Balkinization  

Monday, February 05, 2007

Two Concepts of Commander-in-Chief

JB

Just as there are two inconsistent theories of the idea of the "Unitary Executive," there are two inconsistent theories of the term "Commander-in-Chief."

Under the first theory, the Constitution's designation of the President's as Commander-in-Chief means that the military is and should be ultimately under the control of civilian government and its requirements of republican government and the rule of law. This idea is designed to head off the tendency in many countries that begin as democracies for the military increasingly to dominate civilian authority, eventually, in the limiting case, leading to overt military disobedience of civilian authority and military coups.

The Framers distrusted the idea of standing armies and feared the degeneration of democracies into dictatorships, a distrust that is evidenced in several features of the Constitution-- the requirement that army appropriations must be regularly renewed, the Second Amendment's right to bear arms (so as to counter an oppressive federal army) and civilian control of the military, as embodied in the idea of the President as Commander-in-Chief and Article I section 8's delegation to Congress of law making and appropriations power over military matters.

Implicit in the very notion of civilian control of the military is that the President is a civilian, not a military official; because the President would be subject to the rule of law (including Congressional regulations and appropriations under Article I, section 8), so too would be the military that the President directed.

The second conception of the President as Commander-in-Chief is that the President stands at the head of the armed forces of the United States and therefore that he is and should be entrusted with all important decisions regarding the conduct and use of the armed forces. Under this conception, Congress may not interfere with the President's use of the military (despite textual authority for doing so in Article I, section 8) because this would undermine or interfere with the Presidential chain of command. This idea is analogous to but not identical with the version of unitary executive theory that says that Congress may not regulate an expansive set of inherently executive functions.

The problem with the second conception of Commander-in-Chief is that it turns the Framers' principle of civilian control over the military on its head, realizing the Framers' fears in a different way. The danger now is not that the military will act independently and pressure the civilian government into capitulation but that the President will see the opportunity to use his position as head of the military to escape Congressional and judicial control; he will use control of the military and patriotic appeals to take the country into a series of misguided wars or to establish quasi-dictatorial powers.

Both scenarios are troublesome constitutionally. The Framers feared both Caesars-- military officials who bully republican forces and ultimately take over civilian government-- and monarchs-- who sit at the head of civilian government and use their power over the military to disregard legislative and judicial controls.

In order to secure civilian control of the military, the civilian authority that controls the military must *itself* be subject to legal controls by the other branches; otherwise it will be tempted to use its control over the military to dominate the remainder of civilian government. The President can dominate politics by emphasizing threats-- whether real or imagined-- to national security and by engaging the military in repeated wars, whether wise or unwise. The framers well understood that incompetent or vainglorious leaders have moved from one unwise military conflict to another in order to dominate the political agenda and maintain their political control. Because national security is the source of the President's political independence and rhetorical authority, Presidents who lack good judgment will be tempted to use that independence and that authority for all that they are worth. Such a President will increasingly identify the good of the nation with himself and with his ability to make decisions; he will castigate critics as unpatriotic or as undermining the military chain of command in time of war. This is Caesarism by a different route.

Thus, *precisely* because the President is Commander-in-Chief, and ultimately in control of the military, someone else in civilian government who is not under his control must be able to check his adventures and hold him accountable to law.

That is why the two different theories of "Commander-in-Chief" are inconsistent with each other. You can have the President exercise civilian control over the armed forces. (Theory one). And you can have the President effectively immune from Congressional control over how he uses the armed forces in his control. (Theory two). But you can't have both. Otherwise Presidents may use the military to maximize their political power and to minimize legal constraints on their actions. This lethal combination ultimately destroys republican government. In the alternative, the country may get an incompetent President who gets the country into disastrous and wasteful conflicts with no effective way to stop him. That tempts Congress to turn to the military to discipline or forestall the President, which ultimately undermines civilian control of the military. What the Congress gains by stopping a runaway President it loses by weakening the principle of civilian control in encouraging the military to act as a counterweight to the White House.

All this came to mind as I considered this despairing analysis by James Fallows, who is greatly worried that the Bush Administration may soon find an excuse to attack Iran:

If we could trust the Administration’s ability to judge America’s rational self-interest, there would be no need to constrain its threatening gestures toward Iran. Everyone would understand that this was part of the negotiation process; no one would worry that the Administration would finally take a step as self-destructive as beginning or inviting a war.

But no one can any longer trust the Administration to recognize and defend America’s rational self-interest — not when the President says he will carry out a policy even if opposed by everyone except his wife and dog, not when the Vice President refuses to concede any mistake or misjudgment in the handling of Iraq. According to the constitutional chain of command, those two men literally have the power to order a strike that would be disastrous for their nation. The Congress has no official way to prevent them from doing so — it is interesting, and alarming, to think that in practice the safety valve might be the professional military, trained to revere the chain of command but faced with what its members would recognize as ruinous instructions.


But as Fallows recognizes, our constitutional system cannot afford this particular safety valve. The military must follow civilian orders. The way out of the danger is not to look to the military to discipline the President. Congress must reassert civilian control over over the Presidency through its Article I, section 8 powers.

It is true that the President sometimes needs to make threats that he does not intend to carry out in order to be a credible bargainer on the international stage. But to do this he must also have credibility at home-- people have to trust that he will act reasonably and not get the country into a disastrous conflict-- as he has before-- and disregard wise counsel and recalcitrant evidence-- as he has before. The President must regain the trust of Congress before he can usefully engage in saber rattling. Until he does so, Congress must rein him in. The current Democratic strategy of nonbinding resolutions, I fear, will not be enough. They will be too easily disregarded. The Democrats have assumed that nonbinding resolutions will signal to the President that he is isolated politically. That will do nothing. This President already knows that he is isolated politically. He already knows that the public is against him and he plans to proceed in any case. Like any headstrong individual, this President needs to understand that there will be real consequences for not acting responsibly.

This Administration has undermined the constitutional system in general and the Presidency in particular. Executive discretion in a system of separated powers requires trust and confidence in the quality of executive leadership by the other branches and by the American people themselves. The Administration has been so insistent on maximizing executive authority through foolish decisions that it has destroyed those elements of trust and confidence. As a result, the other branches must now check the President. The Administration that sought to increase Presidential authority may well end up diminishing it.


Comments:

The Courts have pretty much settled this question. The President is the "sole organ" of and makes the decisions on behalf of the nation concerning foreign policy, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), except where Article I provides a specific enumerated foreign power to Congress. Hamdan v. Rumsfeld, 548 U.S. ___ (2006) (holding that the President may set the rules for military captures until Congress acts pursuant to its enumerated Article I power to set rules for Captures).

The fact that the Constitution grants the President rather than Congress (with enumerated exceptions) the primary power over US foreign policy hardly raises the specter of military dictatorship. Both branches are equally civilian and elected by the People.

Nor may the President constitutionally start wars on his own. Article I expressly grants to Congress the power to declare war, which Congress exercised in enacting AUMFs for both the wars against al Qaeda and Iraq.

Finally, Mr. Fallows' suggestion that the President should threaten war in the country's negotiations with Iran to stop that fascist regime from acquiring nuclear weapons, but not really intend to go to war, both undermines the negotiations and removes the final tool for stopping Iran from arming itself with nuclear weapons. Iran is openly laughing at the EU negotiators and UN sanctions because it knows that these bodies will not take action if negotiations fail. Any president who wants to remain credible with our enemies will surely not follow this course.

Indeed, Iraq invaded Kuwait partially because it believed that we would not go to war to take back Kuwait. Then, Iraq refused to cooperate with the UN and Coalition inspectors after the Persian Gulf War ceasefire because it mistakenly believed the the Coaltion would not go to war to enforce the ceasefire. Thus, if he or she wants to avoid war, the President had better make it crystal clear to our people and their enemies that the nation is prepared to go to war to back up its demands.
 

To assert that dicta in Curtiss-Wright "settled this question" is far off the mark.

For a deeper treatment of the "sole-organ" dicta, see this article by Louis Fisher of the Congressional Research Service.
 

Bart DePalma writes:
"The fact that the Constitution grants the President rather than Congress (with enumerated exceptions) the primary power over US foreign policy hardly raises the specter of military dictatorship. Both branches are equally civilian and elected by the People."

I'm afraid that he is using the word "military" as the rabbit in his hat. Jack's post is about the prospect of dictatorship (and Caesarism). Caesarists are, after all, usually "elected by the People," and the Caesar views that election as the bestowal of a mandate to do whatever he believes in the public interests, with few or no fetters. This obviously does not start with Bush; Andrew Jackson is usually given the honors, though Bruce Ackerman argues that Thomas Jefferson interpreted the election of 1800 as giving him a plebescite (see, e.g., his self-perceived unconstitutional actions via-a-vis the Louisiana Purchase). It is simply that George W. Bush is capable of doing harm to the nation (and the world) that Jefferson and Jackson could literally never have imagined. In any event, American republicanism is dead whether the dictator wears a uniform or is a civilian, so long as (s)he recognizes no real limits on his/her ability to "decide" and, especially, to use military force.

Jack raises another point, incidentally, which is what game theorists call "the rationality of (appearing) irrational," i.e., the ability to make certain lunatic threats (such as actually engaging in nuclear war) credible by appearing somewhat unhinged. The Iranians are playing this card brilliantly, though one suspects that Jacques Chirac is absolutely correct that the prospect of losing Tehran will in fact keep them in line, even with nuclear weapons. What is distinctive about Bush and, even more, Cheney, is that one can have no confidence that they're merely play-acting. It is altogether possible that they really are demented. Interestingly enough, the Constitution, for all of its inadequacies, does give us a way out--the 25th Amendment--but, of course, it is unthinknable that the Bush Cabinet itself will save the country by declaring their bosses to be bonkers.
 

Professor Levinson:

Caesars and dictators occasionally assume power by being elected, but they always end up ruling by decree and decline to give up power after their term in office is completed. The US has been blessed that none of our Presidents has attempted to take this course.

If the Caesarism to which you refer is when the President exceeds his Article II constitutional power, I have yet to see Mr. Bush cross this line except in the case of Padilla's detention. When a court disagrees with Mr. Bush's interpretation of his powers, Mr. Bush has followed the court order. This is hardly the mark of a Caesar.

However, what I think you are truly referring to as Caesarism is when the President exercises his normal Article II constitutional powers to prosecute a war which you personally oppose. Such a case does not represent any danger to the American Republic, but rather a disagreement of opinion. You will get another chance to voice your opinion by casting a ballot for the next President in 2008. Meanwhile, you are stuck with this elected civilian commander in chief (that is until you convince folks to amend the Constitution).
 

JaO said...

Bart DePalma said...The Courts have pretty much settled this question. The President is the "sole organ" of and makes the decisions on behalf of the nation concerning foreign policy, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), except where Article I provides a specific enumerated foreign power to Congress. Hamdan v. Rumsfeld, 548 U.S. ___ (2006) (holding that the President may set the rules for military captures until Congress acts pursuant to its enumerated Article I power to set rules for Captures).

To assert that dicta in Curtiss-Wright "settled this question" is far off the mark.


I cited to the Curtiss- Wright opinion to give the source of the term "sole organ" so folks like arne and jt don't think that I invented it.

However, since you wish to explore the "sole organ doctrine," I would note the following passage from Louis Fisher's treatise:

Robert Jackson, as Attorney General, relied on Curtiss-Wright to defend the destroyers-bases agreement entered into by President Franklin D. Roosevelt in 1940. Yet he also drew some boundaries to cabin executive power: “The President’s power over foreign relations while ‘delicate, plenary, and exclusive’ is not unlimited. Some negotiations involve commitments as to the future which would carry an obligation to exercise powers vested in the Congress."

Robert Jackson's opinion appears to echo my description of the relative powers of the President and Congress over foreign affairs. What make this opinion even more interesting is that Justice Jackson would later write the concurrence to the Steel Seizure Case of 1952, which has been often cited as authority by those who claim that Congress can enact nearly any statute it wishes to limit or eliminate the President's Article II powers.

Finally, I would also note that the Curtiss-Wright was frequently applied by subsequent Courts, which also echo my description. See Fischer, The Sole Organ Doctrine, p. 23-27.
 

This comment has been removed by the author.
 

Bart,

But you are just making stuff up.

