Your findings are not surprising. The language of the Constitution is actually quite clear. Congress has all these enumerated powers relating to the military. The President doesn't-- instead, he is the "commander in chief". But a "commander" is always subject to and constrained by the law. It would be odd to say that the President is the one commander who isn't.

Further, the President has the "executive power". An executive EXECUTES-- in other words, implements and carries into effect a preexisting policy decision. And so it says in the Constitution that the President shall "take care that the laws be faithfully executed". In other words, the job of President is to implement what Congress tells him or her to implement.

Now, obviously, there are some specific powers that the President has exclusively, and which are granted separately from the executive power, such as the pardon power. But it is absolutely clear that the framers thought that the President would be bound by the laws, so long as they were enacted within Congress' Article I powers (which included not only broad enumerated powers but also the broad necessary and proper clause). The power to disobey the laws would not be something that one would describe using the phrase "executive power", because an executive carries something out, rather than disobeying it. And it is certainly not something one would describe as taking care that the laws be faithfully executed.

Further, it is clear that Hamilton's desires for a stronger executive were rejected by other framers, who didn't want a monarch.

The idea that the Constitution actually grants the President the power to disobey the law as promulgated by Congress is obviously something that developed more recently.
 

Just to follow up on Dilan's excellent points:

1. The Stuart kings argued that they could "suspend" or "dispense with" the laws or their execution. The English Bill of Rights specifically rejected these claims:

"That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal..."

Any argument that the Founders intended to give to the President the powers which their ancestors had fought a Civil War and a Revolution to deny to the Stuarts is simply ignorant.

2. I didn't have time to read every the article in detail (yet), but I didn't see any mention of Lincoln's description of his power in his letter to James Conkling of August 1863: “the Constitution invests its commander-in-chief with the law of war in time of war.”

What I find notable about this is Lincoln's implicit recognition that the President has no independent power to make law, but can only operate within the confines of law.
 

Dilan and Mark:

Thanks very much for reading. I'm afraid, however, that the question is not quite so easy.

No one is arguing that the President enjoys a general power to ignore, or dispense with, laws. The preclusive power argument is simply that the Commander in Chief Clause (like the pardon clause) invests the President with certain affirmative authorities, and that at least certain of those authorities, such as over tactical decisions in wartime, cannot be regulated by statute.

I do not see how the term "commander," in and of itself, settles the question in favor of Congress. Nor do I see how Lincoln's assertion of the powers vested in commanders under the laws of war was an "implicit recognition that the President has no independent power to make law, but can only operate within the confines of law." That uncontroversial statement by Lincoln means that the President does have some power to act unilaterally -- as the laws of war allow -- and it is silent on the question of whether Congress can regulate his exercise of those powers (because that question was simply not at issue when he wrote the letter).
 

No one is arguing that the President enjoys a general power to ignore, or dispense with, laws. The preclusive power argument is simply that the Commander in Chief Clause (like the pardon clause) invests the President with certain affirmative authorities, and that at least certain of those authorities, such as over tactical decisions in wartime, cannot be regulated by statute.

That is obviously wrong, though. Yes, in practice, Congress doesn't control "tactical decisions in wartime". But if Congress, as part of its enumerated powers to regulate the armed forces, or the necessary and proper clause, passes a statute that, say, prohibits the use of cluster bombs during wartime, that statute would bind the President even if the President's military judgment was that a cluster bomb would be the most effective weapon in a particular situation.

Similarly, if Congress prohibited the military from entering the territory of Iran during the hostilities in Iraq (most likely in the form of a condition of war spending, but it also could be a standing bill), that's obviously constitutional.

As a matter of practical reality, Congress can't micromanage a war. There's no way 535 members of Congress can veto or order specific military decisions. But it's entirely obvious that Congress can take tactical options off the table. And the President, like any other military commander, is bound by the valid regulations of the armed forces passed by Congress.

There is simply NO authority in the Commander in Chief clause to disobey Congress. The framers were quite clear that Congress would set the rules.
 

Many thanks to Professors Lederman and Barron for their yeoman review of war power history. I learned a great deal reading these two articles.

In several prior posts here, I have suggested that the text of the Constitution sufficiently sets forth the war powers of Congress and the Executive. Article II broadly grants the President executive and CiC powers without limit to those specifically enumerated in that article. In contrast, Article I expressly limits Congress to the war powers enumerated in that article. Consequently, I suggest that the President enjoys plenary (or if you prefer preclusive) powers over all areas of foreign and war policy not enumerated and granted to Congress in Article I. Further, the President may exercise war powers enumerated in Article I in the absence of congressional action in the area. However, because the Constitution specifically grants certain war powers to Congress while only granting the President a general authority, congressional action pursuant to an enumerated power trumps general CiC authority.

