Rather, FISA (mostly) applies when U.S. persons actually become the target of the surveillance."

Your understanding of the dispute over FISA and the Hayden/Bush surveillance is at variance with every other discussion I've seen. To recapitulate, everyone agrees that before FISA, the President had an undisputed right to conduct warrantless surveillance of foreign targets, here or abroad, no matter who they were communicating with and no matter who initiated the communication (a domestic or foreign person). It was alleged that Presidents abused this authority. Congress passed FISA, and everyone agrees that the executive needs warrants to target domestic people.

That's why the Administration has applied for, and received, hundreds of such warrants. The only dispute is about whether they also need warrants when domestic persons communicate with foreign targets. (I tend to agree with posters on an earlier thread who argued that what the Administration is doing probably doesn't even violate FISA for technical reasons, but the executive can't explain those reasons without blowing the usefulness of the program sky-high. So I will go by the public claims of the Administration.)

The examples given by the Administration have to do with issues such as grabbing a bad guy's cellphone and seeing who he calls, then looking at those people and finding out who they called. This is a basic problem of intercepting relayed communications in hot pursuit of an elusive enemy. Or intercepting incoming calls TO a foreign target, even when they come from a US person or a US cellphone number. I have heard nothing from anyone in this dispute that suggests domestic US persons are being targeted by the disputed NSA program.

You say, "This is one part of why I think you need to clarify your bombing hypo. If, for example, you are talking about carpet bombing a terrorist camp in Afghanistan, and the suggestion is that some U.S. citizen might happen to be there, then I think this would not be analogous to anything covered by FISA. In contrast, if you were talking about launching a cruise missile at the home of John Q. Smith, 101 Main Street, Smallville, USA, then you might be talking about something analogous to the electronic surveillance covered by FISA." Wrong. The Afghan target is exactly like what FISA is purporting to do here. As described above, the Administration has already applied for and received large numbers of FISC warrants when dealing with John Q. Smith on Main Street as a target. That is clearly not the issue.

So perhaps we have no constitutional disagreement at all--maybe this is just a disagreement about the facts of the NSA program and how it interacts with FISA. On the other hand, given your view that "subject matter" isn't the boundary of separation of powers, why do you think putting a cruise missile into Kandahar isn't subject to review for hurting US persons but putting one into Smallville is? (ignoring the Kryptonian issue for now).
2.15.2006 5:25pm
KMAJ (mail):
Medis,

You make a wrong conclusion, I did not proscribe or advocate an outcome in my mini-treatise. In fact, I left the outcome ambiguous, depending on shifting societal attitudes. If society in flux is moving left or right, judicial rulings will reflect that shift. It is basically a pendulum theory where the outcome is not based on my personal opinions or agenda driven ideologies. The only way a monolithic rule of law can be imposed on the people, without regard for the individual, would be assigning inflexible 'universal truth' status, and that is a recipe for tyranny and a Big Brother New World Order. It is the pendulum effect that prevents the law from moving to far in either direction, it is a self-correcting theory of society, politics and law, as the pendulum will always swing back the other direction at some point in time. It is only when governments and the law become too controlling of society, that the pendulum effect can be disturbed and a free society ceases to exist.
2.15.2006 5:47pm
srp (mail):
Medis: On the issue of legislation vs. commands: I very much wish there were a legally and politically useful metric for determining the specificity of an instruction from one party to another. Hayek tried to do this, because he was pretty much obsessed with this distinction (he felt that most of the "laws" Congress passes are really specifc commands rather than general neutral principles), but he never succeeded. As an intellectual project, this is pretty much a failure.

Many laws that Congress passes are incredibly specific and nitpicky: the tax code, earmarked spending, grants of citizenship to particular persons, etc. Many actions that Presidents take are quite general--Clinton's orders to declassify documents, say, or a general order for the armed forces to engage with and destroy some other military. Judges have issued commands to schools to build swimming pools, pay teachers certain salaries, etc. and they have also promulgated sweeping and novel doctrines such as "one man one vote." The distinction is spurious--everybody is as general and specific as they need to be to exercise the decision rights they have been allocated under the Constitution.

In practical terms, it all comes down to effects--who has the effective decision rights and responsibility over a particular situation, and what steps must they go through in order to get their way (if that is possible). The distinctions you make among laws, commands, and judgments do not map (as the examples above show) to the distinctions of the legislature, executive, and judiciary. Nor are these distinctions, as you have rightly pointed out, solely based on subject matter (although that does play some role in the text of the Constitution). Rather, the branches' roles are distinguished by who is an agent of whom under which circumstances, and by how their decisions take legal effect. (There are correlative structural distinctions in how branch personnel are selected, etc.)