Your previous statement, "The President is the 'sole organ' of and makes the decisions on behalf of the nation concerning foreign policy, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), except where Article I provides a specific enumerated foreign power to Congress," is simply not supported by the Curtiss-Wright dicta.

That "sole organ" dicta did not restrict congressional action, did not evaluate what Congress could do under Article I, nor did it assert presidential supremacy over the will of Congress. Rather, it argued that even in the absence of congressional authorization, presidents have an independent authority in the general field of foreign affairs. That is very different from saying that "the president makes the decisions" if those "decisions" violate acts of Congress.

Fisher made that point strongly, as did Justice Jackson in disposing of the Curtiss-Wright dicta within his famous concurrence in Youngstown.

In summary: 1) The Curtiss-Wright dicta "settled" nothing because it is merely dicta; 2) even that dicta did not assert what you claim it did.
 

JaO:

To assert that dicta in Curtiss-Wright "settled this question" is far off the mark....

But for "Bart" to assert dicta as a "holding" is SOP for him (he's done it numerous times, as in the Pentagon Papers case, and In re: Sealed Case). He's a cut'n'paste troll, snipping stuff out of the context, and away from the legal argument being made, because it's come up in Google or Lexis and seems to support his position.

Cheers,
 

Bart said:

>>Caesars and dictators occasionally assume power by being elected, but they always end up ruling by decree and decline to give up power after their term in office is completed.

As usual, your ignorance of all things historical comes through. Even if we just confine ourselves to the period of your "Caesar" remark, your statment is bunk. Sulla resigned his dictatorhip after two years of unchallenged rule, giving his power back to the Roman senate.

This is just your usual moving of the goalposts. You come up with an absurdly narrow definition of dictatorial behavior (someone who declines to give up power after his term of office is up) -- as if that is the only mark of a dictator -- and then point out that Bush hasn't done this. Ergo Bush isn't dictatorial.

"Ruling by decree?" Don't you mean "protecting the perogatives of the unitary executive?"
 

Jao:

[I said]: But for "Bart" to assert dicta as a "holding" is SOP for him (he's done it numerous times, as in the Pentagon Papers case, and In re: Sealed Case).

For example, here's "Bart" from above:

["Bart"]: Hamdan v. Rumsfeld, 548 U.S. ___ (2006) (holding that the President may set the rules for military captures until Congress acts pursuant to its enumerated Article I power to set rules for Captures).

Actually, the Supreme Court made no such "holding".

In fact, the only occurence of the word "captures" in Hamdan v. Rumsfeld is this single sentence:

"The Constitution makes the President the 'Commander in Chief' of the Armed Forces, Art. II, §2, cl. 1, but vests in Congress the powers to "declare War ... and make Rules concerning Captures on Land and Water,'..."

In point of fact, Hamdan concerned military commissions, not captures.

The Hamdan opinion goes on to say:

"Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions 'without the sanction of Congress' in cases of 'controlling necessity' is a question this Court has not answered definitively, and need not answer today.

Id.

If he (perhaps) can't do it in cases of "controlling necessity", it's pretty clear that they didn't say, even in dicta, that he could do so in all circumstances where Congress had not yet acted.

So even if "Bart" was talking about military commissions, and not "captures", and simply misspoke, the Hamdan decision is to no avail (even as dicta).

Once again, typical "Bart" bollocks.

Cheers,
 

JaO said...

Bart, But you are just making stuff up.

Really? Let us see who is "making stuff up."

Your previous statement, "The President is the 'sole organ' of and makes the decisions on behalf of the nation concerning foreign policy, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), except where Article I provides a specific enumerated foreign power to Congress," is simply not supported by the Curtiss-Wright dicta.

To start, you neglected to include the Hamdan case cite I used as authority for the second clause of the sentence.

The proposition for which I cited Curtiss-Wright was: The President is the 'sole organ' of and makes the decisions on behalf of the nation concerning foreign policy...

Are you claiming that Curtiss-Wright as well as the several subsequent Court cases citing Curtiss-Wright as authority do not stand for this general proposition?

That "sole organ" dicta did not restrict congressional action, did not evaluate what Congress could do under Article I, nor did it assert presidential supremacy over the will of Congress.

Where do you read this in the above clause?

Fisher made that point strongly, as did Justice Jackson in disposing of the Curtiss-Wright dicta within his famous concurrence in Youngstown.

Would you care to quote the passage of the Jackson concurrence in Youngstown which you claim "dispos[ed] of the Curtiss-Wright dicta?

The Curtiss-Wright dicta "settled" nothing because it is merely dicta

You may want to review the case law which keeps citing the Curtiss-Wright dicta to inform the Court's ongoing view of the division of foreign policy powers between the President and Congress. The Court certainly does not act like the view of the Curtiss-Wright court has been "disposed of."
 

"Bart" DePalma:

Indeed, Iraq invaded Kuwait partially because it believed that we would not go to war to take back Kuwait....

Anything to do with April Glaspie?

Cheers,
 

porter29 said...

Bart said: Caesars and dictators occasionally assume power by being elected, but they always end up ruling by decree and decline to give up power after their term in office is completed.

As usual, your ignorance of all things historical comes through. Even if we just confine ourselves to the period of your "Caesar" remark, your statment is bunk. Sulla resigned his dictatorhip after two years of unchallenged rule, giving his power back to the Roman senate.


You may want to check your facts before you start calling others ignorant.

I was referring to the Caesars. Sulla preceded Julius Caesar and was not known by the appellation "Caesar" as were the emperors who followed Julius.
 

"Bart" DePalma says:

["Bart"]: The President is the "sole organ" of and makes the decisions on behalf of the nation concerning foreign policy, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), ...

[JaO]: To assert that dicta in Curtiss-Wright "settled this question" is far off the mark.

["Bart"]: I cited to the Curtiss- Wright opinion to give the source of the term "sole organ" so folks like arne and jt don't think that I invented it.


Nice dodge. But I guess then thagt FSULS didn't bother to teach the rudiments of citation to their 1Ls. Because you made a statement. And then immediately cited a case. That looks pretty da*n much like a cite to back up the statement, not to explain the origins or ambit of the term "sole organ". If the latter was your intent, you should have said so.... Not to mention, one hardly needs a case citation to provide a "source" for a term, particularly one as commonplace as "sole organ".

Cheers,
 

More mundanely, I would suggest that the founders made the President the commander in chief only because the English monarch was so designated. The English monarch is still designated the commander in chief, but even then the monarch was unable to act or command anything except through his ministers, and his ministers were the leaders of parliament. Thus his designation as commander in chief meant little, but perhaps the founders did not understand that, or willfully ignored it.

Our present situation is eerily similar to the situation in 1639 when Charles I tried to rule his country as an absolute monarch and do whatever he felt like doing. For this he was executed, but the solution to the problem he created was not devised until 1688 when parliament forced the monarch to agree to have as his cabinet the leaders of parliament, and to do nothing except through those ministers. Real control over the government was thus shifted to parliament, and England has had a stable government since.

I would suggest that it is time now for something similar to happen in the US government. It is been a tradition for over 200 years for the President to hire and fire his cabinet. There is nothing in the constitution that says it has to be this way. The President nominates and appoints his cabinet, but so does the English monarch. The constitution says nothing about how these individuals are chosen to be nominated, and therefore Congress is free to assume a major role in determining these choices. I would suggest that it should start doing so. Only then will the control of the president be secure.

GYL
 

Bart said:

>>Sulla preceded Julius Caesar and was not known by the appellation "Caesar" as were the emperors who followed Julius.

Please point out where I said Sulla was "known by the appellation 'Caesar'."

You said, "Caesars and dictators occasionally assume power by being elected..." Is it your claim that Sulla wasn't a dictator?
 

Porter29:

Because Sulla gave back power, he does not fit the traditional definition of a dictator. He is the proverbial exception which proves the rule.
 

JB's review of this topic in the constitutional context is timely for many reasons, including the topics discussed by the cite about the 'next war', and other possible presidential gambits. I suspect when congress next approaches reviewing the unitary executive phraseology which now has appeared in more than one hundred iterations in various 'signing statements', the somewhat altered balance on the hearing committees compared to last visitation of the topic will unearth new information. Additionally, I would imagine consideration of the bureaucracy's burgeoned size could illuminate some of the modern factors at play in neoCesarism; although some references to this topic appeared on this website in discussions last year, I would think a more full examination of them might help depict the context of the current and possible separations of branches. Specifically, I am referring to the few agencies which bridge several branches of government in somewhat hybrid fashion; none of these fundamentally is engaged in presidential vs congressional authority over segments of the military and entry into conflicts; but some are related, possibly. As the article, above, developed, immediately the civilian appointees' precedence in the pentagon came to mind; in prior discussions agencies like FDA were mentioned as examples of multibranch entities which suit the modern bureaucracy's needs; some of this was in allusions by Sen. Leahy during the Roberts nomination hearing for chief justice. From the signing statement perspective, many passages in those texts refer to implementation of new laws by such hybrid agencies. It would be interesting, if this is sufficiently clearly expressed, to read the author's insights about the purpose and integration of such hybrid entities which serve several branches. I have yet to review the archived discussions of the effort a few months ago to institute an IG for the judiciary branch; yet, the IG in many branches might be a microcosm of the bureaucracies' efforts to remain separate and distinct, yet to be responsive to well tempered oversight in compliance with constitutional mandates.
 

>Because Sulla gave back power, he does not fit the traditional definition of a dictator.

"The traditional definition of a dictator" -- what's that? Oh, you mean your absurd definition. I guess the OED will have to change the definition since the word itself comes from the 'office' which Sulla himself held in the Roman Republic.

1. A ruler or governor whose word is law; an absolute ruler of a state.

a. orig. The appellation of a chief magistrate invested with absolute authority, elected in seasons of emergency by the Romans, and by other Italian states.

b. A person exercising similar authority in a mediæval or modern state; esp. one who attains to such a position in a republic.

I don't see anything in there about "not giving back power" and Sulla proving the rule. Hmmm. Amazingly enough, Bart is trying to argue that Sulla, one of the worst dictators of the Roman Republic, who paved the way for Caesar and the downfall of the republic, wasn't a dictator at all -- even though that was his official title. Wow.

>>He is the proverbial exception which proves the rule.

I thought he didn't count at all because he wasn't a Caesar and you were only talking about Caesars? What happened?

I think you ought to stop digging the hole you are in.
 

arne:

(holding that the President may set the rules for military captures until Congress acts pursuant to its enumerated Article I power to set rules for Captures).

You are correct. The Court simply noted the prior precedent that the President may set the rules for military captures without actually ruling on the issue in this case.

I would amend the above statement to say (holding that the Article I power to set rules for Captures grants Congress the power to replace the President's rules with its own).

BTW, the formation of and rules for military commissions are "rules for Captures."
 

Bart: To start, you neglected to include the Hamdan case cite I used as authority for the second clause of the sentence.

The proposition for which I cited Curtiss-Wright was: The President is the 'sole organ' of and makes the decisions on behalf of the nation concerning foreign policy...


So please cite the language of the Curtiss-Wright dicta that says the President "makes the decisions on behalf of the nation concerning foreign policy."

And while you are at it, please cite the language of Hamdan to which you refer. I don't recall that case making any assertions of presidential supremacy over congressional action. To the contrary, I recall that proposition being examined, and dismissed, in Footnote 23:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Bart: Are you claiming that Curtiss-Wright as well as the several subsequent Court cases citing Curtiss-Wright as authority do not stand for this general proposition?

The subsequent cases speak for themselves, within their express and specific domains. The mere fact that some opinions cite the Curtiss-Wright dicta does not mean that they cite them for the purpose you assume. I certainly do not see that their holdings cumulatively add up to that general proposition. Obviously, you think so, but that is your own inference. Once again, as is your habit, in your first comment in this thread you assume your own conclusion. That logical fallacy is bad enough. That you attribute it the conclusion to Curtiss-Wright and Hamdan is intellectually dishonest. You are free to argue an inference as such; you are not free to state that the opinions actually reach your conclusion when they do not.

Bart: Would you care to quote the passage of the Jackson concurrence in Youngstown which you claim "dispos[ed] of the Curtiss-Wright dicta?

What Jackson disposed of is the conflation of very different situations. Footnote 2: It is in this class of cases that we find the broadest recent statements of presidential power, including those relied on here. United States v. Curtiss-Wright Corp., 299 U.S. 304, involved not the question of the President's power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. ...

