"Inherent Authority" to Violate Federal Law?

Marty Lederman

A thoughtful interlocutor ("T. More") gently inquired, in a comment to a previous post, whether my posts on the NSA matter wouldn't be more effective, more persuasive, if I stopped bolding and emphasizing the adjectives "criminal" and "felonious" -- a tactic that, he rightly chided, might make my posts appear too intemperate, especially in light of the fact that previous Presidents have "presumed the [article II] power to eavesdrop on our enemies, and that even Carter and Clinton authorized warrantless wiretaps."

His comment alerted me to the fact that I have not been clear about the reason for my emphasis on the lawbreaking nature of the conduct here. I've bolded adjectives such as "criminal" not because I'm trying to get folks to think that the President should be locked up, or impeached, nor to precipitate a criminal investigation (and certainly not, T. More, to suggest that those who disagree with me are criminal or mendatious!). Instead, I've been emphasizing those words in order to signal the radical nature of the constitutional power that this Administration is asserting: the presidential power (under article II) to act in violation of federal criminal statutes (the Torture Act, the UCMJ, the War Crimes Act, FISA, etc.) if such statutes impinge in any way on the President's judgment about how best to execute the war on terrorism. That assertion of a sweeping constitutional power to ignore any duly enacted laws that impinge on what the President could otherwise do in war is, I think, virtually unprecedented in U.S. history.

Over the past 48 hours, we've heard defenders of the President increasingly focus on the argument that the President has "inherent" authority to engage in warrantless sureveillance of the enemy. It's important here to heed Justice Jackson's warning in the Youngstown steel seizure case that "[l]oose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers," and that terms such as "'[i]nherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers" are often bandied about in such discussions "without fixed or ascertainable meanings."

Just to be clear, then: The Administration is claiming not simply that the President has some "inherent" authority to surveille the enemy in times of war -- a proposition that is undoubtedly correct -- but instead the much broader, more audacious claim that the President has an unregulable authority, such that he may ignore FISA's constraints. That is to say, their claim is that FISA itself is unconstitutional.

A lot of folks are making a category error here -- a Youngstown category error, that is -- with respect to the nature of "inherent" presidental powers. Over at Powerline, for instance, John Hinderaker argues that "Congress can neither add to, nor detract from, the constitutional powers of the executive branch." This is simply flat-out wrong -- a fundamnetal misunderstanding of foreign affairs and war powers under the Constitution. These are the most important -- and truest -- words in all of Justice Jackson's concurrence:

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.

It is true, as T. More writes, that previous Presidents have "presumed the [article II] power to eavesdrop on our enemies, and that even Carter and Clinton authorized warrantless wiretaps" (although my understanding is that the Clinton example folks are citing was not a wiretap but a physical search). I doubt that any President has asserted the right to engage in a dragnet as intrusive on U.S. person conversations as this appears to be -- or as tenuously tied to the enemy as this apparently is -- but, be that as it may, I don't disagree about the history.

Indeed, I do not deny that the President has the power as Commander-in-Chief to engage in at least some forms of warrantless surveillance against the enemy in the absence of statutory prohibition. That would be a Youngstown "Category II" case, and the conduct would probably be constitutional to the extent it did not violate the Fourth Amendment.

Thus, if we were still back in the mid-1970s, before the FISA prohibition in question had been enacted, I would not be complaining too much here about the President's constitutional authority to authorize the surveillance (except perhaps on Fourth Amendment grounds). Indeed, from 1968 to 1978, a statute was on the books that specified that the then-existing federal wiretapping law was not intended to in any way limit the constitutional power of the President: "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities."

During that period, some (if not all) of the warrantless surveillance here may have been within the President's constitutional power. (I may slightly disagree with the superlative post of my esteemed co-blogger Stephen Griffin on this point: Although the President may not have "inherent" authority to engage in all of the surveillance that FISA regulates (if it intrudes too much into the domestic setting, for instance), he certainly has some constitutional authority to spy on the enemy, even where the enemy is speaking to U.S. persons -- as long as there are not statutes regulating such surveillance!).