Thus, I would suggest that it would be useful to view the history of war powers not as a horse race between the President and Congress in the exercise of war powers, but rather through the prism of whether the Congress is acting within one or more of its enumerated powers. If Congress was acting within one of its enumerated powers, it cannot be said to be attempting to limit the President's plenary executive or CiC powers. When this approach is taken, one can see that Congress stayed well within its Article I powers until quite recently.

1) Article I, Section 8 expressly granted to Congress the power "to call forth [and] provide for the organizing, arming and disciplining the militia." Similarly, Congress was expressly granted the power to "raise and support" as well as to "regulate" the standing military.

Statutes applying the international law of war over the years fall comfortably within the power to discipline or regulate the conduct of the armed forces. These laws of war control the individual good order and discipline expected of individual members of the military and do not purport to direct a nation's commander in the deployment of its troops.

Similarly, the statutes setting forth recruiting and armament standards are authorized by the powers to raise, organize and arm the military.

Washington era statutes setting the duration of a militia call up do not mean that Congress has the power to set limits on the length of wars. Rather, unlike a standing military, militias are involuntarily called up for a specific length of time. Thus, it was normal practice to set a disbandment date for militias. There is no disbandment date for standing armies.

2) Article I, Section 8 expressly granted to Congress the power "to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

While it is constitutionally questionable for Congress to delegate its power to raise the militia to the Executive, the statutes authorizing Washington to raise the militia for wars against Indians who lived in certain regions is a legitimate exercise of Congress' power to declare war.

Indeed, these statutes demonstrate that a "declaration of war" need not use those magic words. Rather, these statutes very much resemble the AUMF/declarations of war against al Qaeda and Iraq.

The Quasi War against France was not a war at all. Rather, Congress was exercising its powers to "grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." Letters of Marque and Reprisal are limited authority to seize another nation's ships on the high seas in an action short of war. Indeed, as the essay points out, our young and weak Republic was doing its best to avoid war with Napoleonic France.

Letters of Marque and Repraisal are by their very nature limited grants of authority to certain types of naval action short of war. In contrast, war was never so limited. Thus, using the Letters of Marque and Repraisal against French ships as precedent for Congressional limitations on Executive wartime command powers is not historically or legally valid.

The statutes instructing the Executive how to treat French citizens captured in the execution of the Letters of Marque and Repraisal against French ships are authorized by the Article I provision granting Congress the power to set rules for Captures. The same authority applies to rules set for the treatment of other captures in later wars.

3) Article I, Section 8 also empowers Congress "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States. This would of course include the power to seize property in the United States as set forth in the Fifth Amendment.

The Brown v. United States and Youngstown cases held that seizure of property in the United States is a plenary power of Congress and not part of the President's CiC authority. While Justice Story's dissent in Brown is historically interesting, it is not the law. Consequently, the Brown and Youngstown cases or the Civil War era Confiscation Acts are of little or no use as precedent concerning Congressional attempts to limit the President's plenary CiC powers.

4) Article I, Section 9 grants Congress the power to suspend habeas corpus for public safety in times of rebellion. Article II nowhere grants the President this power and this power does not appear to fall under the authority to command the military. Lincoln was acting beyond his Article II powers when he suspended habeas corpus during the Civil War. Therefore, when the Congress later acted to suspend habeas corpus on terms which were less severe than Lincoln's, this is not an example of Congress limiting the President's plenary CiC powers.

5) Similarly, Article I grants Congress plenary power over the purse. The cited Presidential actions spending unappropriated monies for the military were unconstitutional. Congressional limits on such behavior again do not constitute efforts to limit the President's plenary CiC powers.

6) The Posse Comitatus Act raises some interesting constitutional questions. The President is both the CiC of the military and the chief law enforcement officer. Thus, does the President have the power to enforce peacetime federal laws using the military under his command? If so, by what Article I power does Congress tell the President he may not?

In any case, we need not answer these questions because the issue being addressed by the essay is whether Congress can enact statutes directing military campaigns. The Posse Comitatus Act addresses civilian law enforcement, not a military campaign.

7) Article I nowhere grants Congress command authority to direct the deployment of the military and the conduct of military campaigns. Thus, Congress would be acting in excess of its Article I powers to do so.

The Courts have long recognized the President's plenary power to command the military and direct the conduct of campaigns, beginning with the Civil War era Chase dictum. There is no court precedent what so ever for the theory that the Congress may command the military and direct the conduct of campaigns.