Jackson's concurrence, forming the foundation of the framework for analyzing constitutional war-powers ever since, expressly made the distinction among cases where presidents act in accord with congressional action (as in the actual facts of the case decided in Curtiss-Wright), the middle area where Congress has not acted at all (as in the situation explored by the Curtiss-Wright dicta's hypothetical), and the very different situation where Congress has acted and a president violates that statutory policy.

Unlike the Curtiss-Wright dicta, that tripartite Youngstown framework has been expressly adopted by subsequent caselaw -- primarily Dames & Moore, which refined it as more of a continuum -- as the preeminent and general framework for analyzing the division of constitutional war-powers. Every justice sitting today embraces it.
 

porter:

How many of the hundreds of dictators over history do you recall giving back power to a republic or a democracy?

I can think of Sulla and Pinochet off the top of my head.

As I posted, an exception which proves the rule.
 

Bart,

Sulla and Cincinnatus were dictators (classic definition). One served the state and office quickly and efficiently, the other created a bloodbath until he resigned. I don't think the relinquishing of power determines the (true) dictator, it's the use of that power that is a more telling indicator.
 

Fallows [from the post]:

According to the constitutional chain of command, those two men literally have the power to order a strike that would be disastrous for their nation. The Congress has no official way to prevent them from doing so — it is interesting, and alarming, to think that in practice the safety valve might be the professional military, trained to revere the chain of command but faced with what its members would recognize as ruinous instructions....

I think Kubrick did a movie on this: "DSOHILTSWALTB"

"You can't fight in here! This is the war room...."

Cheers,
 

"Bart" DePalma trots out a new logical fallacy for him:

Because Sulla gave back power, he does not fit the traditional definition of a dictator. He is the proverbial exception which proves the rule.

The classic "No true Scotsman" fallacy.

Congratulations, "Bart", you're branching out and seeking new material.

Cheers,
 

Bart,

>>As I posted, an exception which proves the rule.

Cincinnatus is another rule-proving exception, I'm sure.

Bart's MO:

- Create an alternate (as in "inaccurate" and "absurdly narrow and tailored to some point in Bart's head") definition of a word.

- When someone points out the patent falsity of the definition, claim it is just an "exception that proves the rule."

Well, it worked in junior high debate class.

But unfortunately for Bart, most rational people would accept the OED's definition of a word over his convoluted and ever-changing definition.
 

JaO said...

Bart: To start, you neglected to include the Hamdan case cite I used as authority for the second clause of the sentence.

The proposition for which I cited Curtiss-Wright was: The President is the 'sole organ' of and makes the decisions on behalf of the nation concerning foreign policy...

So please cite the language of the Curtiss-Wright dicta that says the President "makes the decisions on behalf of the nation concerning foreign policy."


OK, here it is:

As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history ( February 15, 1816), reported to the Senate, among other things, as follows:

'The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution.


Did you miss this?

JAO: And while you are at it, please cite the language of Hamdan to which you refer. I don't recall that case making any assertions of presidential supremacy over congressional action.

For the second time, you are misrepresenting what I said to create a strawman.

I cited to Hamdan for the following proposition: ...except where Article I provides a specific enumerated foreign power to Congress.

Next...

JAO: To the contrary, I recall that proposition being examined, and dismissed, in Footnote 23:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.


Footnote 23 echoes my proposition above.

Bart: Are you claiming that Curtiss-Wright as well as the several subsequent Court cases citing Curtiss-Wright as authority do not stand for this general proposition?

The subsequent cases speak for themselves, within their express and specific domains. The mere fact that some opinions cite the Curtiss-Wright dicta does not mean that they cite them for the purpose you assume. I certainly do not see that their holdings cumulatively add up to that general proposition.


You are tap dancing now. Some reminders from the Fisher treatise of what subsequent courts said:

In a military tribunal case decided in 1948, Justice William O. Douglas said in a concurrence: “The President is the sole organ of the United States in the field of foreign relations. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 318-321...

The exclusion of aliens is a fundamental act of
sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U.S. 304; Fong Yue Ting v. United States, 149 U.S. 698, 713..

In another military tribunal case, decided in 1950, the Court discussed legal challenges being
brought against the “conduct of diplomatic and foreign affairs, for which the President is exclusively responsible. United States v. Curtiss-Wright Corp., 299 U.S. 304..

Several Justices in the Pentagon Papers Case in 1971 made reference to Curtiss-Wright. In a concurrence, joined by Justice Byron White, Justice Potter Stewart described the President’s power in national defense and international affairs as “largely unchecked by the Legislative and Judicial branches.”...A concurrence by Justice Thurgood Marshall recognized that Curtiss-Wright gives the President “broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander in Chief.”...A dissent by Justice John Harlan quoted John Marshall’s speech in 1800 (“The President is the sole organ of the nation in its external relations, and its sole representation with foreign nations”) and remarked: “From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this description of the scope of executive power.”


The Court has been pretty clear over the years as to its view of the scope of executive power over foreign policy, even in cases like the Pentagon Papers in which they were hardly backing the power of the Executive.

Bart: Would you care to quote the passage of the Jackson concurrence in Youngstown which you claim "dispos[ed] of the Curtiss-Wright dicta?

What Jackson disposed of is the conflation of very different situations. Footnote 2: It is in this class of cases that we find the broadest recent statements of presidential power, including those relied on here. United States v. Curtiss-Wright Corp., 299 U.S. 304, involved not the question of the President's power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. ...


Nothing I posted about Curtiss-Wright conflicts with Justice Jackson's observation and this observation does not "discard" Curtiss-Wright.

Unlike the Curtiss-Wright dicta, that tripartite Youngstown framework has been expressly adopted by subsequent caselaw -- primarily Dames & Moore, which refined it as more of a continuum -- as the preeminent and general framework for analyzing the division of constitutional war-powers. Every justice sitting today embraces it.

All the Youngstown/Dames/Hamdan string of cases stand for is that express enumerated powers of Article I trump the President's general power over foreign policy under Article II. This is exactly what I stated in my original post.
 

I would concede Bart about half a point in his debate with Porter. The Yoo/Addington theory of innate executive power has always been that this is an elective dictatorship, and that no constraints are necessary on the President's power other than contested elections every four years. This post today and countless others in the past have made amply clear why periodic elections are not a sufficient constraint on Presidential power, and why we need those old-fashioned checks and balances.

Still, contests elections every four years (and term limits) do impose some constraints on the President.

The obvious example is Mexico. Until recently the President of Mexico was, in effect, a dictator brought to power by thoroughtly rigged elections. But the Mexican President did have to step down after six years. I would say the example of Mexico amply proves both (1) term limited dictators cannot be as tyrannical as dictators for life and (2) liberty nonetheless suffers under even a temporary dictator.

(It would be totally off topic to discuss how the Rove propaganda machine attempted to turn the US into a Mexican-style one-party state to go with the Yoo/Addington elective dictatorship).
 

"Bart" DePalma said:

You are correct....

And the corollary to this is?

... The Court simply noted the prior precedent that the President may set the rules for military captures without actually ruling on the issue in this case.

Nope. As I pointed out (also correctly), the only mention of "captures" in Hamdan is the sentence I quoted, which happens to say that this is a Congressional prerogative.

May I point out that Chase's language from ex parte Milligan was a concurrence, and thus any dicta wasn't even from a majority opinion (getting only the agreement of four justices)? And may I point out that Chase's language on "controlling necessity" had to do with tribunals (i.e., military commissions) and not captures?

Here's the whole quote:

The power to make the necessary laws is in Congress, the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature."

Cheers,
 

"Bart" DePalma says:

I would amend the above statement to say (holding that the Article I power to set rules for Captures grants Congress the power to replace the President's rules with its own).

You can "amend" the court's statements to say anything you want, including that the moon is made of bleu cheese, but until you're on the court and command a majority thereof, they never said it. Your "amend[ations]" are your own ipse dixit pronouncements, and to pretend that they are the statements (much less "holding[s]") of the court is dishonest.

Cheers,
 

"Bart" DePalma [to porter]:

How many of the hundreds of dictators over history do you recall giving back power to a republic or a democracy?

I can think of Sulla and Pinochet off the top of my head.


OK. So they were dictators. They gave power back. Obviously not the sine qua non of dictatorship, much less the sole characteristic. Thank you for clearing that up.

Cheers,
 

Bart: Did you miss this?

No, of course I read that. As did Dr. Fisher, who showed that the context of the "sole organ" quote from Marshall in the House debate involved merely the execution of a treaty. However, I looked in vain for any explicit language in the dicta that said that means the president "makes the decisions on behalf of the nation concerning foreign policy." Those interpretive words are your own, not those of Marshall or Justice Sutherland.

I also had read the material you added to the effect that presidents have broad foreign-affairs powers, with which I do not argue but say, so what?. These quotes do not say at all that such presidential powers can override Congress once it has acted.

Bart: Footnote 23 [of Hamdan] echoes my proposition above.

False. Your proposition above said presidents make all decisions "except where Article I provides a specific enumerated foreign power to Congress." The Hamdan footnote includes no such restriction. It speaks only of Congress' "own war powers." The narrow interpretation about "specific enumerated foreign power" is your own embellishment. Once again, you are free to argue this proposition somehow, but it is simply dishonest to attribute the conclusion to the Hamdan opinion.

Bart: All the Youngstown/Dames/Hamdan string of cases stand for is that express enumerated powers of Article I trump the President's general power over foreign policy under Article II. This is exactly what I stated in my original post.

False. Once again, that is just your own argument. Please show where those cases limit Congress to "express enumerated powers of Article I." Having failed to support your original assertion that such narrow language was contained in Curtiss-Wright, you now shift ground as assert (without foundation) that it is contained somewhere in other cases.

In fact, Congress has not only its express enumerated powers, but also those of the Necessary and Proper Clause, upon which the 1973 War Powers Resolution was expressly founded.
 

"Bart" DePalma says:

[Jao]: So please cite the language of the Curtiss-Wright dicta that says the President "makes the decisions on behalf of the nation concerning foreign policy."

["Bart"]: OK, here it is:

As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history ( February 15, 1816), reported to the Senate, among other things, as follows:

'The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution.


OK. So "foreign policy" is "external relations", "representat[ion]", and "negotiations". Now that we've got those semantics settled, what was your point again?

Cheers,
 

"Bart" DePalma says:

[JAO]: And while you are at it, please cite the language of Hamdan to which you refer. I don't recall that case making any assertions of presidential supremacy over congressional action.

["Bart"]: For the second time, you are misrepresenting what I said to create a strawman.

I cited to Hamdan for the following proposition: ...except where Article I provides a specific enumerated foreign power to Congress.


Ummm, no. But even marching for the new goal posts you've put up, I'd note that "enumerated" shows up nowhere in the Hamdan decision (and once in Thomas's dissent, but not in that context). Perhaps they didn't use those exact words, but you should cite to the language that you think supports your -- ummmm, "interpretation" -- here. That's what JaO was asking for.

Cheers,
 

JaO said...

Bart: Footnote 23 [of Hamdan] echoes my proposition above.

False. Your proposition above said presidents make all decisions "except where Article I provides a specific enumerated foreign power to Congress." The Hamdan footnote includes no such restriction. It speaks only of Congress' "own war powers." The narrow interpretation about "specific enumerated foreign power" is your own embellishment. Once again, you are free to argue this proposition somehow, but it is simply dishonest to attribute the conclusion to the Hamdan opinion.


Hamdan is a perfect example of my description of the division of powers between the President and Congress. The President had set rules for military tribunals to try alien enemy combatants. The Hamdan court cited multiple enumerated provisions of Article I which granted Congress authority to enact rules for these Captures through the UCMJ which trumped the rules the President enacted pursuant to his general CiC power. These are the congressional war powers to which the Court was referring.

While you are free to keep insisting that Congress has a broader authority which is not mentioned anywhere in Article I, you have to prove its existence before I will grant it any credence at all.

Bart: All the Youngstown/Dames/Hamdan string of cases stand for is that express enumerated powers of Article I trump the President's general power over foreign policy under Article II. This is exactly what I stated in my original post.

False...In fact, Congress has not only its express enumerated powers, but also those of the Necessary and Proper Clause, upon which the 1973 War Powers Resolution was expressly founded.