Courts are agents of the Congress, which sets their jurisdictions and tells them what it wants them to do by passing laws. The Article I legislative process makes it possible to say with some degree of definiteness what is the will of the Congress. (I am ignoring the role of judicial interpretation of the Constitution, as well as common law.) As you say, Courts are jurisdictionally limited to dealing with disputes between parties with standing, and to issuing warrants even when there is only one party before them. The Constitution limits how the Congress can deploy its judicial agents in a number of different ways; for the purposes of this thread, it does so by positing the President as Commander-in-Chief.

On the oaths of office: Of course, everyone swears an oath to defend the Constitution. That is the overarching social agreement that lays out the agency arrangements everyone is supposed to abide by. (That is not the only thing they swear to, by the way.)

Acting as an agent of the Congress IS defending the Constitution when the Congress acts in the approved manner on an approved subject and does not endanger the republic. (It gets a little tricky if the Congress votes to surrender to an enemy, or some such, but there's not much of an issue 99.99% of the time.) The rule of law (at the national level) is an agreement to a) abide by the command of the people to follow the Constitution, b) abide by the commands of the Congress expressed through properly passed laws, and c) defer to the agents (executive and judicial) of the Congress as they see that the Constitution and the laws are followed and applied properly.

Your analogy to a business with separate departments is quite useful.So long as all the departments agree on what is to be done, then the question of who has decision rights is pretty much irrelevant (and observationally equivalent). When there is a dispute over what should be done (e.g. is this design from the product developers too hard for the manufacturing department to make?) then we have three practical choices: A decides, B decides, or A and B must haggle until agreement. Each is like a constitutional regime established by the boss (who is like the people here).

Each setup has its advantages and disadvantages. Firms where manufacturing departments have lots of veto power over designs will tend to show engineering conservatism and have quicker ramp-up and lower costs; those where the designers hold sway will take more engineering risks in pursuit of customer value, but will incur higher costs on average. Hagglers may be better at coming up with compromises, or they may dither too long and miss product launch opportunities.

On the Founders and the military role of the courts: I'm out of ammo here. I don't know of any specific discussions of this subject, and I think none of the Founders would ever have imagined that such things as FISA would even be considered. I do think that the old boys would have been astounded at the idea that a court could have forced George Washington to get a warrant before opening somebody's mail, but that's just on the general principle that Madison, et al were fixated on improving executive power when they pushed the Constitution. So I'm afraid I can't shed any light on the historical record.
2.15.2006 6:04pm
anonymouslawyer (mail):
Medis, I think you may have missed my point, which is perhaps my own fault for not making myself more clear. You are correct that many have criticized the In re Sealed Case dicta, and that what some find to be its rather elliptical analysis makes it unworthy of reliance. As I indicated, in a normative discussion of whether the Article II argument is correct, that is a perfectly reasonable position to take. However, if this issue ever reaches the courts, it will not be enough to simply state that "we don't know what this dicta means." Given that lower courts are obligated to give great weight even to the dicta of superior courts, the In re Sealed Case dicta will necessarily play a prominent role in the parties' briefs and arguments. My criticism, thus, is of those who do not at least acknowledge that this dicta, whether right or wrong as a normative matter, gives some support to the inherent authority argument.
2.15.2006 9:13pm
Just an Observer:
anonymouslawyer,

While you consider the non-normative weight of the dicta in Sealed Case, you might remember that the current and former chief judges of the court lower -- really the only court obliged to accord it much more weight than the tooth fairy -- reportedly had little confidence that the court would find the NSA program to be lawful. From the Washington Post 2/9/06:


The two judges' discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence. The new accounts also show the degree to which [James A.] Baker, a top intelligence expert at Justice, shared their reservations and aided the judges.

Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. ...


And of course another non-normative indicator is fact that the DOJ lawyers who practice before the FISA courts have declined to submit a test case for review. The hiding from judicial scrutiny continues to this day.

As Hugh Hewitt -- no antagonist of Bush -- blogged last week:


While DOJ may have rightly feared angering the Chief Judge, the Department's acquiesence undermines its arguments concerning the NSA program that the president has the authority to conduct the program by hinting at a reluctance to test that authority via an appeal of a denied FISA application that rested on intelligence obtained by warrantless surveillance.
2.15.2006 11:45pm
Grand CRU (mail):
I respect most of your arguments, but the issue of whether international communications fall under the foreign commerce clause is a 9-0.

