How does Article II lead to the unchecked executive?

February 15, 2006 2:53 PM

What is the reasoning that says Article II of the U.S. Constitution gives the President blanket powers in matters of "national security"?

Article II § 2 Para. 1 says:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

There's nothing in there about "war" or "national security." So, what is the legal argument for the President's ability to wiretap American citizens without warrants, detain American citizens with trial, torture suspects in contravention of international law, etc? I'm not looking for snark here, I'm curious how the actual text of the Constitution relates to the legal argument being put forth.

posted by aaronetc to law & government (20 comments total)

Just to play devil's advocate: there's nothing in the constution that allows judicial review by SCOTUS.
posted by oaf at 2:57 PM on February 15, 2006

The relevant annotations at FindLaw. It all comes out of "commander in chief", via a very twisty path.
posted by smackfu at 3:26 PM on February 15, 2006

David Cole, "What Bush Wants to Hear":

Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime—even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.

Ronald Dworkin, "The Strange Case of Judge Alito":

[Alito] was equally cagey about his past statements on what might turn out to be an even more important constitutional issue: the president's claimed power to ignore congressional statutes in conducting what he considers military operations. A number of senators were particularly worried by Alito's speech to the ultra-conservative Federalist Society in 2000 when he was a sitting judge, in which he said that "when I was in [the Justice Department's Office of Legal Counsel]...we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure.... The case for a unitary executive seems, if anything, stronger today than it was in the 18th Century."

The phrase "unitary executive" has been much used by conservatives anxious to increase the president's power, particularly in the "war on terrorism." Justice Thomas, for example, appealed to the doctrine to justify his dissent from the Court's refusal, in the Hamdi case, to allow the president unrestricted discretion to hold prisoners indefinitely as enemy combatants. ...

posted by russilwvong at 3:30 PM on February 15, 2006

I think smackfu is right. Bush's advisors are arguing in a very broad definition of "commander in chief."

But at the end of the day, the legal reasoning is bunk, so you can only go so far backing up the Bush position with legal reasoning.
posted by teece at 3:35 PM on February 15, 2006

One thing to note is that you're framing the powers very broadly in your question; by all accounts, the actual use of these powers by the President is much more narrowly targeted towards those who intend the country ill. This is the disctinction that makes the differenc.

There is a fairly detailed analysis of some of these issues here, citing the rulings from the various times these issues have been brought before the Supreme Court.
posted by bemis at 3:36 PM on February 15, 2006

Doesn't the phrase "called into ... actual service" mean war?
Not that I am advocating etc. etc.
posted by misterbrandt at 3:55 PM on February 15, 2006

Doesn't the phrase "called into ... actual service" mean war?

It seems pretty clear they're talking about the militia (or what's come to be the National Guard) in that section. I'd read it to mean nationalizing the Federal Guard. It could be war or it could be responding to a hurricane. Ultimately though, the national guard is under the rule of the state until the feds need them, and then the President is ultimately in charge.
posted by willnot at 4:01 PM on February 15, 2006

Orin Kerr over at the Volokh Conspiracy has written a lot about this, and is about as close to an expert on 4th Amendment search & seizure law as there can be.

But if you want to know the administration's take on it, you can't do any better than read their public explanations. Read Gonzales' remarks at Georgetown, for instance.

It's not true that they're arguing their powers are strictly under Article II. That reasoning was struck down in the Steel Seizure cases, where Truman, during the Korean war, seized control of steel mills during a labor strike. Basically the court said, the President can do something like this only if it is authorized by Congress or by the Constitution.

So, with that case in mind, the administration is saying, but we do have the authorization of Congress--the Authorization for the Use of Military Force, which says "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

Did Congress intend the AUMF to give the President the power to conduct warrantless eavesdropping in the United States? Most legal authorities will say that's a stretch, but no surprise, the administration says that's exactly what Congress meant to do, and that Congress intended it to supercede any requirements for warrants under FISA.

From Gonzales' remarks:
We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President's Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President's constitutional authority today.
posted by Brian James at 4:06 PM on February 15, 2006

willnot, I was taking Army, Navy and milita as the "antecedents" to (predicates? of) "actual service" but your reading is probably correct.
posted by misterbrandt at 4:10 PM on February 15, 2006

Brian James eloquently presents the Administration argument. Too bad there are already numerous scholarly demolishments of it.

Go ahead and read the AUMF, linked previously. It discusses only the Armed Forces, attacking "terrorists". Not much in there about telling the NSA to snoop on every U.S. citizens' email and phone calls.

Footnote 4 is damning. What Gonzales is saying is that the Administration knew what they are doing is illegal, they considered trying to get Congress to change the law to make it legal, and they were told by Congress that was out of the question. This shows that they know their own argument is bullshit. Even they don't believe it.