I note that you cannot cite to Youngstown, Dames, Hamdan nor any other case to support this claim.

The Necessary and Proper Clause states that Congress has the power: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Art. I, Sec. 8(18). (Emphasis added).

The Necessary and Proper Clause is merely an enabling statute authorizing Congress to enact legislation which carry into execution other powers granted under the Constitution. This provision does not grant to Congress any additional substantive powers and certainly does not empower Congress to enact any substantive legislation which it thinks is "necessary and proper."

Therefore, you still have to identify an enumerated "war power" of Congress in Article I in order enact legislation under the N&P Clause.unconstitutional
 

Bart: The Necessary and Proper Clause is merely an enabling statute authorizing Congress to enact legislation which carry into execution other powers granted under the Constitution.

Ah, you resurface that disinformation, on which you have been shown to be wrong in other contexts.

The fact is that the narrow view of the N&P clause that you articulate was precisely the losing argument advanced by the state of Maryland in McCulloch v Maryland. 17 US 316 (1819). That view was explicitly considered and rejected by Chief Justice Marshall writing for the unanimous court when it established the doctrine of implied powers in that landmark case. See particularly pp 412-421, beginning, "The counsel for the State of Maryland ..."

Whenever you have been called on this gross misstatement of law, you have failed to respond but slunk off, only to restate the Big Lie later in some other thread some other time. Never mind that it would get you a failing grade on any basic con law exam. It makes good propaganda, so it continues to serve your purpose here.

Theoretically, one could argue that the McCulloch court got it wrong. But that would necessitate overturning huge chunks of law that have been founded upon it for the past 188 years. If ever there was a "super-duper precedent," this is one.

BTW, I am still waiting for you to explain your own theory of which "express, enumerated power" of Congress allows it to enact all those portions of the U.S. criminal code criminalizing and penalizing acts that happen not to be among the handful listed in the Constitution, such as piracy. Since you profess to be smarter than Marshall, please enlighten us.
 

Tangentially related to this post, the GOP today essentially filibustered the Dem Senate resolution wagging its disapproving finger at the President's "surge" in Iraq.

Instead, the GOP has maneuvered the debate to a more popular measure mildly criticizing the President's surge, but adding that the Senate will not cut off funding for the troops in the field. The GOP is attempting to lure the Dems into getting on record opposing a fund cut off which can be waved in their faces if they should attempt to defund the war in the future. The Dems know what the GOP is pulling and they may have to scuttle this entire sorry enterprise in order to avoid agreeing not to defund the war.

How much time was wasted on this nonsense?
 

"Bart" DePalma said:

Hamdan is a perfect example of my description of the division of powers between the President and Congress. The President had set rules for military tribunals to try alien enemy combatants.

The Hamdan court basically said, "we don't need to look at what might pertain if the president had set rules for tribunals in the absence of Cnogressional action, because Congress did act." And they said the Deciderator-In-Chief exceeded his authority and acted contrary to Congress (and thus to the Constitution).

Cheers,
 

JaO said...

Bart: The Necessary and Proper Clause is merely an enabling statute authorizing Congress to enact legislation which carry into execution other powers granted under the Constitution.

Ah, you resurface that disinformation, on which you have been shown to be wrong in other contexts.


Unlike most posters here, Professor Lederman was kind enough to provide some actual case law for the proposition he was arguing in the linked post over at the Volkh conspiracy. In turn, I took a couple hours to address Professor Lederman's arguments at some length, including quoting from Blackstone's commentaries on the N&P Clause. I invite interested persons to check out the linked discussion.

The fact is that the narrow view of the N&P clause that you articulate was precisely the losing argument advanced by the state of Maryland in McCulloch v Maryland. 17 US 316 (1819).

That is incorrect. The McCulloch court merely held that Congress had the authority under the N&P Clause to create a national bank in order to exercise its powers under the Taxing and Spending Clause. While the Court is willing to grant Congress a fairly wide leash in enacting legislation pursuant to the N&P Clause, Congress still must be exercising one of its enumerated Article I powers. McCullough does not stand for the proposition that the N&P Clause is an independent source of power enabling Congress to enact any legislation it considers "necessary and proper."

Whenever you have been called on this gross misstatement of law, you have failed to respond but slunk off, only to restate the Big Lie later in some other thread some other time. Never mind that it would get you a failing grade on any basic con law exam. It makes good propaganda, so it continues to serve your purpose here.

I aced my Con Law exams despite having two ACLU member professors who disagreed with many of my positions because I backed up my arguments with the actual law. Instead of descending into the above name calling, I invite you to provide me with actual case law which holds that Congress may enact foreign policy legislation which exceeds its enumerated Article I powers.

Don't get mad, get even by proving your case. When you have done so in the past, I have conceded some of your points. Try it again.

BTW, I am still waiting for you to explain your own theory of which "express, enumerated power" of Congress allows it to enact all those portions of the U.S. criminal code criminalizing and penalizing acts that happen not to be among the handful listed in the Constitution, such as piracy.

Off hand, I have no idea. Do your own research for once and find out under what authority Congress thought it was acting when it enacted those laws and we can discuss it.
 

"Bart" DePalma misstates the sequence of events:

The Hamdan court cited multiple enumerated provisions of Article I which granted Congress authority to enact rules for these Captures through the UCMJ which trumped the rules the President enacted pursuant to his general CiC power.

Dubya's "rules" weren't trumped by Congressional action. Instead, Congress passed the rules, and Dubya violated them. That's why he lost.

Cheers,
 

"Bart" DePalma says:

I aced my Con Law exams despite having two ACLU member professors who disagreed with many of my positions because I backed up my arguments with the actual law.

Did you miscite Brown II to them as well? How about insisting that the majority in the Pentagon Papers case "held" that the N.Y. Times could be prosecuted post-publication? Just curious....

Cheers,
 

Bart,

I have cited the section of McCulloch v Maryland that specifically rejected the argument framed by Tucker's 1803 commentary in Blackstone that you cited to Marty Lederman.

It is elementary that the 1819 landmark case trumps the 1803 treatise.

I will leave it to readers to follow the links and confirm that your arguments (and Tucker's) are substantially identical to those rejected in McCulloch. I fully expect that you will repeat your denial, knowing that many readers will not do so.

Bart: I invite you to provide me with actual case law which holds that Congress may enact foreign policy legislation which exceeds its enumerated Article I powers.

And I, once again, invite you to provide actual case law to the contrary. You are the one who made the original assertion, and you continue to cite only yourself as the authority for the key "enumerated" piece of your assertion. The burden belongs to you.

Me: BTW, I am still waiting for you to explain your own theory of which "express, enumerated power" of Congress allows it to enact all those portions of the U.S. criminal code criminalizing and penalizing acts that happen not to be among the handful listed in the Constitution, such as piracy.

Bart: Off hand, I have no idea. Do your own research for once and find out under what authority Congress thought it was acting when it enacted those laws and we can discuss it.

It's all right there in McCulloch v Maryland. Marshall reasoned, as an analogous example, that the N&P Clause authorized the federal penal code, even though no enumerated power supported it.
 

Bart,

I admit to being badly out of my depth here, but let me make one observation. You claim to be a libertarian and a strict textualist in interpeting the Consitution. But you are inconsistent about it. You hold Congress to its narrow and specific powers enumerated in Article I. Yet you see a whole host of executive powers implied in Article II that are not so much as hinted at. And, adding insult to injury, you interpet the very fact that these implied powers are never so much as mentioned (either in Article I or Article II) to mean that they are by definition unlimited executive powers beyond the power of Congress to regulate.

This is not only questionable textualism, I don't see how it can be taken as libertarian. Libertarians express a wish to cut back powers of government as a whole. If they emphasize reducing the powers of Congress, it is because they share the general assumption that federal power is Congressional power.

You want to cut back the powers of Congress to the Constitutional minimum while leaving the executive all sorts unmentioned and unrestricted powers. Do you really believe that threats to liberty come only from invasive legislation and not from an out-of-control executive?
 

Bart,

In your original comment above, you conceded, "Nor may the President constitutionally start wars on his own. Article I expressly grants to Congress the power to declare war, which Congress exercised in enacting AUMFs for both the wars against al Qaeda and Iraq."

Yet this is yet another example of a valid use of the Necessary and Proper Clause. The express, enumerated powers in the Constitution include declarations of war, but not their close cousins such as the AUMFs. I agree that for most purposes, the authorities that can be crafted in declarations can also be crafted within such AUMFs, but there is still a distinction.

The two AUMFs you mention are themselves expressly based upon the 1973 War Powers Resolution. It recognizes both forms of war authorizations, as well as national emergencies stemming from an attack. The 1973 legislation, in turn, itself is expressly based on the N&P Clause. See Sec. 2(b):

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
 

JaO said...

Bart: I invite you to provide me with actual case law which holds that Congress may enact foreign policy legislation which exceeds its enumerated Article I powers.

And I, once again, invite you to provide actual case law to the contrary. You are the one who made the original assertion, and you continue to cite only yourself as the authority for the key "enumerated" piece of your assertion. The burden belongs to you.


Nice tap dancing trying to weasel out of proving your case. I have presented the case law which backs up my position on the relative distribution of powers between the Congress and the President.

In turn, you claim that Congress enjoys powers beyond those actually enumerated in Article I. However, neither McCulloch, Youngstown, Hamden nor any other case you have cited supports that proposition. It is not my job to prove the negative to your assertion. Offer your case law or admit that your position has no current legal authority.

Me: BTW, I am still waiting for you to explain your own theory of which "express, enumerated power" of Congress allows it to enact all those portions of the U.S. criminal code criminalizing and penalizing acts that happen not to be among the handful listed in the Constitution, such as piracy.

Bart: Off hand, I have no idea. Do your own research for once and find out under what authority Congress thought it was acting when it enacted those laws and we can discuss it.

It's all right there in McCulloch v Maryland. Marshall reasoned, as an analogous example, that the N&P Clause authorized the federal penal code, even though no enumerated power supported it.


Dicta.

Once again, do your research and determine on what grounds Congress actually enacted the various provisions of the federal criminal code. The McCulloch musings before there was a federal criminal code of any scope do not count.

Congress can enact laws pursuant to the N&P Clause to enable the exercise of any power by any of the branches. If I had to guess the actual powers which could form the basis of the statutes in the federal criminal code (and I am not doing your work for you), Article I, sec 8 provisions which could apply include:

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

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States...

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures...

To provide for the punishment of counterfeiting the securities and current coin of the United States...

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations...

Article II, sec. 2 refers to "offenses against the United States."

Article III, sec. 2 refers to controversies between citizens of different states.

This survey of possibilities took all of 10 minutes reviewing the Constitution.

Now, get to work and find out the powers Constitution the Congress actually invoked to enact the various parts of the criminal code. This is your argument, make it.
 

Bart,

Chief Justice Marshall did not say the N&P Clause was entirely disconnected from the other provisions of the Constitution.

Rather, his dicta pointed out, no enumerated power expressly authorized penal powers to punish anything, and no crimes other than a handful were itemized. In other words, the penal power was implied.

You found no enumerated power, just various scraps of language from which the authority in question may be implied through the N&P Clause.

So your "research" demonstrates my point. Thanks.

Now, to see that Marshall had more in mind than just banks (or even just declarations of war) when he expouned the N&P doctrine, we can find the language in McCulloch: ". . . Although, among the enumerated powers of government, we do not find the word "bank" or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies . . . But it may with great reason be contended, that a government, entrusted with such ample powers . . . must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. . . . " (My emphasis)
 

JaO said...

Bart, In your original comment above, you conceded, "Nor may the President constitutionally start wars on his own. Article I expressly grants to Congress the power to declare war, which Congress exercised in enacting AUMFs for both the wars against al Qaeda and Iraq."

Yet this is yet another example of a valid use of the Necessary and Proper Clause. The express, enumerated powers in the Constitution include declarations of war, but not their close cousins such as the AUMFs.


We have discussed this before and we will have to agree to disagree. A declaration of war and an AUMF are both the same thing - Congress' authorization for the Executive to go to war. The Article I provision which grants Congress the power to declare war authorizes the AUMFs.

The two AUMFs you mention are themselves expressly based upon the 1973 War Powers Resolution.