However, controversial wars and their aftermaths seem to prod Congress into considering and enacting unconstitutional statutes to command the troops.

The 1852 Troop Deployment Debate during the unpopular Mexican American War is just such and example. Congress wisely decided to back down from the brink and declined to enact a bill redeploying a regiment from Mexico to Oregon.

The Radical Republican Congress during Reconstruction thought that President Johnson was treating the defeated Confederacy too leniently and unconstitutionally enacted legislation effectively granting CiC powers to General Grant.

On the eve of WWII, an isolationist Congress enacted the first peacetime draft, but unconstitutionally sought to limit the deployment of draftees to the United States. FDR unwisely bowed to the isolationism dominant in the politics of the day and disrupted much of the regular Army and Marine Corps following this statute.

However, Congress never attempted to limit the President's plenary Article II CiC power to direct wartime military campaigns until the Vietnam War. The essay does an exemplary job detailing how the Congress enacted a series of laws seeking to hamstring the President's direction of that war and thus assure the United States first wartime defeat.

I suspect that the Vietnam era acts of that radical Congress are what inform the world view of this essay. Despite over 300 pages of argument to the contrary, these acts are contrary to the plain text and general understanding of the Constitution for the nearly two centuries before the Vietnam War.

Rather than being precedent for further unconstitutional behavior, the Vietnam legislation offers a cautionary tale to Congress similar to the cautionary tale Lincoln's suspension of habeas corpus offers the Executive.
 

Well, dilan, as you'll see from the articles, I don't disagree with your conclusions. But, for reasons we explain in the article, nor do I think that it is "obvious" -- not without considering the issue in greater depth, anyway.
 

I find myself in complete agreement with Dilan: The notion that the founders, still recovering from a war waged by a strong executive by the name of King George, set out to create a strong executive having unbridled warmaking powers is insanely ahistorical. As well as finding no support in the text of the Constitution.

Bart's tack that the Constitution imposes no limits on the President's powers is a stark inversion of logic. It barely grants any powers to limit. Independent of Congress the President may negotiate treaties which are void of any legal force unless ratified, may issue pardons... and that's about it. Beyond that, the President is Congress' creature, executing the laws THEY enact, waging the wars THEY declare, with the military THEY decide to give him. And if they decide to, they may remove him from office, while the President has no power to remove members of Congress.

Definitely an asymmetric power relationship, with the President holding a very short end of the stick.
 

Dilan:

But it is absolutely clear that the framers thought that the President would be bound by the laws, so long as they were enacted within Congress' Article I powers (which included not only broad enumerated powers but also the broad necessary and proper clause). The power to disobey the laws would not be something that one would describe using the phrase "executive power", because an executive carries something out, rather than disobeying it. And it is certainly not something one would describe as taking care that the laws be faithfully executed.

I think I see your problem, Dilan. You're forgetting to think of the preznit as a king with broad powers except the few enumerated, narrow, and specific powers ceded to Parlia... -- umm, sorry, "Congress"....

Cheers,
 

Prof. Lederman:

The preclusive power argument is simply that the Commander in Chief Clause (like the pardon clause) invests the President with certain affirmative authorities, and that at least certain of those authorities, such as over tactical decisions in wartime, cannot be regulated by statute.

This is a prudential argument, along the lines of the trope "the Constitution [or whatever] is not a suicide pact".

But I beg to disagree.

I've said previously that Congress could if they wanted (but wouldn't) pass a law that specifies that military armament shall consist of plastic sporks and nothing else. I have yet to see anyone say that this is not within their power.

They may pass a law that says that all military vehicles may make only right turns.

They can do any number of things, each potentially more harmful in reality than, say, a tactical decision to bomb Iraq for a week before invading.

So, if they're not prevented from doing that (other than by notions of good sense), why would a prudential argument against their making "tactical decisions" prevail?

Not to mention, with situations such as Iraq, history will record that the decisions of the Deciderator-in-Chief might well have been far worse, albeit unilateral, than the decisions that might have prevailed had lots of wiser head sat in counsel....

Cheers,

Cheers,
 

Dilan:

... if Congress, as part of its enumerated powers to regulate the armed forces, or the necessary and proper clause, passes a statute that, say, prohibits the use of cluster bombs during wartime, that statute would bind the President even if the President's military judgment was that a cluster bomb would be the most effective weapon in a particular situation.

I think I put it more pithily.