I'm not sure what that has to do with Congress creating an extra-constitutional statutory warrant scheme that impedes the Executive branch, given that the Fourth Amendment is a check on Congressional power, not a grant of legislative power. If your argument is that Congress can require the Executive to get warrants because the foreign commerce clause is in the Constitution, then I'd like you to explain to Roberts, Alito, Thomas, Kennedy, and Scalia how a "warrant" = "commerce". If you cannot do so satisfactorily, then you concede my point.
2.16.2006 12:59am
DRS:
Medis,

"...while I agree that the courts would probably not entertain a suit by a member of Congress seeking a declaration on the legality of the program, I don't see why a case involving a party with an actual interest could not satisfy a ripeness inquiry."

Point taken.... subsumed in my comment are conflated issues regarding justiciability. However, analysis &outcome most likely remains the same, for the same fundamental reasons.

Whether considering the plaintiffs you referrence asserting First &Fourth claims (by my last read) or Congressional plaintiffs under other and/or related claims, Justices will most likely apply different components of justiciability test to support application of avoidance doctrine.

For example in Goldwater v Carter, Justices had differing reasons for findning lack of justiciability, ultimately supporting application of avoidance doctrine:


Justice Rehnquist, writing for himself and three others, dismissed the matter because it involved political rather than legal considerations (Goldwater, 444 U.S. 996 at 996). Justice Powell, however, disagreed with this position and argued vehemently that his main concern was with the issues of standing and ripeness and not with the political question doctrine (Sabis 2003, 243). Meanwhile, Justice Brennan argued that neither standing nor the political question doctrine should prohibit the Court from reaching the merits. Despite these divergent opinions, the Court essentially agreed that the judicial branch should not decide cases that involve the separation of powers between Congress and the executive unless there is a real constitutional impasse. In other words, unless the two branches have exhausted all other political remedies and a genuine constitutional bottleneck continues to exist, the courts may not resolve the issue. [Cite: Wachtel, Revisiting Goldwater v. Carter Princeton Law Review, 2005.]


Turning once more to the pending litigation challenging the Executive branch:
To support application of avoidance doctrine, the Justices most likely will find lack of justiciability premised on a lack of standing because plaintiffs unable to sufficiently state injury doctrine by finding.

A little review always helps me on these matters. The following criteria are necessary to establish "standing:"

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, [rather than] speculative, that the injury will be redressed by a favorable decision...This Court has consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large- does not state an Article III case or controversy."
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Net effect of Prof. Kerr's Footnote 4...At best, it is a quasi-advisory opinion/preview of things to come that avoidance doctrine will be applied.

If we taught a dog to talk, could he tell us anything?
Thoughts always appreciated.
DRS.
2.16.2006 6:41am
anonymouslawyer (mail):
Just an Observer, thanks for unwittingly making my point. If this case ultimately is litigated, do you really think it would be persuasive advocacy to argue that the In re Sealed Case dicta should not be followed because of (1) a Washington Post article quoting anonymous source, (2) the fact that the DOJ has not brought a case to the FISA Court of Review, and (3) something that Hugh Hewitt has said on his blog? Anyone making those kinds of arguments to a court is liable to have his or her head taken off.
2.16.2006 8:19am
Just an Observer:
anonymouslawyer,

You missed my point, which was responding to your non-normative arguments. In that context we are not talking about the merits of the argument that dicta in In Re Sealed Case supports the President's legal theory, but whether anyone has faith in that argument.

Quite obviously, the DOJ lawyers do not have faith in that argument, or they would have made it in court. Yet their strategy is to avoid judicial review of the controversy in the only court where the dicta might have weight.

It's really very simple: Tell it to the judge, Mr. President, or don't expect the rest of us to take your "legal" argument seriously.
2.16.2006 10:20am
Medis:
srp,

As you can see, I take breaks as well.

Anyway, on the bombing court: I do indeed disagree about what we know about the NSA program at issue. I actually haven't seen anyone in the Administration (as opposed to pro-Administration private parties) claim this program just involves your captured cellphone scenario. To my knowledge, the Administration has steadfastly refused to give any such details, and has merely stipulated that the program does in fact involve electronic surveillance within the meaning of FISA. They have also never denied nor confirmed that U.S. persons have been targeted. Rather, they have merely stated that the communications involve at least one party outside the country, and that they have probable cause to believe that at least one party to the communication is an agent or associate of Al Qaeda in some way. But again, to my knowledge, they have never claimed that the aforementioned suspected agent or associate of Al Qaeda is actually the foreign party, nor generally that only the foreign parties are the targets of the program.