Congress cannot provide itself with powers in excess of those provided for in Article I by enacting a statute and then citing to it. You have to look in the Constitution for Congress' authority to authorize war. There is only one provision which grants Congress that power.

The 1973 legislation, in turn, itself is expressly based on the N&P Clause. See Sec. 2(b):

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.


Have you read this statement? If so, why did you cite this statement to make your argument concerning the N&P Clause?

Congress made an accurate statement of the law which contradicts your claim that the N&P Clause is a substantive provision which grants Congress the power to enact statutes which it feels are "necessary and proper."

Good night. This was fun, but I have a touch of the flu and am off to bed.
 

Bart: ... your claim that the N&P Clause is a substantive provision which grants Congress the power to enact statutes which it feels are "necessary and proper."

That strawman formulation has never been my claim, although you keep repeating it.

Rather, I would put the definition this way, as Marshall did:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
 

Bart,

p.s. I am glad you finally read the second half of the N&P Clause, which expressly applies in addition to "the foregoing powers" enumerated in Article I, Sec. 8, and encompasses the authority to legislate with regard to "the government of the United States, or in any department or officer thereof."

Most definitely, that includes war powers, including the "conduct" of war, according to Marshall's McCulloch opinion.

So you, I and Congress are finally in accord: The N&P Clause authorizes the legislature to act in this area, even outside the express enumerated war powers of Congress.

It has been a long journey, but you finally arrived at the correct conclusion!
 

JaO said...

Bart: ... your claim that the N&P Clause is a substantive provision which grants Congress the power to enact statutes which it feels are "necessary and proper."

That strawman formulation has never been my claim, although you keep repeating it. Rather, I would put the definition this way, as Marshall did:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.


This flowery passage does not really provide clarity as to your position.

Do you believe, as you keep implying, that the N&P Clause provides Congress with a substantive power to enact legislation beyond the exercise of the preceding powers enumerated by Article I?

p.s. I am glad you finally read the second half of the N&P Clause, which expressly applies in addition to "the foregoing powers" enumerated in Article I, Sec. 8, and encompasses the authority to legislate with regard to "the government of the United States, or in any department or officer thereof."

Most definitely, that includes war powers, including the "conduct" of war, according to Marshall's McCulloch opinion.


This was never the issue. My point was that Congress may enact legislation to enforce its enumerated Article I powers. In contrast, you claim that Congress may exercise further unenumerated powers. McCulloch's holding does not support your premise.

So you, I and Congress are finally in accord: The N&P Clause authorizes the legislature to act in this area, even outside the express enumerated war powers of Congress.

Hardly.

It is true that the N&P Clause is an enabling provision which allows Congress to enact legislation permitting the other branches to exercise their powers. For example, there can be no military for the executive to command until the Congress enacts legislation to create the units and the passes a spending bill to supply those units.

However, nothing about the N&P Clause permits Congress to assume the power of the other two branches. Congress may no more enact legislation to assume the President's CiC powers than it may enact legislation to hear cases in controversy.

As Marshall observed above, Congress may not enact legislation outside the scope of or that which is prohibited by the Constitution. Assuming the powers of the other two branches exceeds Marshall's definition.
 

Chief Justice Marshall in McCulloch v Maryland: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

Bart: This flowery passage does not really provide clarity as to your position.

Do you believe, as you keep implying, that the N&P Clause provides Congress with a substantive power to enact legislation beyond the exercise of the preceding powers enumerated by Article I?


That "flowery passage" you dismiss happens to be a hornbook holding of McCulloch v Maryland.

And yes, even by the plain language of the N&P Clause, it extends beyond the preceding ennumerated powers of Article I Section 8 to "all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

bart: It is true that the N&P Clause is an enabling provision which allows Congress to enact legislation permitting the other branches to exercise their powers.

You continue to insist, focusing on a narrow reading of the word "necessary," that the clause is merely "enabling" to effect specific other powers. Yet that narrow reading was precisely the losing argument that Maryland made in the 1819 landmark case. You base your theory on Tucker's 1803 treatise, the thrust of which which the court directly rejected. Having been confronted with that fact, you simply ignore it and repeat the sophomoric canard. That is a good propaganda technique; it is lousy law.

Bart: However, nothing about the N&P Clause permits Congress to assume the power of the other two branches. Congress may no more enact legislation to assume the President's CiC powers than it may enact legislation to hear cases in controversy.

Tautologically true. But you beg the question as to what the Commander in Chief power exclusively entails. If you seek to know what Congress cannot do with respect to the executive branch as McCulloch defined it, you will have to find the limits elsewhere, as in the CiC Clause itself. (The governing language of McCulloch includes powers "which are not prohibited.") So this is primarily an Article II question about whatever its exclusive scope is, not an Article I question.

As to your inquiry about "substantive" authority deriving from the N&P Clause, then the common-sense answer is obviously yes. For example, the powers to charter national banks or to define and punish offenses are nowhere enumerated, but are certainly covered by the clause, and most anyone would call those powers "substantive." Much of our law and government has been built on this foundation for the past 188 years.

Bart: In contrast, you claim that Congress may exercise further unenumerated powers. McCulloch's holding does not support your premise.

Yes, I absolutely assert that Congress may excercise implied powers that are not expressly enumerated. And McCulloch supports that premise fully, your deep denial notwithstanding. (Your "research" exercise above with respect to the penal powers made that point by demonstration, handily confirming Marshall's reasoning.)

Circling back to your original point, the holding of McCulloch v Maryland is certainly broader than your assertion (still on no authority other than yourself) that Congress is limited to expressly enumerated powers. And you never did show what you claimed falsely -- that Curtiss-Wright and Hamdan themselves limit Congress to "enumerated" war powers. You could not show that because it is not true.
 

JaO said...

As to your inquiry about "substantive" authority deriving from the N&P Clause, then the common-sense answer is obviously yes. For example, the powers to charter national banks or to define and punish offenses are nowhere enumerated, but are certainly covered by the clause, and most anyone would call those powers "substantive." Much of our law and government has been built on this foundation for the past 188 years...

Yes, I absolutely assert that Congress may excercise implied powers that are not expressly enumerated. And McCulloch supports that premise fully, your deep denial notwithstanding.


You are mistaking the basis of Congress' powers with the scope of those powers.

McCulloch held that the N&P Clause provided Congress with the implied power to enact legislation which is not expressly provided for in the Constitution, but which is necessary and proper for the exercise of is enumerated powers. In this case, McCulloch held that the N&P Clause provided Congress with the implied power to create a national bank, even though such an institution is not expressly mentioned in the Constitution, in order to exercise its enumerated taxing and spending powers.

Thus, McCulloch does not stand for the proposition that the N&P Clause provides Congress with an independent substantive power to create a national bank. Rather, McCulloch broadly interpreted the enabling function of the N&P Clause to allow Congress wide latitude to enact legislation necessary to the exercise of its enumerated taxing and spending powers.

But you beg the question as to what the Commander in Chief power exclusively entails. If you seek to know what Congress cannot do with respect to the executive branch as McCulloch defined it, you will have to find the limits elsewhere, as in the CiC Clause itself. (The governing language of McCulloch includes powers "which are not prohibited.") So this is primarily an Article II question about whatever its exclusive scope is, not an Article I question.

Quite to the contrary. The constitutionality of legislation in the foreign policy or military areas is completely a matter of interpreting Article I.

My position (and I believe that of the courts to which I have cited and quoted) is that the President may exercise every foreign policy and military power not enumerated and reserved for Congress in Article I. In essence, the executive and CiC provisions in Article II are broad default provisions.

Therefore, determining whether Congress is acting constitutionally when it legislates in the foreign policy and military areas requires determining whether Article I reserves the power to Congress.

And you never did show what you claimed falsely -- that Curtiss-Wright and Hamdan themselves limit Congress to "enumerated" war powers. You could not show that because it is not true.

Curtiss-Wright and the several subsequent cases which cite to its dicta all considered the President to be the "sole organ" of foreign policy and military matters with broad and plenary authority in these areas.

Hamdan (along with Youngstown and Dames) held that the President's broad foreign policy and military powers are limited by the Article I powers of Congress, which the Hamdan court expressly listed as authority for its holding.

Thus, in practice, the Courts have routinely followed the division of powers which I described at the beginning of this thread. In contrast, none of the cases to which you or I cited during this lengthy thread hold that Congress has unenumerated powers over foreign policy or the military. No amount of tap dancing and changing the subject on your part will change that fact.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Bart: McCulloch held that the N&P Clause provided Congress with the implied power to enact legislation which is not expressly provided for in the Constitution, but which is necessary and proper for the exercise of is enumerated powers. In this case, McCulloch held that the N&P Clause provided Congress with the implied power to create a national bank, even though such an institution is not expressly mentioned in the Constitution, in order to exercise its enumerated taxing and spending powers.

Thanks for acknowledging, finally, that Congress has implied powers.

Some implied powers are a bigger stretch from a narrow reading of "necessary" than others, Marhsall showed. He reasoned as follows:

Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administration of justice. But Courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

By comparison, given the enumerated war powers that Congress indisputably possesses under Article I Section 8, the N&P clause carries a much lighter inferential burden in this area. It is readily apparent that the power to declare war, and raise and support armies, and make rules for the government and regulation of the armed forces support the N&P clause in enabling Congress to enact the War Powers Resolution, and to specify in war declarations or AUMFs the scope of the wars Congress authorizes. Similarly, the power of the purse entails the power to itemize and restrict the purpose of the spending, including military spending.

Thus Congress easily has robust war powers under the N&P clause, which in turn has relatively direct support in the enumerated powers -- much more direct than those domestic examples Marshall cited that are authorized by N&P, even though they are not strictly "necessary" for the effecting of any enumerated powers.

Bart: The constitutionality of legislation in the foreign policy or military areas is completely a matter of interpreting Article I.

My position (and I believe that of the courts to which I have cited and quoted) is that the President may exercise every foreign policy and military power not enumerated and reserved for Congress in Article I. In essence, the executive and CiC provisions in Article II are broad default provisions.


This argument preposterously contradicts itself immediately. You assert that it is "completely a matter of interpreting Article I," yet argue on the basis of Article II!

Whatever the merits of the Article II argument with respect to exclusive presidential power, those merits must be settled within the theory of the executive branch.

Your "position" depends entirely on whether particular Article II powers are themselves indefeasible, which is a very different proposition indeed.

Unfortunately, the only basis you have cited for that is the thin gruel of the "sole organ" dicta in Curtiss-Wright. Whatever that dicta means, it says nothing whatsoever about limiting Congress to "enumerated" war powers. (Nor did Youngstown. Nor did Hamdan. That part you have just made up.)

By the way, I must note the irony that the "sole organ" dicta rests entirely on a single quotation from John Marshall in the House of Representative in 1800 about executing treaties -- a quotation which Dr. Fisher showed was taken grossly out of context in Sutherland's 1936 Curtiss-Wright dicta.

It is that same John Marshall who became chief justice soon after. The very next year (18 years before McCulloch), he wrote in Talbot v. Seeman:

"The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry."

Interpreting Sutherland's dicta to imply that Marshall favored exclusive presidential control over war is risible. Your own assertion that Marshall, the man who authored the bedrock doctrine of implied congressional powers, believed that Congress has only "enumerated" war powers is nothing short of hilarious.
 

Whatever the merits of the Article II argument with respect to exclusive presidential power, those merits must be settled within the theory of the executive branch.

Of course (and, as you've already noted, subject to Congress as set forth in Art. I). In comparing Art. I with Art. II, it's also worth noting that Art. II conspicuously lacks a "necessary and proper" clause or any equivalent.
 

"Bart" DePalma says:

[Jao]: It's all right there in McCulloch v Maryland. Marshall reasoned, as an analogous example, that the N&P Clause authorized the federal penal code, even though no enumerated power supported it.

["Bart"]: Dicta.


If that's an argument (which it is), then this emanation:

["Bart"]: I have presented the case law which backs up my position on the relative distribution of powers between the Congress and the President.

can be easily dismissed with the single word: "Dicta".

One thing to be said for JaO, though: He hasn't repeatedly claimed (falsely) that dicta is a "holding", as you have in the Pentagon Papers case, "Bart".

I do like this quote from "Bart":

["Bart"]: "Hamdan (along with Youngstown and Dames) held that the President's broad foreign policy and military powers are limited..."

Let's take that quote and frame it.

