Tuesday, February 14, 2006

Congress's Authority to Limit President's War Power

Professor Cole has written this on Slate. I imagine at least 50% of the Federalist Society members agree with him.


Misha Tseytlin said...

I guess what I do not know what this other supposedly 50% of the Federalist Society thinks on this. Is it your position (Charles- i will take you as the spokesmen for them for now), that the president can do almost anything that is incident to war-making under his Article II power? Is that under the same kind of broad reading of power that we currently have under the Commerce Clause?(surely, the national economic is incident to war making- so I guess the president could regulate our economy as part of his commander-in-chief power?). What limits would you have, if any, on presidential power? Where would you stopping point be? All those questions are also putting aside the explicit disagreement with Congress on this.

The bottom line is that the Bush administration is making a huge power grab- a power grab that will change the balance of power under our Constitution. We could just acquiesce to supposed necessity, as those in the 1930s did and we can have what Bruce Ackerman calls a constitutional moment. This way, our Constitution will be once again amended without amendment. We can add to the plenary power of Congress under the Commerce Clause the plenary power of the executive in the probably indefinite war on terror. In that world, the question will be not whether the federal government has the power to intrude into ever part of your life- but whether it is the Congress, pursuant to its Commerce Clause Power, or the President, pursuant to his Commander in Chief power, who has the biggest claim to your liberty.

This is not the Constitution our framers wrote and not a Constitution conducive to protecting liberty. We, federalists, are supposed to be the defenders of that Constitution.

Charles Iragui said...


My "50%" comment said that I believed "at least" half of our Fed Soc members would agree with David Cole (certainly not a Fed Soc devotee) and not with me, J. Li, Andrew McCarthy or Alberto Gonzales. A failed attempt at humility apparently. You in fact seem to agree with me that most, if not a strong majority of Fed Soc members, are in the Cole camp.

While we may be wrong, this Bush "grab" is not, in its self-image, like the Living Constitution argument of the 1930's. It is rather very much an Originalist claim about the powers that the Executive was conceived to have. The Executive was supposed to be able to act with a dispatch beyond the capacity of the other branches. Recess nominations exemplify the kind of independent action with which the president was entrusted. After the fact the legislative branch could REACT to what the president HAD done, but it could not stop him from exercising the powers that the Constitution had accorded him.

This is not, therefore, amending the Constitution, but rather preventing Congress from amending it through simple legislation. Most of the fear of Congressional power comes from usurpation of STATE authority. However, Congress, like any organization, will tend toward self-agrandizement.

Is President Bush encroaching on Congress's powers? This must be your contention. Fine. But don't go overboard in characterizing the Admin's position. More plausible is that the Hamiltonian aggressive executive is in some real constitutional tension with the Madisonian-Jeffersonian rule by consent of the governed.

Roman "dictators" were leaders elected and given broad executive powers for a limited amount of time. This model undoubtedly influenced the Founders' thinking. External threats were pervasive at the time the Constitution was written, just as they are now...


Misha Tseytlin said...

Charles, I think I was unclear, so I will restate my point.

I am not so much worried that Bush is usurping Congress' authority as I think he is making a claim to plenary power, writ large. In that way, my argument is different from Cole's in this article. What I am much more worried about is reading words in the constitution like "commerce clause" and "commander in cheif" to imply almost unlimited power over every aspect of our lives.

Charles Iragui said...


Federalism cannot be an effort to protect us from "unlimited power over every aspect of our lives". It simply protects constituent states' powers. Most notably, it was crucial to clinch agreement to the Constitution from the southern states... James Wilson was for this reason (slavery) not a great fan of the enumerated powers (see Chisolm). Nor was Madison.

States, after all, were left ALL other, unenumerated powers.

What does protect our individual rights? The Separation of Powers, the Bill of Rights (including the Natural Rights 9th Am), the obligation that States honor contracts, maintain republican governments, etc. The 14th Amendment corrected the deficiency of the original Constitution by imposing the Bill of Rights on the States.

The Commerce Clause has been used to amend away the enumerated powers. This is certainly a power grab by the federal government (all branches). But this power usurpation has seemingly nothing in common with the current debate. The CC has been abused to transfer power from states to the federal government, so that it could do what states COULD LEGALLY DO THEMSELVES. The CC argument is independent of the argument that individuals have natural rights that cannot be infringed.