Cheers,
 

No one is arguing that the President enjoys a general power to ignore, or dispense with, laws. The preclusive power argument is simply that the Commander in Chief Clause (like the pardon clause) invests the President with certain affirmative authorities, and that at least certain of those authorities, such as over tactical decisions in wartime, cannot be regulated by statute.

Let's suppose that the CinC clause does amount to a grant of power to the President. As I see it, there are then two, and only two, logical possibilities (both of which I've seen argued by the President's defenders):

1. The grant to the President covers different subjects than the grants to Congress in Art. I. In this case, there's no shaded area in a Venn diagram of power; Congress occupies one separate and distinct area, the President another.

If this is what the Framers intended, there can never be a true instance of a conflict as Jackson assumes for his category 3. Either the President has overstepped his bounds or Congress has; there's no question of override one way or the other, and there's no reason to think Presidential power is at a "low ebb" just because Congress enacted a statute.

I think this view of Presidential power is wrong and Dilan's first post is a good summary of why it's wrong. His argument, which is structural in nature, says that the President, as an executive, is incapable of having powers independent of the law. The sole and only purpose of an executive is to act in accordance with law. The Lincoln quote I provided is consistent with this structural view of Presidential power.* Both history and the principle of separation of powers support this interpretation.

2. The second possibility is that the grant to the President and the grant to Congress do overlap. In this case, there can be a true conflict between the two, as Jackson describes in his category 3.

What the President's defenders must argue, is that when such a true conflict occurs, the President's power permits him to suspend or dispense with the laws enacted by Congress (not as a general rule, but only in this particular case). As my first post shows, this argument runs squarely into historical absurdity.
The prohibition in the English BoR was not limited to particular instances of prerogative power, it was universal -- every attempt to suspend or dispense with the law or the execution of the law was barred.

With this more complete explanation, I'd stand on the argument in posts 1 and 2 above.

*The President could argue that international law provides a basis for him to act independent of Congress. Putting aside whether this would amount to much outside of treaties and existing Congressional statutes, the grant to Congress of the power to "define ... offenses against the law of nations..." would surely permit Congress to close any loophole if it so desired.
 

Professor Lederman, I look forward to reading the second of these two articles (as I learned much from the first). Before I do, however, I wish to emphasize the simple political power element. One difficult question is to explain why aggrandizement of a particular power might have been considered unacceptable at time A, but is resisted less at time B (or C, or whenever). There is an element of naked power-grabbing by those with the skill, opportunity, and temerity to seize. As Sandy Levinson has emphasized, the Daryl Levinson thesis suggests that political partisanship has trumped institutional loyalties, so that Republicans in Congress are more loyal to the President than to the prerogatives of their branch. Buy why did this not occur at earlier times? I could generate several hypotheses (strong personality in the Oval Office; confluence of critical events; changing structure of party system; influence of media on electoral politics making Congressmen supine; the weight of incremental change over time building on itself), though I would have to think long and hard as to how to test them.

The larger point though, is that legal analysis of limitations on the executive, as essential as they are, should keep in mind simple power grabbing motives, which can be efforts to encroach on the other branches; this of course is precisely the point made by Madison in Federalist 51 (though his solution is, I think faulty). My favorite part of Jackson's Youngstown concurrence is where he suggests of our system of government that "Such institutions may be destined to pass away." It is a recognition of the frailty of such institutions, even given the apparent robustness of a system of government has has passed through (now) 219 years, including Civil War, Depressions, World Wars, a soft world imperialism, and all the rest.
 

brett said...

I find myself in complete agreement with Dilan: The notion that the founders, still recovering from a war waged by a strong executive by the name of King George, set out to create a strong executive having unbridled warmaking powers is insanely ahistorical. As well as finding no support in the text of the Constitution.

In fact, the newly minted United States did create a weak executive without any CiC powers along the lines of what you and Dilan propose through the Articles of Confederation. However, the Articles were such a resounding failure that the States ratified a Constitution providing for a far stronger executive and federal government.

Bart's tack that the Constitution imposes no limits on the President's powers is a stark inversion of logic

Stop here and try actually reading what I posted.

My argument was that Congress' enumerated Article I powers trump the President's general executive and CiC. Furthermore, I spent 70% of the time arguing that nearly all of Congress' pre Vietnam exercises of war powers fall comfortably within its enumerated Article I powers and 20% pointing out how the President exceeded his Article II CiC powers.

The 10% at the end argued that Article I simply does not grant Congress the command power to direct the deployment of the military and control military campaigns. This area within Article II's general grant of CiC power and outside of Article I make up the plenary (or Professor Lederman's preculsive) CiC powers of the President.