Cheers,
 

Mark Field:

Of course (and, as you've already noted, subject to Congress as set forth in Art. I). In comparing Art. I with Art. II, it's also worth noting that Art. II conspicuously lacks a "necessary and proper" clause or any equivalent.

Oh, no. Beg pardon to differ. For that proposition, we have "Bart"'s ipse dixit and he aced his ConLaw classes (although perhaps a bit short in the desegregation area).

Cheers,
 

Bart is a troll. Trolls should be completely ignored at all times, if not banned. Here's why.

Their sole purpose is to waste our time while creating the false appearance that there are 2 equally valid points of view on any given topic. For every post that responds to the nonsense the troll posted, the troll wins, because we are discussing the troll's BS instead of the finer points that actually do merit discussion.

Notice how the troll basically causes the discussion to go round and round with no resolution? He just rehashes the same BS arguments over and over, no matter what the topic.

There is only one solution: stop responding to the troll altogether. Eventually he will go away, because he is then no longer achieving his objective, which is to derail the discussion by forcing us all to talk about the things he wants us to talk about.

The fact that a troll may be conversant with Blackstone and several constitutional doctrines does not make him any less a troll; in fact it just makes him a smarter and more disruptive troll; all the more important to resist the temptation to out-reason him; all the more reason not to take the bait he offers up on a daily basis. It is a mistake to think that every contrary point of view is a good-faith attempt at civil discourse.

Every time troll generates a reply, the troll wins and we lose.

Please. Stop feeding the trolls.
 

No, please... feed the troll! I'm getting a wonderful explication of the controling cases in this matter (particularly Curtiss-Wright, which has given me some recent headaches) as well as some great ammunition for my ConLaw class. Remember: every time you smack a troll, a law student gets a point on their exam.
 

Enlightened Layperson write:"I would concede Bart about half a point in his debate with Porter. "

I wouldn't. Bart quite obviously fudged the definition of what a dictator is after being called out. Further, Bart is at odds with virtually every Roman historian on his assertion about Sulla.

Sulla killed 1500 political opponents and their associates, all of whom he declared enemies of the state, in a bloodbath lasting months. Anyone helping an enemy of the state automatically became an enemy of the state. Many thousands more were jailed and/or executed with no real basis other than that Sulla didn't like them. Only his allies had a chance of surviving, and then only on condition of loyalty.

Besides, that, Sulla's actual title was 'Dictator of Rome'.

So while he makes a valid note that Sulla didn't act, in some respects, like many contemporary dictators, trying to change the definition of what a dictator is to suit his argument in contradiction to the actual facts clouds his observations about Sulla, and his about dictators in general.
 

Mark Field said...

In comparing Art. I with Art. II, it's also worth noting that Art. II conspicuously lacks a "necessary and proper" clause or any equivalent.

Why is this significant? Why would an executive require a legislative enabling provision?
 

Mark Field:

In comparing Art. I with Art. II, it's also worth noting that Art. II conspicuously lacks a "necessary and proper" clause or any equivalent.

Bart's theory is that, unlike Article I, Article II contains all sorts of implied powers that are never so much as mentioned and that because they are never mentioned they are absolute and uncontrollable in the executive.
 

Trolls should be completely ignored at all times, if not banned.

I generally agree with this. However, I will say that JaO has done a wonderful job of explaining basic Constitutional doctrine and that a good many readers can find value in his posts.
 

unlike Article I, Article II contains all sorts of implied powers that are never so much as mentioned and that because they are never mentioned they are absolute and uncontrollable in the executive.

At the risk of saying the obvious, let me answer this by starting from the ground up.

The basic idea of the Constitution was that the powers given to the federal government would be defined and limited. Here, for example, is Madison in Federalist 45: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

The N&P clause does not, strictly speaking, expand the powers delegated to the federal government; those powers remain as defined. What the N&P clause does, as JaO has detailed, is give Congress a very broad discretion in the means it uses to carry out the powers granted.

The President is granted certain defined powers in Art. II, but there is no N&P clause. The obvious conclusion is that the President does NOT have the wide discretion given to Congress to execute those powers. To the contrary, the language of Art. I -- "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" -- makes clear that Congress, not the President, can control the manner of executing the powers granted in Art. II. If that were not true, the President would have his own N&P clause.
 

Mark Field said...

The N&P clause does not, strictly speaking, expand the powers delegated to the federal government; those powers remain as defined. What the N&P clause does, as JaO has detailed, is give Congress a very broad discretion in the means it uses to carry out the powers granted.

Is JAO arguing this? My argument is that McCulloch granted Congress wide latitude in enacting legislation to carry out its enumerated powers. JAO disagreed. Here is what he posted after multiple attempts to nail him down on this issue:

Yes, I absolutely assert that Congress may excercise implied powers that are not expressly enumerated.

This reply does not say to me that: What the N&P clause does, as JaO has detailed, is give Congress a very broad discretion in the means it uses to carry out the powers granted.

Mark: The President is granted certain defined powers in Art. II, but there is no N&P clause. The obvious conclusion is that the President does NOT have the wide discretion given to Congress to execute those powers. To the contrary, the language of Art. I -- "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" -- makes clear that Congress, not the President, can control the manner of executing the powers granted in Art. II. If that were not true, the President would have his own N&P clause.

Huh? The reason the executive does not have a N&P Clause is because the President does not have the power to enact legislation. Why would the drafters include a legislative enabling provision in Article II?
 

It is worth reminding ourselves of the subject of JB's original post, and that Bart's peculiar theories are not what matter here. (Even the Bush administration does not forthrightly embrace such far-fetched constitutional theories. Paul Clement will not argue at 1 First Street that McCulloch v Maryland should be overturned or ignored.)

FWIW, in considering the Commander in Chief Clause, I do think it encompasses some authority that is indefeasible. The core of military command -- in the sense that the C in C functions as the top-ranking general or admiral -- does entail some things as a plenary power. But not everything that can be expressed as a "command" is immune from congressional impingement, because no commander can lawfully issue an illegal order.

So while some hypotheticals, or even a handful of actual precedents, are resolvable, there is no established bright line as to where the C in C authority ends. We have been taught that by authorities ranging from Robert Jackson to John Roberts. The reasonable view is that there is a tension between the branches, which has not been clearly resolved in all matters and probably never will be.

Some particular questions on the margin may be adjudicated -- as they have been in Hamdi and may yet be in the FISA controversy -- and many will be left to political means for their resolution. I suspect that the weighty matters of war and peace are in the latter category. The Constitution does not make it easy for one branch to impose its will on the other (as we saw demonstrated yesterday in the Senate). But it is still, in theory, possible.
 

"Bart" DePalma:

Is JAO arguing this? My argument is that McCulloch granted Congress wide latitude in enacting legislation to carry out its enumerated powers. JAO disagreed.

Where? Where did JaO disagree with this?

But, to do an end-run around all the "straw men" you're setting up here, and make a run for the original locus of the goal-posts:

Here's Jao: "So you, I and Congress are finally in accord: The N&P Clause authorizes the legislature to act in this area, even outside the express enumerated war powers of Congress."

At base is your elision of "enumerated powers" into "express, enumerated power[ to specifically enact a particular piece of legislation]" (or, your alternative "straw man" "specific enumerated powers" (which you use in simiar fashion).

You've agreed that the penal code is constitutional, even though a penal code (and for that matter, federal banks) are not "expressly" mentioned in Article I. I'd hoep you would accede the same WRT all of Title 10 of the U.S. Code (most of which isn't the UCMJ). With this, can we at least agree that your requirement for "specific" or "express" Article I authorisation for a particular piece of legislation is not necessary, as long as the legislation is concerned with one of the "enumerated powers" of Congress and is reasonably related to fulfillng that power? That's the typical formulation of the N&P clause. You may disagree with the ambit of such, but then it is your duty to show that the legislature has over-reached and is attempting an impermissible, "non-enumerated" power. That being said, there's plenty of support for the proposition that Congress can have (and has) quite significant powers in foreign and military affairs (see, e.g., most of Title 10, the WPA, immigration law, FTCA, regulatory authority over international air transport, marine law, TWEA ... and the NSA).

Cheers,
 

Arne Langsetmo said...

You've agreed that the penal code is constitutional, even though a penal code (and for that matter, federal banks) are not "expressly" mentioned in Article I...

arne, you are back to misrepresenting my posts again. I stated no such thing. I challenged JAO to give me specific examples of the code and the powers to which Congress claimed it was acting in order to enact those examples.

The federal criminal code is enormous and has several potential sources of power as I noted above. Therefore, making sweeping claims that the entire code is constitutional is simply nuts.

Given my textualist view that the commerce clause meant what it said and was not a license for Congress to enact whatever it pleases, I am sure to consider multiple sections of the criminal code based on the Commerce Clause to be unconstitutional as did the Court in the Lopez decision.

Finally, if you want me to respond to you, stop misrepresenting what I post. If not, I'll just go back to ignoring your posts.
 

"Bart" DePalma says:

[Arne]: You've agreed that the penal code is constitutional, even though a penal code (and for that matter, federal banks) are not "expressly" mentioned in Article I...

arne, you are back to misrepresenting my posts again. I stated no such thing. I challenged JAO to give me
specific examples of the code and the powers to which Congress claimed it was acting in order to enact those examples.

Ooooohh. Yah, you got me, "Bart". You're right, you didn't say any such thing. I do apologise, Mr. DePalma, and it was terrible of me to misrepresent you so.

Say, would it be OK if I just posted that you're of the considered opinion that the United States penal code is arguably unconstitutional and an over-reach on the part of Congress? That, while citing no case that has ever invalidated the penal code for such a transgression of Constitutional roles, you are of the opinion that it's ... well ... 'quite debatable'? That seems to be the only conclusion I can reach when you absurdly say that unless we can trot out the "specific examples of the code and the powers to which Congress claimed it was acting in order to enact those examples" for the entirety of the penal code, you just ain't buying it?

But: Rather than insist that we trot out examples for each and every criminal statute, and explain the "specific" and "express" Constitutionally permissible powers that justify all these laws, wouldn't it behoove you to do so? PARTICULARLY SINCE THIS IS YOUR ARGUMENT!!! JaO, myself, and the other sapient ones here on the blog are of the considered opinion that the powers to do these things are implicit and obvious (and even well-stated and explained by such as Marshall), and that no detailed explication for each individual instance is necessary. You, OTOH, in defending your 'theory' that only "express" and/or "specific" "enumerated powers" will suffice to render a law within the Constitutional constraints of Article I, should either be able to do so for each and every individual provision of the penal code (and the rest of the U.S. Code), or you'd have to (consistently) claim they're all unconstitutional until such is done. Well, my man, sorry about the mix-up. Have at it. We'll wait over here.

The federal criminal code is enormous and has several potential sources of power as I noted above. Therefore, making sweeping claims that the entire code is constitutional is simply nuts.

We're still waiting.....

Although I'd note that no one here claimed the "entire code" is constitutional. We're just hinting that most serious people think that most of it is, whether "express[ly]" or "specific[ally] enumerated as a Congressional prerogative or not....

Given my textualist view that the commerce clause meant what it said and was not a license for Congress to enact whatever it pleases, I am sure to consider multiple sections of the criminal code based on the Commerce Clause to be unconstitutional as did the Court in the Lopez decision.

Fine. Produce the "express" and/or "specific" "enumerated" powers for the parts you agree with, and then explain how the courts could have been soooooooooo misguided to have gotten all the rest wrong.

Finally, if you want me to respond to you, stop misrepresenting what I post. If not, I'll just go back to ignoring your posts.

Oh, I truly am sorry. I mistook you for someone who had a lick of sense. My mistake.

Cheers,
 

Just to clarify one aspect of my previous post, it is common to refer to McCulloch v. Maryland as recognizing that Congress has "implied powers" under the N&P clause. See, e.g., this Wikipedia article.
 

While we're on matters of intellectual dishonesty:

[Mark Field]: The N&P clause does not, strictly speaking, expand the powers delegated to the federal government; those powers remain as defined. What the N&P clause does, as JaO has detailed, is give Congress a very broad discretion in the means it uses to carry out the powers granted.

["Bart"]: Is JAO arguing this? My argument is that McCulloch granted Congress wide latitude in enacting legislation to carry out its
enumerated powers. JAO disagreed. Here is what he posted after multiple attempts to nail him down on this issue:

[JaO]: Yes, I absolutely assert that Congress may excercise
implied powers that are not expressly enumerated.