In any event, if we are asking about the constitutionality of FISA, then we have to ask about what it actually covers. And so you have to structure your bombing hypo accordingly.

On laws versus commands: I don't pretend this is an analytically neat distinction, and there will undoubtedly be close cases in various applications. And I do realize that many post-Hayek thinkers have argued that this distinction has little value, if any. Nonetheless, I would suggest that the pre-Hayek Framers of the Constitution had exactly this sort of thing in mind, and so until we change the Constitution, we are bound to do our best to give effect to their distinctions.

A couple minor points:

(1) This distinction isn't just an issue of "specificity". I'd also suggest there are elements of "particularity" and "individuation". So, very specific laws that deal with very specific matters may still not be particular commands dealing with individual issues.

(2) Judges do indeed issue highly specific, particular, and individuated orders, as I noted above. The distinction I drew between "judgments" and "commands" was not based on the same distinction as between "commands" and "laws".

(3) Executive Orders and other administrative regulations can indeed be very lawlike. But insofar as these Orders and regulations fall within the scope of Congress's enumerated legislative powers, I would suggest Congress can override them.

On "agency": I disagree about the relationship between laws and the "will" of Congress. The intentions of Congress at the time they based a law may be relevant to what we understand that law to mean. But what ultimately matters is what they DID--the law they actually made--not what they WILLED.

And similarly, mere changes in the Will of Congress do not change what they DID. To change what they DID, they have to change the law--and that takes going through the Article I process again. And, of course, all this is subject to Presidential veto and judicial review for constitutionality. In that sense, the process of making of law is not completely delegated to Congress, although they do play the most important part in the process.

So, again, I cannot stress enough that I do not accept your claim that judges or executive officers are agents of Congress simply because Congress has this role to play in making law. The laws Congress help to make are often a crucial input into the decisions of the other two branches, but those other branches are NOT bound to act on behalf of Congress NOR to obey the WILL of Congress. Rather, they are only bound to accept that when a bill has completed the Article I process, and is not subject to invalidation by the courts for unconstitutionality, then they must accord that bill the status of law as they decide how to use their own powers.

And even then, the law is only one of the inputs for their decisions, not the ONLY input. For example, the judicial branch still needs to make particular factual findings, and to apply law to those facts. And so in that sense, judges do indeed exercise power which is independent of Congress, and not subject to the will of Congress.

Finally, on history: As I see it, here is the problem. You are appealing to your intuition about what the Framers would have wanted, but that is obviously not a very persuasive source for Constitutional analysis. And the basic textual argument is simple: Article I does give power to Congress to make military law, and Article III does extend the jurisdiction of the courts to all cases arising under federal laws or where the United States is a party. Moreover, Article III specifically commits to Congress the power to make exceptions to the jurisdiction of the courts.

So, you are basically suggesting that there is a nonetheless an unstated exception in Article III for military law, and that Congress does not have the power to vary that exception. But with all due respect, I don't think your intuition can be enough to overcome the conclusion that the decision on whether to except the armed forces from Article III jurisdiction was left to the discretion of Congress.
2.16.2006 1:29pm
Medis:
KMAJ,

I agree that in your purely theoretical comments, you have not been very specific about your desired end results. I am drawing that information from your other comments. And again, my point is simply that structurally, you are adopting the same basic theory as "critical legal studies", but then applying that theory with a different end result in mind.

anonymouslawyer,

As an aside, what, if any, weight a court gives to the dicta in In re Sealed Case depends in part on the relationship between that court and the FISCR.

But in any event, I stand by my comment even with respect to the FISC (which would be the one court bound to take a close look at that dicta). I really don't see how the FISC could interpret and apply that dicta in light of the FISCR's failure to provide any definition of a key term ("to encroach"). So, a FISC judge may not like having to hold that this dicta is indeterminate, but I don't see what choice that judge have, because it just doesn't have an ascertainable meaning.
2.16.2006 1:37pm
Medis:
DRS,

As an aside, as often noted, the "political questions doctrine" is a pretty bad misnomer. In Goldwater, for example, what that meant was that Congress had other means by which to vindicate its interests, and therefore individual members of Congress could not bring suit. But if you are talking about a private party without those other means, then the "political questions" doctrine is inapplicable, even if there is an underlying, politically-charged, separation of powers issue in the case.

But I agree the real question is under what circumstances could a private party have standing to challenge this program. The one obvious example would be a party who had been, or would be, the target of such a program. And as it turns out, that party does not literally have to be in the court making argument in order to create a justiciable controversy.