This is hardly some view I made up. It is required by the text of the Constitution and, as the essay noted, have been the heavy majority view for most of the life of our Republic.
 

mark:

You are missing the third logical possibility which is actually the heavy majority view.

Article II grants the President as the sole executive and CiC general power over all areas of military policy.

Article I grants Congress power over certain enumerated areas of military policy.

Article I's grant of power covers some but not all areas of military policy.

The President enjoys plenary power over all areas of military policy not covered by Article I.

However, in the areas of military policy covered by both Articles I and II, Congress has the superior power. The President may only act in these areas if Congress has not. However, when Congress acts pursuant to an enumerated war power, the President's contrary policy gives way.

The President has NO POWER to ignore or dispense with laws enacted pursuant to enumerated Article I powers. However, the President may, and as chief law enforcement officer must, ignore unconstitutional and unlawful acts of Congress which exceed its Article I powers.

In short, Congress is the stronger branch and wins all conflicts within its set of enumerated powers. However, they do not run everything and there are a set of plenary powers outside of Article I which the President wislds.
 

Bart's view -- one commonly assumed -- is that Congress wins in all cases of overlapping powers, but that some of the statutes in question fall outside Congress's article I powers in the first instance, and are therefore unconstitutional. In Part III-C of our first article, we argue that Congress's powers are many and extensive (including, importantly, the powers implied from the Declare War, Army and Navy, and Necessary & Proper Clauses), and would support many times over virtually all of the controversial statutes throughout our history -- so that the puzzle cannot simply be reduced to a question about Article I. That discussion will presumably not persuade Bart, and perhaps some other readers; but I think it's correct and, in any event, it's there for your consideration.
 

Professor Lederman:

I think we share the same basic framework. However, we disagree as to the extent of the Article I powers.

Can you point to any provision of Article I or case law which interprets that provision which grants Congress the command power to direct the deployment of troops and the conduct of military campaigns?

I read your first article and the closest you and Professor Barron appeared to get were the Quasi War with France cases. However, as I noted above, the Quasi War was not a war at all and instead was actually an exercise of the powers to issue Letters of Marque and to set rules for captures. As you noted in your essay, Congress was intentionally avoiding war with the powerful Napoleonic France. Consequently, I do not see how these cases are precedent for Congress to assume the command authority to direct the wartime deployment and campaigns of the military.

To regulate does not mean the same thing as to command. I think you will agree with me that there is no case law interpreting the Article I provision allowing Congress to regulate the uniformed services to mean that Congress may direct the deployment and campaigns of military forces.

Finally, the N&P Clause is not an independent source of power. Rather, it permits Congress to enact laws which permit it or the other branches to exercise their powers. I am unaware of any case law which allow Congress to use this provision to assume the powers delegated to the other branches.

Consequently, I am at a loss as to the source of command power enumerated in Article I.
 

Bart;

Are you holding that when POTUS is acting as CinC his/her powers are not constrained by either Congress or the Courts?
 

Is the "Dead Hand" manipulating the Sock Puppet?
 

Congress wins in all cases of overlapping powers, but that some of the statutes in question fall outside Congress's article I powers in the first instance, and are therefore unconstitutional.

As I understand this claim, it is merely a subset of the argument that Presidential and Congressional power do not overlap in some instances (see my category 1 above). In my view, Dilan's argument demonstrates the error in this claim.

In order to defeat Dilan's argument, one would have to argue that there is a gap between the legislative power granted to Congress ("all legislative power herein granted") and the reserved powers of the States, and that the President fills that gap. Such a claim has no support in history, theory, or structure.
 

No, Mark, the claim is a bit different -- it is one of what happens in cases of overlapping powers: The claim is that the CINC has the power to act unilaterally (e.g., to make rules for courts martial; to make decisions about how to fight a war; etc.); that Congress also has the power to regulate such matters; and that in *some* of the areas of overlapping authority, the CINC prevails over inconsistent statutory or treaty-based regulation.

I (mostly) part ways with the argument at the last step.
 

"Bart" DePalma:

Can you point to any provision of Article I or case law which interprets that provision which grants Congress the command power to direct the deployment of troops and the conduct of military campaigns?

Can you please leave your "straw men" at home? We've all seen and admired them,and it's time to put them back in your closet.

Here's what Prof. Lederman said:

... we argue that Congress's powers are many and extensive (including, importantly, the powers implied from the Declare War, Army and Navy, and Necessary & Proper Clauses), and would support many times over virtually all of the controversial statutes throughout our history -- so that the puzzle cannot simply be reduced to a question about Article I.

