Random commentary and senseless acts of blogging.
The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
Prisoners of Azkaban
Tuesday, December 20, 2005
Bush is placing his right to order wireless surveillance largely on his implicit powers as commander in chief. As he stated in yesterday's press conference:
Now, having suggested this idea, I then, obviously, went to the question, is it legal to do so? I am -- I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.
Several lawyers and actual experts have weighed in on the question of whether the statutory authorization claim is valid. Short answer: dubious, at best. But it's useful to look at the Constitution and examine how broad the President's basic powers are.
We have grown used to the Imperial Presidency, which exercises sweeping authority over foreign policy. Most of us can't remember any other time. But what is striking when you go back to the original text is how limited the president's Article II powers really are.
The authorization passed after 9/11 is the closest the Congress has come to a formal declaration of war since 1941; even before that I don't believe the Congress has ever passed a declaration except at the request of the current President. But the tradition of the President requesting a declaration of war isn't found in the Constitution, which grants the power exclusively to Congress.
The President does have power to negotiate treaties, but they have no legal force until approved by the Senate. And the President cannot name Ambassadors without the advice and consent of the Senate, except for temporary appointments made when the Senate is in recess. (That power has been abused by Bush and previous Presidents to make appointments any time Congress leaves town, even if only for a few days.)
The only power in foreign affairs that the President can exercise entirely on his own is to "receive Ambassadors and other public Ministers".
The President doesn't even have a clear Article II right to control the Executive departments. He chooses (with the Senate) their senior personnel and "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". It is perhaps this phrase, rarely cited, that shows most clearly the vast gulf between the modern Presidency and the Founders's intent. It seems distinctly unimpressive, making the Presidency less like an imperial office than a teacher asigning homework. And yet it was spelled out in the Constituion; feeble as it is, it must have seemed to those who wrote this a significant branch of the office's authority. Article II doesn't even give the President explicit authority to issue orders to Executive officers; that authority implicitly came in when the President established the right to dismiss (also not granted in article II) as well as hire.
Of course the President is made Commander in Chief of the armed forces and the state militias when in federal service, but that power is still highly qualified. Congress is given exclusive authority to raise funds for the military, with the explicit provision that such funds may not cover more than two years, a limitation explicitly made on no other expenditures.
Congress is granted other powers which make it plain that Congress is expected to exercise extensive authority over the military. These include:
Nothing is less likely than that the Founders would ever have viewed the military as the private plaything of the President, to control free of Congressional influence. Blocking the power to maintain a standing army under the King's personal control was at the center of the crisis that led to the English Civil War in 1640. The Founders looking at Europe in the late 18th Century would have seen many examples, starting with their ally France, of how unfettered executive control over a standing army could drive an entire nation into slavery.
Returning to the 21st Century, the Bush administration, which is so famously dedicated to an Originalist interpretation of the Constitution, seems to be remarkably uninterested in following it's own prescription. In only one of many Bush claims of neo-monarchic powers, the Bybee memo, a DoJ attorney asserted that:
In the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A [banning torture] may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war....
Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign. As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply Section 2340A in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional."
Never mind the explicit comstitutional provisions which give Congress extensive authority over the armed forces, including the capture of prisoners, and the sweeping grant of the right to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers". The President does what he wants and is empowered, under this theory, to ignore the laws.
The Founders didn't trust executive authority, and used Article I to bind it in two fundamental ways: the right of the Congress to enact laws which the President is required to "take care... be faithfully executed" and Congressional authority over expenditures. Along with his express disregard for law, Bush has also ignored Congress's other major check, when he used money specifically appropriated for Afghanistan to prepare his war against Iraq. And, oh yes, he's asserted the power to arrest American citizens and hold them for long periods, perhaps indefinitely, without charges or judicial oversight. If the President really can behave in this way, the anti-Federalists were right and the position is essentailly that of an elected monarch.