Bush, however, is being accused of: 1) discarding the Bill of Rights (your claim?); or 2) encroaching upon Congressional prerogatives to legislate (Cole claim, also not about human rights). In only the general sense that all constitutional debates involve the interpretation of constitutional terms are the CC and NSA debates related.

What plenary power has Bush claimed? Certainly not a power to do anything that he fancies. His actions must in fact be aimed at repelling attack. What limiting principle do you propose? In what way have the Bill of Rights been violated?

I understand the Cole criticism. I do not understand yours.


Misha Tseytlin said...

Charles, I think you fundamentally misunderstand the point of federalism. It is NOT to protect states (otherwise it would be waivable). Rather, as Justice O'Connor accurately said in U.S. v. NY- “[T]he Constitution divides authority between federal and state governments for the protection of individuals.” That is, the concentration of power in the hands of the federal government is bad for individual liberty.

This misunderstanding is very fundamental. That is, in Lopez- it was NOT the state of Texas that had its rights violated- it was the student Lopez. Similarly, in the NSA wiretapping situation, it is NOT Congress that is having its rights violated- it is individuals who are being subject to wiretaps by a president who has no constitutional authority to wiretap them.

And this is where the commerce clause and the commander in chief problems link (note, my argument here has NOTHING to do with the Bill of Rights). The Congress can only act persuant to its Section 8 powers- when it takes away liberty from an individual by acting not within one of his powers- it is depriving him of liberty without constitutional authority. As a result, the federal government had no right to subject Mr. Lopez to federal law for bringing a gun into school.

Similarly, lets stick to JUST the Article II argument, since the AUMF argument is so bogus, if the president is claiming authority to wiretap Americans based ONLY upon his power as commander in chief- he is over-reaching his powers to take away individual liberty in the same way as the congress does in the commerce clause context.

That is, if you read "commerce clause" broadly enough- you can get any regulation of liberty you want. If you read "commander in chief" broadly enough, you can get the same result.

Note, carefully, that this argument is completely about powers and not about Bill of Rights limits- which are an additional barrier. That is, even if it can be conclusively shown than the NSA wiretapping violates no 4th amendment rights, it can be unconstitutional because the president's authority under Article II is not so broad.

Bush's theory of Article II is that he can do anything to prevent an attack. He wants that power to be read as broadly as possible, just as congress wants its commerce clause power to be read as broadly as possible. What i am saying is that either reading swallows the limited nature of our federal government. That is my argument.

Charles Iragui said...


Again, if the president IN FACT has taken action to repell attack, how has he violated his power to... repell attack? There must be ANOTHER part of the Constitution (eg Bill of Rights; Congress's power to legislate: raise armies, appropriate funds) that limits his actions in this acknowledged presidential power.

Separation of Powers and Federalism, I agree, protect individual rights. However, I think they do so prudentially, not directly. By making gov action more difficult, they systemically prevent capricious, unchecked power.

However, it is strange to say that Lopez' "rights were violated". The state could have promulgated the exactly same law and no inalienable right would have been violated.

The enumerated powers are not a moral imperative but rather a practical measure. Unitary states are not tyranny. Various levels of government are a good idea and, at the limits, practically necessary for good governance.


Charles Iragui said...

J. Li,

I also think that Congress can withdraw means, to some extent, from the president. It can always withdraw funds, which amounts to NEARLY the same thing.

It is one thing to say that no funds may be expended in assistance of the Contra movement in Nicaragua (Reagan admin crisis). It is another to say that unspecified future dangers shall be confronted in a specific manner.

In this latter scenario, Congress's power must be much less. As I mentioned in an earlier comment, laws forbidding wanton acts, for instance, would seem quite reasonable (though unnecessary as the Executive branch itself promulgated military law). Shouldn't courts show UNEQUAL deference to Executive and Legislative branches in this sphere?

Youngstown could be read in just this way: though the president is predominant, his power is not unlimited. Youngstown concerned an action quite indirect to attack. It is not just the "low ebb" BECAUSE Congress acted contrary to the president's desired action but the domestic sphere of Congress's action. In the case of the NSA program, the relation to attack is clear, direct.


PS: In any case, Congressional action in Youngstown might also have been superfluous. So attenuated were the President's actions from the war in Korea that one could well have complained that the presidential war power was being abused; his actions were not necessary or had other motives. I don't know the facts well, but isn't this kind of fact-finding appropriate for a court (see McCulloch)?