If you have a statute there that you think has "direct[ed] the deployment of troops and the conduct of military campaigns" where you can cite a court case that has held that this was unconstitutional, maybe we can discuss it (you might start with the War Powers Act ... ummm, but that has never been struck down ... oh well).

But to pretend that regulations as to the procedure for legal wiretapping is "direct[ing] the conduct of military campaigns" (or your more limited, "directing" who the targets of the surveillance shall be, any more than a law calling for the prosecution of murderers is a "bill of attainder" against all those picked-on murderers) is nucking futz...

First find a really on-point case that says that Congress can't "direct" campaigns, and then cite the decision that struck it down (as I said above, the WPA is a good starting place).

Absent that, your claim WRT FISA has no support other than your personal opinion as to what should pertain WRT the Constitution. That and $3 will get you a latte.

Cheers,
 

Finally, the N&P Clause is not an independent source of power. Rather, it permits Congress to enact laws which permit it or the other branches to exercise their powers. I am unaware of any case law which allow Congress to use this provision to assume the powers delegated to the other branches.

McCulloch v. Maryland rejects your view of the Necessary And Proper Clause. Rather, so long as the purpose of a Congressional statute is legitimate (i.e., related to an enumerated power), the Necessary and Proper Clause allows Congress to use ANY means rationally related to that legitimate end. Thus, the clause clearly broadens Congress' power.

As to your reference to the powers delegated to other branches, that's begging the question. As the President has to obey laws passed that fall within Congress' Article I powers, I don't see how a law that falls under the Necessary And Proper Clause is any different.

The Necessary And Proper Clause is like the Ninth Amendment to many conservatives-- an inkblot.
 

mark field said...

In order to defeat Dilan's argument, one would have to argue that there is a gap between the legislative power granted to Congress ("all legislative power herein granted") and the reserved powers of the States, and that the President fills that gap. Such a claim has no support in history, theory, or structure.

Dilan's argument that Congress has unlimited power is contrary to the very first provision of Article I:

Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Congress is NOT vested with all legislative powers, but rather only those powers enumerated in Article I.

It is pretty obvious that Article I's enumerated powers do not reach all areas of governance, including command authority to direct the deployment of the military and the conduct of military campaigns.

Congress may get he final word within its Article I powers, but those powers are limited.
 

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dilan said...

BD: Finally, the N&P Clause is not an independent source of power. Rather, it permits Congress to enact laws which permit it or the other branches to exercise their powers. I am unaware of any case law which allow Congress to use this provision to assume the powers delegated to the other branches.

McCulloch v. Maryland rejects your view of the Necessary And Proper Clause. Rather, so long as the purpose of a Congressional statute is legitimate (i.e., related to an enumerated power), the Necessary and Proper Clause allows Congress to use ANY means rationally related to that legitimate end. Thus, the clause clearly broadens Congress' power.

Not quite.

McCulloch held that the N&P Clause grants Congress wide latitude to enact legislation promoting an end within the scope of one of its enumerated powers, not merely for any "legitimate end" the Congress thinks to be necessary and proper. In that particular case, Congress used its Taxing and Spending Clause power to create the US Bank.

If Article I does not grant Congress the command power to direct the deployment of the military and military campaigns, then the Congress may not use the N&P Clause to create such a power for itself or to assume the President's CiC power.

Indeed, Professor Amar notes in his book America's Constitution: A Biography" (pp. 110-113) that the drafters of the Constitution limited Congress to specific enumerated powers so the N&P Clause could not be used as a pretext to exceed its Article I mandate. Amar noted that Justice Marshall instructed in 1819 that "Congress could not under the pretext of executing its power, pass laws not entrusted to government."
 

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No, Mark, the claim is a bit different -- it is one of what happens in cases of overlapping powers: The claim is that the CINC has the power to act unilaterally (e.g., to make rules for courts martial; to make decisions about how to fight a war; etc.); that Congress also has the power to regulate such matters; and that in *some* of the areas of overlapping authority, the CINC prevails over inconsistent statutory or treaty-based regulation.

I'm with up to the last clause. If the CinC prevails, that's (to me) just another way to say that the President has power to dispense with the laws (my category 2, above).

The other way to look at it is to say that Congress has overstepped its Art. I power. In this sense, it's identical to my category 1 above.

I see it as similar to the reserved powers of the states or the grant of judicial power to the Supreme Court. If Congress passes an unconstitutional law -- say, to require a state to expend money -- we don't say "Congress has power to pass the law but the state has reserved power which prevails", we say "Congress doesn't have the power to pass that statute".