There is NO coherent argument for the President breaking a law that was put in place specifically to make illegal what he is doing. One can make up whatever one wants, naturally - "Because the budget is written on paper, therefore we can wiretap" - "Look at the Wookie! That means we can wiretap!" - or whatever else one wants. That is what John Yoo and Albert Gonzales have done. Their argument doesn't make any sense, and frankly, it isn't really intended to. It's just a smokescreen for creating some uncertainty as to whether or not the President's actions are REALLY illegal. If questions like this are posted and discussed, the argument has succeeded in its goal.
posted by jellicle at 4:28 PM on February 15, 2006

AFAIK, the president cannot "call himself into service". It usually takes someone outside of his authroity like Congress.
posted by JJ86 at 4:54 PM on February 15, 2006

If questions like this are posted and discussed, the argument has succeeded in its goal.

Wow, jellicle. I was with you up until that point. Ever hear of a free and open discussion? If you had your way, the administration would posit their arguments, everyone else would have theirs, and anyone in the middle who attempted to, god forbid, use reason to evaluate the two would have already succumbed to their delicious, sugary trap, so it's better to just cover your ears saying lalalalala and pretend you don't hear. And I assume you oppose the Bush administration?
posted by Brian James at 5:03 PM on February 15, 2006

The passage from the Authorization for the Use of Military Force that Brian James cites is in a whereas clause, which isn't the part that counts:

Under traditional principles of statutory construction, these provisions have no binding legal effect. Only material that comes after the so-called "resolving clause"--"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled"--can have any operative effect. Material set out in a whereas clause is purely precatory. It may be relevant for the purpose of clarifying ambiguities in a statute's legally operative terms, but in and of itself such a provision can confer no legal right or obligation.

Also, this is the significant part of the Authorization for Use of Military Force:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The way I read it, this only authorizes military force against nations or organizations that were either involved in the September 11 attacks or harbored organizations or persons that were involved in the attacks.

The Authorization for Use of Military Force also says "Nothing in this resolution supercedes any requirement of the War Powers Resolution."
posted by kirkaracha at 5:12 PM on February 15, 2006

Brian James - you misunderstand my post, probably because you think it was a criticism of you (it wasn't).

I'm simply saying the whole intent of the Administration's argument is to create discussions like this. Where people are considering whether or not the actions in question are actually illegal. Because if you're considering that - if the question is not firmly decided - then public opinion can't progress to the next stage, which is "so what should be done about it?". It's classic FUD. Recognizing the tactic, and minimizing the distraction created thereby, is an important thing in public discourse. There are literally hundreds of areas where the Bush Administration has deployed unserious arguments (arguments that even they don't believe for one second) in attempts, mostly successful, to distract the public and chattering classes from important issues of the day and to cast doubt on areas where there is honestly no doubt. It's a variant of the campaign smear attack - ("Did Candidate X rape and kill three young boys? There's no evidence for it, but it might have happened - let's have a free and open discussion about it!") - not an honest argument, and it deserves the same consideration, which is to say, none.
posted by jellicle at 5:29 PM on February 15, 2006

As kirkaracha quotes it, the resolution says the President is authorized to use "all necessary and appropriate force" against anyone the President determines is a member of Al Qaeda.

So I think the administration's real argument is:

"You mean, you (Congress) are telling me I can go overseas and kill as many people as I want, but I can't wiretap a US citizen that I have determined is a member of al Qaeda? How does that make any sense?"

And complex or simple legal attacks on this reasoning aside, at face value the President at least has a point which is that the legislative branch has presented him with two conflicting legal authorizations, and he chose to go with the one that conforms to his intentions.

However the courts resolve the issue, I'm sure it will prove to be a lesson to the legislative branch that will guide how they might write a future similar resolution in the future.
posted by extrabox at 6:46 PM on February 15, 2006

jellicle, where in my question do you see me wondering if this program is legal? Clearly, it is not. That doesn't mean they don't have some tortured (pun intended) reasoning which they might put forth when pressed for a basis in law. The point of the question is to find out what that reasoning is.
posted by aaronetc at 8:45 PM on February 15, 2006

And complex or simple legal attacks on this reasoning aside, at face value the President at least has a point which is that the legislative branch has presented him with two conflicting legal authorizations

Nonsense. In his role as commander in chief, of course he can kill terrorists threatening the US. In his role as commander in chief, though, he is not given permission to violate the Constitution willy-nilly. It's patently absurd to assume that Bush's powers as boss of the army grant him the power to do whatever he wants in the US.

Bush can not be at war with US citizens, so his notion that his role as commander in chief grants him a way to avoid the 4th Amendment is stupid.

It's not even slightly contradictory. Really, there is no honest case to be made for GWB here. It's important not to lose sight of that. The whole thing is pure FUD, as mentioned above.
posted by teece at 8:45 PM on February 15, 2006

Teece, if a US citizen is an avowed member of al Qaeda, and they are in planning or implementing military action against the US, why couldn't "Bush" / America be at war with this person?

Would the fact that the person was a US citizen mean automatically that it is a criminal matter, not a war matter?

What was the US Civil War? How did Lincoln do it?

It just seems a lucky twist of fate that most of America's wars have not been on American soil.
posted by extrabox at 7:25 AM on February 16, 2006

If we were actually "at war," legally, with al Qaeda, that person would be guilty of treason. QED.
posted by aaronetc at 10:42 AM on February 16, 2006

And also, the FISA court would be happy to provide a warrant for that person.
posted by aaronetc at 10:48 AM on February 16, 2006