Indeed, for many court proceedings involving government actions that would interfere with a particular private party's legal rights, the private party is assumed to be adverse to the actions. This happens in many contexts, such as criminal trials in absentia, or cases in which a party is an infant, or so on. If necessary, the court can appoint an amicus to represent this private party and make arguments on their behalf. This, of course, is what actually happened in In re Sealed Case--the FISCR appointed amicus counsel to argue on behalf of the private parties whose interests were at stake.

Alternatively, Congress could change the law and give some additional private parties standing to challenge the law. I think the simplest example would be to give expressive organizations with significant international communication activities the legal right to challenge a surveillance program on "chilling" grounds.

Lujan does not actually rule out such "citizen suits", but rather establishes some of the requirements for bringing such suits. And although it remained somewhat unsettled in that case to what degree Congress could create standing for such suits by operation of statute, subsequent cases such as Akins and Laidlaw established that Congress does have broad versions of that power.
2.16.2006 2:06pm
srp (mail):
Medis: Either we're losing energy or we're coming to fundamental disagreements that can't be hashed out in a forum of this kind. Which is OK--I think we've gotten pretty far in exploiting this medium, with something like seven or eight constructive responses (within a thread of 240+ comments).

My last posts made lots of specific points: criticized your policy vs. execution vs. judgment distinction on the terms you originally offered as to specificity, answered about the oaths of office, turned around your analogy between government and business to show that it supported my interpretation rather than yours, explained how the rule of law is encompassed within my agency interpretation (the Article I process tells us what the will of Congress [subject to veto] actually is), and so on. None of this was addressed directly in your last post on the subject. Were I to respond, I would just be following the American-to-foreign-tourist approach of typing the same thing s-l-o-w-e-r and LOUDER, which seems both rude and unproductive.

Furthermore, I don't think we're going to agree about the NSA program under dispute. I highlighted the Administration's willingness to use the FISC for ordinary surveillance of domestic persons to try to convince you that we're now talking about US folks getting roped in through tracking of foreign enemy communications. I guess it didn't work, but I don't know why. I have, to date, heard zero evidence to suggest that the domestic aspect of this is anything other than a) one end of the communication is US and/or b) the technical physical means of interception may be on US soil, but maybe you have other sources I haven't read.

Finally, I agree that my intuitions about Framer intent on Article III and the C-in-C power have no probative weight on their own. I don't think there's going to be much textual evidence on either side because 1) our current threat situation is unprecedented in certain ways and 2) I don't think anyone on any side of the debates over the new Constitution would have contemplated asking the Commander-in-Chief to get a warrant when undertaking military operations. It strikes me as fairly nutty, and well beyond the "least dangerous branch" view of the courts that informs the Federalist Papers.
2.16.2006 3:52pm
Medis:
srp,

I agree that we may be reaching an impasse, so I will just note three brief points.

First, neither you nor I actually know why the Administration stipulated that this program involves electronic surveillance within the meaning of FISA. You are apparently adopting a hypothesis and asking me to disprove it, but of course I can't disprove your hypothesis, because I don't know the details of the program. Conversely, you can't disprove any alternatives to your hypothesis, for precisely the same reason--you don't know the details of the program.

In short, you are guessing, and saying you haven't heard any confirmed facts which contradict your guess. But neither have the people with different guesses heard any confirmed facts which contradict their guesses. And that is because we have gotten no decisive and confirmed facts at all.

Second, I believe that if you choose to take the time to review my post, you will see that I did respond to many of the aspects of your prior post that you cited, if not in precisely the same order and structure as you used.

Third and finally, as I see it the ultimate issue is whether a specific answer to the question of what role the courts should play in war is written into the Constitution, and if not, to which institutions and processes the Constitution has committed the power to make those decisions. And I think if all you can say is that "I don't think there's going to be much textual evidence on either side," then it appears the answer is not in fact written into the Constitution. Moreover, in light of the fact that Article III grants very broad jurisdiction to the courts and then specifically delegates to Congress the power to make exceptions, I think we also know the answer to the question of which institution is supposed to decide--subject, of course, to the presidential veto.

So, I think you are not really making constitutional arguments when you talk about the proper role of the courts in war. Rather, I think you are making the sorts of arguments that Congress, and the President when acting under his legislative powers, might well consider. But insofar as a bill reflecting a different decision has become a law through the Article I process, I don't think you can claim that this decision is barred by the Constitution itself.
2.16.2006 5:42pm