Even when it comes to the commerce clause, I'd see it the same way. For example, we could say that Congress and the states both have power to regulate commerce. But when we get to the point where there's a conflict, one or the other must prevail. When that happens, we don't say "Congress has power but the state has countervailing power which prevails", we say that Congress lacked the power to pass that statute.

I do see your point, I'd just put it in a different definitional box. Either way, I think Dilan's argument covers it.
 

The more I think about this, the more I'm convinced that the idea of "overlapping" powers isn't very helpful. When we say powers "overlap", what we really mean is that we haven't mapped out the boundaries very precisely.

If two different branches of government potentially have power, at some point there will be a conflict between them. When there is, we resolve it by saying that one or the other prevails. From that point on, we no longer say that their powers "overlap" on that issue. Instead, we say that the loser has no power to that extent.

Shorter version: every case actually involves my category 1, above; we just haven't yet defined the boundary properly.
 

mark:

I don't think much of the Jackson categories either.

Category One opines that: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."

This is a political not a legal argument. If Article II grants the power, that is all the President needs to act with the full authority of the Constitution.

Category Two opines that: "When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain."

The fact that a power is shared does not mean that the President has any less authority to act pursuant to Article II in the absence of congressional action.

Finally, Category Three opines that: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Frankly, I have trouble making heads or tails of this noncommittal mish mash. I suspect that Jackson, who wrote some pretty pro Executive opinions while serving in the FDR Administration, is simply muddying up the issue on behalf of the Executive.

There is a rule of statutory construction which holds that specific provisions take precedence over general provisions. Article I provides specific provisions enumerating the powers of Congress while Article II only grants general executive and CiC powers. I would suggest that Congress exercising a specific enumerated power always wins a conflict with the President exercising his or her general powers.

There is no "low ebb" in favor of the Executive. There is not tide at all. So long as Congress is acting within its Article I powers, it prevails in conflicts with the executive...period.

I have never bought into the unsupported claims by the Yoo crowd that the Executive has the power to ignore a constitutional act of Congress, no matter how wrong headed it may seem to them.

That is why I sound like a broken record arguing that the real issue in all of these seperation of powers arguments we have had over FISA and other attempts by Congress to exercise what appears to be command power is whether there is an enumerate provision of Article I which grants Congress the power to so act. I suggest the argument begins and ends here.
 

The President has NO POWER to ignore or dispense with laws enacted pursuant to enumerated Article I powers. However, the President may, and as chief law enforcement officer must, ignore unconstitutional and unlawful acts of Congress which exceed its Article I powers.

This makes no sense to me. How exactly does the Executive branch derive a judgement as to legality and/or Constitutionality of a particular law? Does the President have a Judicial branch in its pocket? That is, if the President's office wants to disregard a particular law, I don't see how it has the power to unilaterally decide its Constitutionality. I always thought that was a Judicial function.
 

For the record, now that I'm further along in a more detailed reading, I'll note that the Lincoln quote in my original post does appear in the article at fn. 198.
 

eric said...

BD: The President has NO POWER to ignore or dispense with laws enacted pursuant to enumerated Article I powers. However, the President may, and as chief law enforcement officer must, ignore unconstitutional and unlawful acts of Congress which exceed its Article I powers.

This makes no sense to me. How exactly does the Executive branch derive a judgement as to legality and/or Constitutionality of a particular law? Does the President have a Judicial branch in its pocket?

The law is not some mysterious secret code that only lawyers in suits and black robes have the cipher to understand. Both Congress and the Executive have to and do interpret laws constantly to do their jobs.

That is, if the President's office wants to disregard a particular law, I don't see how it has the power to unilaterally decide its Constitutionality. I always thought that was a Judicial function.

The Judiciary gets the final say if a case or controversy raising the issue comes before them. Meanwhile, the elected branches have jobs to do.
 

The Judiciary gets the final say if a case or controversy raising the issue comes before them. Meanwhile, the elected branches have jobs to do.

As does the local bank-robber. Until some court rules that what he did was illegal, he's welcome to his own "interpretation" of the U.S. Code, and if he's lucky, some court just ... might ... see things his way, you know, "exigent circumstances; the doggy was starving..." and all that.

The problem that arises when Commander Codpiece breaks the law is that his consiglieres infest the police department too. At which point, there's little left todo but impeach him.

If an alleged felony missing at least one of three essential elements of the crime (and which the managers never bothered to prove) is worthy of an impeachment, then multiple and willful violations of 50 USC § 1809 and 18 USC § 2340A ought to suffice.