"implied". "enumerated". "expressly enumerated". Anyone see a disconnect here?

I thnk I pointed this out, but not quite so obviously, a couple posts up, but I think this dishonesty on "Bart"'s part needs to be laid out in the open....

Look, "Bart", if you'd like to go back to ignoring me, it's no skin off my nose. I'll just keep on keepin' on.... ;-)

Cheers,
 

The significance of the penal code example is not what Congress thinks, but what the McCulloch court thought. Chief Justice Marshall, in the dicta explaining his holding that the N&P Clause covers implied powers, cited this as an example:

So, with respect to the whole penal code of the United States, whence arises the power to punish in cases not prescribed by the Constitution? All admit that the Government may legitimately punish any violation of its laws, and yet this is not among the enumerated powers of Congress. The right to enforce the observance of law by punishing its infraction might be denied with the more plausibility because it is expressly given in some cases.

Congress is empowered "to provide for the punishment of counterfeiting the securities and current coin of the United States," and "to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The several powers of Congress may exist in a very imperfect State, to be sure, but they may exist and be carried into execution, although no punishment should be inflicted, in cases where the right to punish is not expressly given.


Similarly, as I quoted above, Marshall also cited other examples deriving from post roads, etc.

Arne, the question about the Necessary and Proper Clause really doesn't matter any longer because Bart has conceded, at least for the moment, that McCulloch did stand for the proposition that Congress has implied powers. And since Bart is just Bart, not the solicitor general, the whole Article I argument above was an entertaining sideshow at most.

The administration has a different theory. It argues in political forums that Article II provides indefeasible authority. And it, too, cites the Curtiss-Wright "sole organ" dicta as support.

The key thing to keep in mind these days is that this administration is quite afraid to argue that Article II claim in court. Having lost a subset of its sweeping separation-of-powers claim in Hamdi by a vote of 8-1, and having read the signs in Hamdan and counted noses on the bench, nobody in the White House or DOJ seriously believes that their expansive Article II theory can win in today's court. So they cower from judicial review. That is why, in cases that could be adjudicated such as Padilla and ACLU v NSA, the entire administration strategy has been to avoid Supreme Court consideration of the merits. If the expansive Article II theory gets teed up in a way it could not be ducked, Bush loses, and all the serious players know it.

However, the heavy-duty issues about core powers of Congress with regard to the Iraq war are a different story. These issues are not likely to be adjudicated at all, but rather will be negotiated politically. While there is little doubt, I think, that Congress possesses the constitutional authority to constrain or stop the war, there is serious doubt about whether it possesses the political will to do so. The political drama continues to play out.
 

JaO said...

The significance of the penal code example is not what Congress thinks, but what the McCulloch court thought.

Why? The McCulloch court was not reviewing any provision of the federal criminal code, to the extent that a federal penal code was even in existence at the time. Marshall's musings in that case are not law.

A much more relevant example of a case concerning the limits of Congress' power to enact a provision of the federal criminal code was United States v. Lopez, 514 U.S. 549 (1995), in which the Court held that the Commerce Clause did not provide Congress the power to criminalize the possession of a firearm in a school zone. There was no holding that Congress had an implied power to enact this criminal legislation derived from the N&P Clause, nor was there any reference to Marshall's musings on the subject 200 years ago which you imply are binding hornbook law. To the extent that the N&P Clause applied at all to this question, it was only as an enabling provision to allow Congress to exercise a Commerce Clause power which did not exist.

Arne, the question about the Necessary and Proper Clause really doesn't matter any longer because Bart has conceded, at least for the moment, that McCulloch did stand for the proposition that Congress has implied powers.

My friend, you are again omitting rather major portions of my posts in your misrepresentations of what I posted. I posted:

McCulloch held that the N&P Clause provided Congress with the implied power to enact legislation which is not expressly provided for in the Constitution, but which is necessary and proper for the exercise of is enumerated powers.

In sum, McCulloch's reference to "implied powers" concerns the means of exercising an Article I enumerated power and not the end of exercising a implied power not present in Article I.

The administration has a different theory. It argues in political forums that Article II provides indefeasible authority. And it, too, cites the Curtiss-Wright "sole organ" dicta as support...The key thing to keep in mind these days is that this administration is quite afraid to argue that Article II claim in court.

There is nothing controversial about the Administration's position. All the Administration is claiming here is that Article II grants the President a plenary authority over foreign policy and military matters, which it argues covers things like electronic surveillance of the enemy.

Earlier today, you admitted that the President is granted plenary authority as CiC:

FWIW, in considering the Commander in Chief Clause, I do think it encompasses some authority that is indefeasible. The core of military command -- in the sense that the C in C functions as the top-ranking general or admiral -- does entail some things as a plenary power. But not everything that can be expressed as a "command" is immune from congressional impingement...

You simply disagree with the Administration as to the scope of the President's Article II plenary authority, not as to its existence.
 

Bart: In sum, McCulloch's reference to "implied powers" concerns the means of exercising an Article I enumerated power and not the end of exercising a implied power not present in Article I.

Ever the moving target, you revert to the position that Maryland argued and lost in 1819. There are two reasons not to treat that position further: First, you never make an argument, beyond your own ipse dixit, that Marshall got it wrong when he rejected your narrow reading of "necessary and proper" -- especially the "necessary" component -- articulated in Tucker's 1803 treatise. Second, no one in administration hews to your Article I position. Your repetition of this peculiar theory can be replaced by a recording, and I need not repeat the rebuttal. When Paul Clement puts on his morning coat and makes such an amusing argument out loud, I will take it seriously.

Bart: There is nothing controversial about the Administration's position. All the Administration is claiming here is that Article II grants the President a plenary authority over foreign policy and military matters, which it argues covers things like electronic surveillance of the enemy.

LMAO. It is highly controversial, as we well know.

More relevant in this taxonomy of arguments, the administration nowhere adopts your own argument that Article I provides no authority to Congress beyond "enumerated" powers. It has coyly suggested a similar argument specifically about FISA in a DOJ letter to Congress, but never forthrightly in a legal brief AFAIK. If you know of one, please cite it.

Bart: You simply disagree with the Administration as to the scope of the President's Article II plenary authority, not as to its existence.

So? I am a reasonable analyst here, and I can conceive of hypotheticals that clearly pertain solely to the C in C. For example, I think Congress certainly could not appoint an officer to outrank the president in the chain of command. But Congress created the JCS, and it mandated that the President organize the armed forces into broad hierarchies such as CentCom.

I do emphatically reject the proposition that any and all acts that can be expressed as a military "command" are immune from congressional regulation. Commanders of any rank, including the commander in chief, cannot lawfully give an illegal order.

I also am reasonable enough to recognize that there are few bright lines that always delimit the C in C power, much as it would make analysis easier.

I add that in the macro area of war powers, your position also disagrees with the President's. You have claimed that Congress cannot use the spending power to cap the level of troop deployment in Iraq, but Bush said last week he thinks Congress could do so.
 

A much more relevant example of a case concerning the limits of Congress' power to enact a provision of the federal criminal code was United States v. Lopez, 514 U.S. 549 (1995), in which the Court held that the Commerce Clause did not provide Congress the power to criminalize the possession of a firearm in a school zone. There was no holding that Congress had an implied power to enact this criminal legislation derived from the N&P Clause ...

Even more relevant than that case, I think, was Scalia's concurrence in Gonzales v Raich. The noted champion of original undertanding centered his opinion, not on an expansive reading of the Commerce Clause directly, but rather on the Necessary and Proper Clause as interpreted by McCulloch v Maryland.

The N&P Clause is not just for liberals. True textual analysts understand that narrow phrases have narrow meanings, but general phrases have general meanings.
 

JaO said...

Bart: In sum, McCulloch's reference to "implied powers" concerns the means of exercising an Article I enumerated power and not the end of exercising a implied power not present in Article I.

Ever the moving target, you revert to the position that Maryland argued and lost in 1819.


JAO, this is getting really tiresome. Have you actually read this opinion or are you simply cherry picking dicta? My differentiation between "means" and "ends" is a paraphrase of Marshall's own justification in McCulloch for the creation of the national bank:

Here, the only question is, whether a bank, in its known and ordinary operations, is capable of being so connected with the finances and revenues of the government, as to be fairly within the discretion of congress, when selecting means and instruments to execute its powers and perform its duties. A bank is not less the proper subject for the choice of congress, nor the less constitutional, because it requires to be executed by granting a charter of incorporation. It is not, of itself, unconstitutional in congress to create a corporation. Corporations are but means. They are not ends and objects of government. No government exists for the purpose of creating corporations as one of the ends of its being. They are institutions established to effect certain beneficial purposes; [17 U.S. 316, 326] and, as means, take their character generally from their end and object. They are civil or eleemosynary, public or private, according to the object intended by their creation. They are common means, such as all governments use. The state governments create corporations to execute powers confided to their trust, without any specific authority in the state constitutions for that purpose. There is the same reason that congress should exercise its discretion as to the means by which it must execute the powers conferred upon it. Congress has duties to perform and powers to execute. It has a right to the means by which these duties can be properly and most usefully performed, and these powers executed. Among other means, it has established a bank; and before the act establishing it can be pronounced unconstitutional and void, it must be shown, that a bank has no fair connection with the execution of any power or duty of the national government, and that its creation is consequently a manifest usurpation. McCulloch, 17 U.S. 316, 326-27.

I have accurately described the McCulloch holding and its reasoning since you brought up this subject.

In stark contrast, you have not offered a single case including McCulloch which holds that the N&P Clause creates implied substantive powers which are an independent foundation for any federal statute. As Marshall stated in his holding and not some side dicta, the legislation forming the bank was simply a MEANS of carrying out the Congress' enumerated taxing and spending POWER.

Second, no one in administration hews to your Article I position.

Nonsense. Read pages 28-36 of the DOJ White Paper on the legal foundations for the TSP.

news.findlaw.com/hdocs/docs/nsa/
dojnsa11906wp.pdf

Moreover, the FISA judges told the Senate that Congress does not have the power to limit this plenary (they called it necessary and proper) power of the President:

Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary. *** The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans. ***

Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?

Judge Kornblum: No President has ever agreed to that. ***

Senator Feinstein: What do you think as a Judge?

Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.

Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?

Judge Baker: No, I do not believe that a President would say that.

Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?

Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too. ***

Senator Feinstein: Judge?

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution. ***

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.


The fact that you disagree with the Administration well annotated White Paper and the FISA judges testimony without a shred of law to back up your contrary position hardly proves that their position is in error.

Bart: You simply disagree with the Administration as to the scope of the President's Article II plenary authority, not as to its existence.

I do emphatically reject the proposition that any and all acts that can be expressed as a military "command" are immune from congressional regulation.


No one is arguing that straw man. I stated that Congress has superior power to the President when exercising one or more of its enumerated powers.

The issue is whether you can provide any legal support at all for your proposition that the N&P Clause provides substantive independent powers beyond those enumerated in Article I which allows Congress to regulate traditional CiC powers.

Provide me with just one case holding. Hell, provide me with some dicta directly addressing the issue.

McCulloch does not address this issue. Move on.

Bart: A much more relevant example of a case concerning the limits of Congress' power to enact a provision of the federal criminal code was United States v. Lopez, 514 U.S. 549 (1995), in which the Court held that the Commerce Clause did not provide Congress the power to criminalize the possession of a firearm in a school zone. There was no holding that Congress had an implied power to enact this criminal legislation derived from the N&P Clause ...

Even more relevant than that case, I think, was Scalia's concurrence in Gonzales v Raich. The noted champion of original undertanding centered his opinion, not on an expansive reading of the Commerce Clause directly, but rather on the Necessary and Proper Clause as interpreted by McCulloch v Maryland.


Scalia is arguing that the N&P Clause allows statutes regulating intrastate commerce as means to advance the ends of Congress' enumerated power to regulate interstate commerce. Nowhere does Scalia say that the N&P Clause is an independent source of authority for this statute.

BTW, this opinion is hardly Scalia at his most principled and engendered a great deal of well justified criticism.

http://www.cato.org/pub_display.php?
pub_id=3813
 

Bart,

You must have an awful itch for all the strawmen you create. I never said the N&P Clause was "independent" of the rest of the Constitution.

