Why Should We be "Boxed In" by the Constitution and Laws of the United States?

Marty Lederman

In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's chosen methods of fighting the war on terror are consistent with the Constitution and laws of the United States. (Thanks to Howard Bashman for the link.)

Referring to what he obviously views as the misguided decisions of the Supreme Court in Hamdan and Judge Taylor in ACLU v. NSA, Posner complains that "we are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court." He further objects that the majority of the Hamdan Court was "unsympathetic to arguments that our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs." He hopes that the Court will eventually "bow" to the President's judgment, but warns that "we cannot wait for that to happen." Presumably this is a not-so-veiled suggestion that Congress should attempt to strip the federal courts of jurisdiction to hear claims challenging the legality of the Executive's conduct.

Regardless of its merits, Judge Posner's complaint is slightly off-the-mark in one important respect: The Court in Hamdan did not rule that the President's commissions were inconsistent with an 18th-Century Constitution -- it ruled that the commissions violated statutes enacted by a 20th-Century Congress (and a treaty ratified by a 20th-Century Senate), with the approval of 20th Century Presidents. And although Judge Taylor's decision was largely based on the Fourth Amendment, the central and clear problem with the NSA program (which Judge Taylor also emphasized, albeit not as much as she should have) is that it is in violation of another statute, FISA, which was carefully enacted, over a long period of time and after extensive deliberation and investigation of past abuses, by yet another (late) 20th-Century Congress, with the approbation of two late-20th-Century Presidents.

The courts in these cases, in another words, are merely requiring the Executive branch to follow the law enacted by the political branches. Why on earth should Congress seek to strip the courts of the power to ensure that its own enactments are honored? Judge Posner does not say. (He obviously is not fond of those statutes, enacted as they were decades before 9/11/01; but if he's right that they're obsolete, why is the proper remedy not a legislative (and public) debate about whether and how to amend them to respond to modern exigencies?)

Judge Posner's principal complaint is that it is "strange" to "confid[e] so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security."

Of course, it is not "strange" at all to give federal courts the jurisdiction to adjudicate whether the President is abiding by duly enacted laws in times of war. As countless Supreme Court cases challenging Executive conduct during war will attest, that has been the ordinary course of things since the founding. What would be strange, and fairly unprecedented, would be for Congress to attempt to strip the courts of such power, and thereby allow the President free reign to mangle or ignore congressionally enacted statutes as he sees fit.

Contrary to Judge Posner's suggestion, the courts in these and related cases are not simply second-guessing the President on "issues of national security," such as by overturning his judgments as to the extent of a threat or the efficacy of an Executive response to the threat. It's not as if five Justices of the Supreme Court, or Judge Taylor, disagree with the President on the nature of the Al Qaeda threat, on how effective the NSA surveillance program would be at detecting terrorists, or at how efficient it would be to convict detainees under the President's military commissions. Indeed, there's no reason to think that the judges would not substantially agree with the President on all such factual assessments.

Instead, what these courts are doing is vindicating the judgments that Congress has made, in conjunction with the President, on questions relating to the proper balance between addressing an external threat and preserving constitutional, statutory, and treaty-based protections of individuals.

It appears not even to occur to Judge Posner that perhaps the Executive's judgments during a time of war might occasionally be less than ideal, not only with respect to preserving individual rights, but also with regard to how to best defeat the enemy -- and that the Executive's judgments will be most suspect, and least reliable, where they are made and implemented in secret, and in the heat of battle, and are not subject to the ordinary checks and balances of our constitutional system. It is conceivable, mind you, that, left to his own devices, a President might actually make poor decisions concerning how best to prosecute a war. (Just hypothetically speaking, of course.) There is, in other words, some practical value in prosecuting a war "by the books," i.e., in accord with the rule of law. Or so our "18th Century Constitution" presumes, anyway. As Justice Kennedy explained in Hamdan, the Constitution's structure of war powers stresses "the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms":

Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment. . . . If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.

[UPDATE: I should clarify that Judge Posner does not expressly advocate unchecked Executive authority. In this Op-Ed and in other places, he has proposed a new statute that would theoretically minimize potential abuses of warrantless surveillance, "without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance." This is certainly a proposal worthy of serious consideration in Congress. Three questions, however: (1) Why exclude judicial review to ensure that the President at least abides by such requirements? (2) This Administration would never agree to provide Congress with "the names of persons whose communications are intercepted (and the reasons for and results of the interception)" -- indeed, they would likely contend that such a requirement is unconstitutional. Therefore either the Posner proposal would be a nonstarter (because of a veto threat), or there would be a good chance of Executive nonenforcement. (3) Until the day that Congress enacts such a law, and the Executive abides by it, what is wrong with permitting the courts to hold the President to the laws that are currently in place?]
Posted 1:54 PM by Marty Lederman [link]