Cheers,
 

"Bart" DePalma:

That is why I sound like a broken record arguing that the real issue in all of these seperation of powers arguments we have had over FISA and other attempts by Congress to exercise what appears to be command power is whether there is an enumerate provision of Article I which grants Congress the power to so act....

You sound like a broken record because you are a broken record, repeating the same unsupported and tiring 2 second snippet about "command power" (or some such "directing" crapola) but have yet to show a single case where any of the vast corpus of Title 10 of the U.S. Code has ever been held to violate this "command" authority.

... I suggest the argument begins and ends here.

In your case, sadly, the "argument" does "begin and end" there. Therefore, we wish you'd "end" before "beginning" for the thirty-seventh time....

Cheers,
 

arne:

You had a really good idea taking your commentary about my posts to your blog.

Keep it up.
 

"Bart' DePalma:

You had a really good idea taking your commentary about my posts to your blog.

Keep it up.

As usual, you miss the point. I had a real good idea about you taking your commentary elsewhere (and volunteered my blog, where there's someone that knows how to lay down some ground rules for such commentary).

Why don't you accept the offer? There's actually other readers there that haven't heard your "arguments" thirty-seven times already (and dismissed them that many times), and maybe someone will even agree with you. Who knows, a whole world awaits!

Cheers,
 

Bart: "You had a really good idea taking your commentary about my posts to your blog.

Keep it up."

On the heels of, and still basking in the warm glow of, our rapprochement over music and fashion, I think it only fair to say in Arne's defense, you've got it coming. Sure, Arne rides you like a wet, soggy diaper. But you have, how to say this gently, not always held yourself to the highest standards of discourse. To date I'm still waiting for a simple statement from you as to which text in the MCA prevents and precludes it's use, good faith or otherwise, against citizens such as you and me. We all understand it's supposed to be aimed at unlawful alien enemy combatants, but the point is that nothing prevents or precludes its application "in error" to political dissidents or any other type of trouble maker, and once such an "error" has been made there is no hope of extricating oneself from the grip of the MCA (in your own words, the only reason to even hold a commission would be to levy a death sentence.) Such laws ought not be promulgated, much less should they be so staunchly defended by any responsible member of the bar. So, please, if you think of Arne as trolling you, do unto him as you would have done unto you by those who consider(ed) you naught but a troll: quietly leave him be. And maybe look to the beam in your own eye?

Peace.
 

Sigh. Arne, Robert, et al.: It's really amazing how when Bart provokes, everyone so predictably takes the bait. This blog is not about Bart, and it really doesn't matter whether he's been consistent or persuasive -- there's no obligation for blog commenters to be either. And, in this case anyway, Bart's impulse, if not his specifics, is actually important, because it reflects a familiar assumption (one we discuss in Part III-C of the first article).

So, once again, if you think Bart or any other commenter is off-base, tendentious, or disingenuous, please simply *ignore* him or her, and stick to the merits, so that we can encourage a worthwhile discussion.

Thanks
 

Baghdad, you need to update your blog with my latest post.

Marty, if you don't have a problem with Baghdad using your blog for rightwingnut propaganda, you shouldn't have a problem with people responding to him.
 

Marty,

Sorry to make you sigh, and hope you won't take this reply amiss. I don't know if you saw it, but on the recent "Cult of Personality" thread (Jack's post titled, "Culture Club") Bart and I actually had a moment of collegiality. Believe it or not, it's in that spirit that I've addressed Bart here, provoking your sigh, and in the "Crisis in Constitutional Law" thread, and have also addressed Charles in the "Legal Blogosphere..." thread. As I said in my comments to Charles, Bart is engaging. As has been pointed out by more than one of the blog hosts, Bart is neither always in the wrong nor always egregiously misbehaved. And while to my eye the nascent community of Balkinzation commentors might be better served by a slightly less laissez faire approach to moderation, that remains a matter for the discretion of my hosts.

Still, it's a touch disheartening that what provokes your sigh is our inability to refrain from engaging an intentionally provocative presence yet you seem to have no such response to the provocateur himself. I don't really know how to address that, but it seems a touch uneven. After all, if part of the impetus of the blog is to counter the nonsense of the Administration and Neo-Conservative movement, isn't it to be expected that the commentors will follow suit as best they can? Is telling us to just ignore Bart really so different from someone telling liberal legal academicians to just ignore the Administration and it's apologists?

All the worse for my gentle sensibilities that you chose my one post, after 36 by others on this thread, over which to sigh. I really don't know what to make of that, but, again, it seems a touch uneven.
 

Pleasure of love lasts but a moment. Pain of love lasts a lifetime.
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