But the critical point for present purposes is that, as Prof. Griffin emphasizes, the Nation had exactly this debate in the mid-70s -- after gross abuses in connection with such warrantless surveillance -- and the legislature and Executive agreed to enact FISA, a statute regulating such warrantless surveillance. Moreover, FISA specifically repealed that prior provision of law preserving virtually unbounded Executive discretion.

That puts us in Youngstown Category III, where the President's constitutional authority to act -- even if he had it in the first place -- is at its "lowest ebb." (The Youngstown "categories" and quotations are from Jackson's concurrence, which "brings together as much combination of analysis and common sense as there is in this area." Dames & Moore, 453 U.S. at 661. For much, much more on Youngstown and the Administration's assertion of Executive authority, I'd urge you to please read Jack's extremely helpful post here.)

As far as I'm aware, Presidents Carter and Clinton did not authorize any surveillance that would violate any duly enacted law.

This Administration, by contrast, sees statutes as mere parchment barriers. Their argument -- just to be clear -- is that FISA, and the Torture Act, and the Uniform Code of Military Justice, and the federal assault statute, and the War Crimes Act, and the 60-day-limit provision of the War Powers Resolution -- and even the 9/18 AUMF itself (to the extent it is read, as it ought to be, as in some respects limiting the scope of force -- and treaties governing the treatment of detainees, and (probably) the Posse Comitatus Act, and who knows how many other laws, are unconstitutional to the extent they limit the President's discretion in this war. In OLC's words -- written just one week after the AUMF was enacted -- neither the WPR nor the AUMF, nor, presumably, any other statute, "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." "These decisions," OLC wrote, "under our Constitution, are for the President alone to make."

Think about that.

Such a sweeping claim of presidential power to ignore all statutes regulating his behavior in warime is radical and profoundly troubling -- and, as far as I know, virtually unprecedented. (I welcome other examples of such an extreme assertion.)

And that is what this crisis -- from the torture memo to the FISA violations, and much else in between -- is about. That is to say: It's not about warrantless surveillance (or not only about such surveillance, anyway); it's about this Administration's assertions that Congress has no role to play in the war on terror; that "mere" statutes cannot limit the President's discretion; that FISA and the Torture Act, and the War Crimes Act, etc., are unconstitutional; and that the President can (and does) violate such statutes if they stand in his way.

P.S. The Administration's defenders are citing a 2002 dictum by the FISA Court of Review: "We take for granted that the President does have that authority [to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (emphasis added). That throwaway line -- not germane to the holding in that case -- was almost certainly written by Judge Laurence Silberman, who (I am told) testified in his personal capacity to the same effect in the mid-1970's, when FISA was being considered. The dictum is, in my view, dead wrong, not because the President doesn't have the authority to conduct warrantless searches to obtain foreign intelligence information -- in the absence of statutory restriciton, he probably does -- but because even if he does, FISA can and does "encroach" on (i.e., modestly regulate) that authority. More to the point, however, Congress and the President rejected Silberman's unorthodox constitutional view when they enacted FISA, and the FISA system has worked for almost three decades on the assumption -- shared, as far as I am aware, by all three branches, without any dissent until Silberman's stray dictum -- that its modest constraints are not unconstitutional usurpations of presidential authority. If Silberman and the Bush Administration are correct, then there's no need for FISA at all -- nor for the FISA Court. The President may simply proceed with surveillance on his own iniitiative, if he thinks it will help in the war on terrorism. As one FISA judge said to the Washington Post, "members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court."

[UPDATE: Well, just goes to show you never know: It appears the Administration is running (at least for now) only with the argument that the AUMF authorized exceptions to the FISA regime, and not that FISA is unconstitutional under Article II: See the DOJ Letter here.]
Posted 11:15 AM by Marty Lederman [link]