As for the language you quote about "ends" and "means," that model clearly applies in the case of congressional war powers because the nexus between the underlying congressional war powers and the implied powers is so close -- much closer than the relationship between taxation and chartering a bank.

Clearly, the "means" of specifying the scope of a conflict within an AUMF closely supports the "end" of declaring war, and the "means" of specifying how many troops to allocate to the conflict supports the "end" of raising and supporting armies, as well as the aforementioned power to define the scope of the authorized conflict.

Me: Second, no one in administration hews to your Article I position.

Bart: Nonsense. Read pages 28-36 of the DOJ White Paper on the legal foundations for the TSP.

I reread that section, and it still makes the same argument always has when I read it before: that the President's Article II authority in this particular field is exclusive. Nowhere does it embrace your own Article I argument, advanced in your colloquy with Marty Lederman at Volokh, that Congress simply lacks the power to regulate any wiretaps in the first place because wiretaps are not covered under the Commerce Clause and the N&P Clause.

Likewise, the Senate testimony you quote from the former FISA Judges (and Judge Magistrate Kornblum, who never was a FISA judge) involved questions about whether presidents possess indefeasible Article II powers to wiretap for intelligence purposes. Their answers were all over the lot. Yes, poor Judge Stafford misspoke and referred to the Necessary and Proper Clause as if it applied to the President, rather than Congress. Presumably, he knows better. I know I do.

At any rate, you are the only person I know of who argues that Congress can't regulate wiretapping at all under the Commerce and N&P clauses of Article I.
 

Bart,

I failed to make clear that I misunderstood your post of 11:43 pm. Given your subsequent reply, I now understand once more that you have come around to accept the holding of McCulloch that essentially defines "necessary and proper" as a constitutional term of art. That holding, establishing the doctrine of implied powers, is much less restrictive than your original assertion (and Tucker's narrow reading from 1803, which you cited earlier).

So I gather that you do now fully accept the holding of McCulloch, interpreting the term of art as follows: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."

That is quite a bit broader than your original dogma that Congress has only expressly enumerated powers. Congress also has implied powers which are not enumerated, and which do more than simply execute the enumerated powers.
 

jao:

As for the language you quote about "ends" and "means," that model clearly applies in the case of congressional war powers because the nexus between the underlying congressional war powers and the implied powers is so close -- much closer than the relationship between taxation and chartering a bank.

I will take this as a concession that you no longer believe my summary of the function of the N&P Clause using the terms "means" and ends" was the position "Maryland argued and lost in 1819." Reviewing the actual language of the McCulloch holding will do that for you.

Clearly, the "means" of specifying the scope of a conflict within an AUMF closely supports the "end" of declaring war, and the "means" of specifying how many troops to allocate to the conflict supports the "end" of raising and supporting armies, as well as the aforementioned power to define the scope of the authorized conflict.

The scope of a declaration of war has always been a simple authorization for the executive to go to war against a country or a group. I am unaware of a declaration of war or AUMF which ever set geographical or troop limits on a war. The N&P Clause does not expand the scope of this or any other power.

Me: Second, no one in administration hews to your Article I position.

Bart: Nonsense. Read pages 28-36 of the DOJ White Paper on the legal foundations for the TSP.

I reread that section, and it still makes the same argument always has when I read it before: that the President's Article II authority in this particular field is exclusive. Nowhere does it embrace your own Article I argument, advanced in your colloquy with Marty Lederman at Volokh, that Congress simply lacks the power to regulate any wiretaps in the first place because wiretaps are not covered under the Commerce Clause and the N&P Clause.


The last paragraph on page 29 through page 30 of the DOJ White Paper makes my general argument that Congress lacks the Article I power to regulate the TSP. It is true that DOJ did not address the more specific arguments raised later by folks like Marty Lederman and yourself that the Commerce Clause and/or the N&P Clause provide Congress with this power. However, it is incorrect to claim that the Administration has not advanced my Article I limits argument.

At any rate, you are the only person I know of who argues that Congress can't regulate wiretapping at all under the Commerce and N&P clauses of Article I.

That is not my argument, as you well know. My repeated assertion is that Congress does not have the power to determine or limit the targets of intelligence gathering against foreign groups or their agents as FISA purports to do. Congress most certainly has the power to regulate domestic wiretapping under a variety of other situations.

Next, I do not recall off the top of my head any plaintiff in one of these TSP cases claiming that the Commerce Clause and/or the N&P Clause provided Congress with a substantive power to regulate foreign intelligence gathering. Therefore, I doubt DOJ or one of the conservative legal NGOs who have briefed these issues would have addressed your argument. Thus, you are stuck with my analysis.

So I gather that you do now fully accept the holding of McCulloch, interpreting the term of art as follows: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."

That is quite a bit broader than your original dogma that Congress has only expressly enumerated powers. Congress also has implied powers which are not enumerated, and which do more than simply execute the enumerated powers.


:::sigh:::

Which parts of my last dozen posts did you not understand? My posts speak for themselves and I am not going to correct your misrepresentations of my posts yet again.
 

"Bart" DePalma trots out the same ol' cowflop:

[Jao]: Second, no one in administration hews to your Article I position.

Nonsense. Read pages 28-36 of the DOJ White Paper on the legal foundations for the TSP.


The DOJ has never pushed this view in court (and parts of that "White Paper" section, such as those that deal with the AUMF as creating a wartime stuation, are simply specious [for instance, claiming that FISA was intended for application in times of peace and not intended for wartime, despite an express provision in the act as to what happens in wartime] and have been rejected in other contexts).

The "White Paper" is hardly a legal document, and is more a polemic.

But here's a cute quote:

"A statute man not "impede" the President's ability to perform his constitutional duty," particularly not the President's most solemn constitutional obligation -- the defense of the Nation."

"White Paper", p. 25.

The preznit's most solemn constitutional obligation is to protect the Constitution (not ignore or violate it).

Back to the subject of whether the "White Paper" disavows JaO's take on McCulloch: It doesn't mention it. It does try to differentiate the cases arguing against the preznit's plenary wiretapping powers (as it must) by insisting that these cases are examples of "express" Congressional powers. But even here, their argument is slipshod: They cite Jackson in Youngstown "(explaining that Congress is given express authority to 'raise and support Armies' and 'to provide and maintain a Navy')". But Youngstown was a steel mill seizure case, and how the "express" powers to "provide and maintain a Navy" apply there ... ummm ... requires, shall we say, a wee bit of implication?

More (repeated) sophistry from "Bart":

Moreover, the FISA judges told the Senate that Congress does not have the power to limit this plenary (they called it necessary and proper) power of the President:

Judge Kornblum: Presidential authority to conduct...


Kornblum is not a "FISA judge".

Then there's this fine collquy to this maladministration/Republican-sycophancy dog'n'pony show:

Senator Feinstein: Judge?

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution.


Ummm, great judges we have. There's no "Necessary and Proper Clause" for the preznit.

If Stafford misspoke himself, and was arguing that the "Necessary and Proper Clause" (in itself) is no Congressional justification for limiting the presidential power, that is obvious, but is hardly an argument made by anyone.

Cheers,
 

"Bart" DePalma (to "JaO"):

The fact that you disagree with the Administration well annotated White Paper and the FISA judges testimony without a shred of law to back up your contrary position hardly proves that their position is in error.

Neither the judges quoted (not all FISA judges) nor the White Paper discussed McCulloch v. Maryland and the concept of "implied powers" versus your quibbling about "means" and "ends" (which is what your dispute with "JaO" is here). Everyone agrees that "necessary and proper" provides some freedom to Congress to do more that what is "expressly" granted them (and how could it be otherwise?). "JaO" says that such additional ... shall we say "powers"? ... are implied, and you prefer (against "Jao"s argument to the contrary) to insist that such powers are simply those powers incident to the achievement of the expressly granted ones (i.e., the "means" of performing what is in their power to do).

But here's your formulation:

My friend, you are again omitting rather major portions of my posts in your misrepresentations of what I posted. I posted:

McCulloch held that the N&P Clause provided Congress with the implied power to enact legislation which is not expressly provided for in the Constitution, but which is necessary and proper for the exercise of is enumerated powers.

In sum, McCulloch's reference to "implied powers" concerns the means of exercising an Article I enumerated power and not the end of exercising a implied power not present in Article I.


You agree with "JaO" in the first post, but then you dispute that very meaning.

Cheers,


Cheers,
 

Bart,

The fact remains that only you have claimed that Congress lacked authority to regulate wiretapping in the first place under the Commerce and N&P clauses. DOJ does not remotely touch that theory, from which you now seem to backpedal.

Similarly, you now retreat from your prior assertion that Tucker's narrow reading of N&P in 1803 should prevail in the face of McCulloch's 1819 holding.

Bart: Next, I do not recall off the top of my head any plaintiff in one of these TSP cases claiming that the Commerce Clause and/or the N&P Clause provided Congress with a substantive power to regulate foreign intelligence gathering.

There is no need for any plaintiff to do so, because FISA is presumptively constitutional. If the administration ever stops hiding from the merits and argues some constitutional theory in a real court, that issue might become relevant there. So far, the only court to rule in any of these cases did not even have to address the constitutional issue in ruling against the government, because the DOJ brief merely "suggested" that FISA might be unconstitutional without bothering to say why.

FISA is the law of the land. If lawyers for President Bush, the first president to violate it, want to argue that it is somehow unconstitutional, it is up to them to show up in court and actually make the argument.

Mister President, tell it to the judge.
 

JaO said:

At any rate, you are the only person I know of who argues that Congress can't regulate wiretapping at all under the Commerce and N&P clauses of Article I.

That's a killer line. In fact, "Bart" does argue that Congress may not regulate wiretapping at all, because he is forced to claim that there's no Article I authority to do such (so as to avoid the Youngstown doctrine). What happens when wiretapping laws collide with any executive powers (if there be any in this area) to be CinC of the miliary becomes then a "separation of powers" issue, where Youngstown will pertain. But if "Bart"'s position is correct, and Congress has no power to pass wiretappng laws, then Title III of the Omnibus Crime Control and Safe Streets Act and the CALEA Act are unconstitutional. Now that is a proposition that the maladministration would be embarrassed to put forth (as should "Bart").

Cheers,
 

"Bart" DePalma said:

[Jao]: I reread that section, and it still makes the same argument always has when I read it before: that the President's Article II authority in this particular field is exclusive. Nowhere does it embrace your own Article I argument, advanced in your colloquy with Marty Lederman at Volokh, that Congress simply lacks the power to regulate any wiretaps in the first place because wiretaps are not covered under the Commerce Clause and the N&P Clause.

The last paragraph on page 29 through page 30 of the DOJ White Paper makes my general argument that Congress lacks the Article I power to regulate the TSP....


Nope. I reread it as well, and it makes no such argument, except as to whether Congress can limit a presidential power. It's a "separatation of powers" argument.

... It is true that DOJ did not address the more specific arguments raised later by folks like Marty Lederman and yourself that the Commerce Clause and/or the N&P Clause provide Congress with this power. However, it is incorrect to claim that the Administration has not advanced my Article I limits argument.

The only language close to what you're claiming is this:

"... statutory limitations as the Constitution permits Congress to impose by exercising one of it enumerated powers."

But even this not-directly-applicable quote (from a Reagan era OLC paper, which is hardly a court "holding") doesn't use your formulation "specific[ally] enumerated powers" or "express[ly] enumerated powers".

Cheers,
 

"Bart" DePalma:

That is not my argument, as you well know. My repeated assertion is that Congress does not have the power to determine or limit the targets of intelligence gathering against foreign groups or their agents as FISA purports to do. Congress most certainly has the power to regulate domestic wiretapping under a variety of other situations.

Ummm, where in the Constitution does it "expressly" specify that Congress's ability to regulate wiretappng is limited to "domestic wiretapping" (which, I'd note FWIW, is also covered under FISA)?

Cheers,
 

"Bart" DePalma:

Next, I do not recall off the top of my head any plaintiff in one of these TSP cases claiming that the Commerce Clause and/or the N&P Clause provided Congress with a substantive power to regulate foreign intelligence gathering.

Nor do they need to until the gummint makes the opposite argument in court. No need to state the obvious and undisputed (you'd think that as a law student, they would have told you this when teaching you how to write a brief).

Cheers,
 

Post a Comment

Home