While President Bush argues he has absolute power, a closer look reveals he has no more power than a
manager at McDonald's
The U.S. Justice Department sent a 42-page memo to Congress last week that lays out a legal defense of President Bush's warrantless eavesdropping on the international calls and e-mails of U.S. citizens. The Bush Administration argues that:
1) The president has inherent war powers under the Constitution and these inherent war powers include the right to spy on U.S. citizens without warrants;
2) Whatever laws Congress has passed that limits these powers, such as the 1978 Foreign Intelligence Surveillance Act (FISA), are unconstitutional; and
3) The president's power to protect the American people by spying on them without warrants was reaffirmed when Congress passed a resolution in October 2001 authorizing the president to use military force against al Qaeda.
The memo is as laughable as it is frightening.
Would You Like Fries with That?
The Justice Department's first claim is hotly contested by constitutional scholars on many levels. For starters, it is hard to argue that the Constitution gives the president any inherent war powers, let alone unlimited ones. Even a casual reading of the debates surrounding the adoption of the Constitution shows that our founding fathers feared executive power. The chief architect of the Constitution, James Madison was explicit: executive powers ''do not include the rights of war and peace...but should be confined and defined -- if large we should have the evils of elected monarchies.''
The only mention of any war-related presidential power in the Constitution is Article II, Section 2, which declares that the "president should be the Commander in Chief of the Army and Navy." In contrast, the Constitution gives Congress all other significant war powers, including the power to "raise and support armies"; "provide and maintain a Navy"; "make Rules for the Government and Regulation of the land and naval Forces"; "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"; "provide for the common Defense"; "declare war"; and "lay and collect Taxes" and "borrow money" for war operations.
The president is, thus, constitutionally limited to simply being the Commander in Chief of the armed forces. This is similar to being a manager at McDonald's. The manager has the power to hire and fire employees and manage the day-to-day operations of the business, but he ultimately reports to a higher power that tells him what he can and cannot do. (A better analogy might be that the president is the CEO of the army, but Congress is the Board of Directors.) It is hard to read the Constitution in any other way than this. The president has no inherent war powers.
Even assuming that the Constitution does give the president inherent war powers, it is absurd to claim that those powers are unlimited. The Constitution explicitly gives Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution the [Congressional] powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (italics mine). While the president manages the Department of Defense and other agencies, it is Congress that gives these agencies life and defines what they can and cannot do. Congress can pass legislation prohibiting agencies from spying on citizens without warrants and there is nothing the president can do about it.
More importantly, the Constitution's declaration that the president is Commander in Chief of the military does not mean that the president can violate other sections of the Constitution. Claiming that the president can ignore the 4th Amendment in matters related to national security is like claiming that the president can raise taxes and appropriate money to fund a war. Such assertions of presidential power are laughable on their face.
Presidents are, of course, free to challenge laws that they think are unconstitutional; but they are not free to break them. If President Bush thought that FISA was unconstitutional, he should have brought a legal challenge to it. Instead, he secretly broke the law, which is grounds for impeachment. (Indeed, Nixon's violation of domestic surveillance laws was included in Article 2 paragraph 2 of the impeachment articles against him, although those violations were not in the context of national security.)
As for the Justice Department's third claim, it is highly unlikely that any member of Congress thought that voting to go after al Qaeda was a vote to suspend the 4th Amendment. There is certainly no reference to spying, surveillance, or warrantless searches in the resolution that Congress passed. If accepted, this weak legal defense would justify anything President Bush decided to do in the name of the war on terrorism: "Sure Congress didn't explicitly say the president could search the homes of members of Congress without warrants, but the president believes that the Congressional resolution authorizing him to use force against al Qaeda gives him that power."
The Unitary Dictator
Taken in its entirety, the Justice department's memo, like previous assertions of presidential power by the Bush Administration, is really just an attempt to build support for the legal notion that there are no checks that Congress and the Courts can place on presidential power. This notion is often referred to as the "unitary executive" theory, because it asserts that the president has absolute control over the executive branch and the enforcement of federal laws.
In its base form, it simply means that Congress cannot create executive branch agencies that are independent of presidential control, such as the Office of Independent Counsel in the Justice Department and the Federal Election Commission. This claim has significant merit because the first clause of Article II, Section 1 of the Constitution says, "[t]he Executive Power shall be vested in a President of the United States of America." But, given the fact that Congress creates and funds these agencies and has constitutional control over "all other powers" vested to the federal government, it is doubtful that the authors of the Constitution sought to give the president absolute control over executive agencies. He manages them; but, their duties, powers, and structures are Constitutionally defined by Congress.
Still, it is hard to reconcile the power that Congress has to create and define executive agencies with the Constitution's clear language that all executive power resides with the president. Advocates of the unitary executive theory might be right that Congress cannot create executive agencies independent of the president. Fortunately, this rivalry of powers is not an issue when it comes to wiretapping. Congress created the spy agencies, but gave the president clear control over them. The president has the power to execute wiretapping laws (but is, of course, not free to ignore or break them.)
Supporters of a "unitary executive" also argue that the judiciary should not be allowed to hear disputes between executive agencies because they fall under control of the president. (For instance, the EPA should not be allowed to sue the military for illegal pollution because the president cannot sue himself). They even go so far as to claim that when the president includes his own interpretation of what a law means when he signs it into law, the courts should give some deference to that interpretation, even though it was Congress that wrote and enacted the law.
Consistent believers in the unitary executive theory argue that presidential powers, such as the power to wage war, are absolute and that the president's decisions in these areas are beyond check. Some even assert that the president can interpret laws himself, including their constitutionality, and ignore the judiciary when he feels judges are exceeding their authority. It is this extreme brand of unitary executivism that underlines President Bush's claims that he can spy on citizens without warrants, detain people without trial, and torture people at will.
This assertion of absolute presidential power cannot be reconciled with the Constitution, which gives the president very little inherent power beyond the power to pardon offenders and veto legislation (and even a veto can be overridden by a two thirds vote of Congress). The president does have the right to negotiate treaties, but he cannot enter into them without the consent of the Senate. He can appoint ambassadors, judges, and heads of agencies, but only with Senate approval (except when the Senate is in recess, but recess appointments are only temporary). He has the power to enforce laws; but, it is Congress that passes these laws and establishes, defines and funds the entities that he manages.
The Constitution gives the president so little power that he would have to find his own place to live, if Congress chose to defund and shut down the White House. Without the laws that Congress passes, the agencies it creates, and the money it appropriates, the president would just be a man on a street corner with the power to negotiate treaties, that would still have to be approved by the Senate. Unitary Executive? More like lonely executive.
But, supporters of the unitary executive theory are determined to get their way. A spokesperson for the Justice Department recently told the Washington Post, "when it comes to responding to external threats to the country . . . the government would like to have a single executive who could act nimbly and agilely." This, of course, would essentially be a dictator, with the power as Commander in Chief to do whatever he wants in the name of "national security".
If the unitary executivists are successful, the president will have the power to ignore judicial decisions and federal laws he does not like. And Congress will not even be able to create independent agencies to monitor the president's activities.
"No" on Alito
It is in this context that Senators and the American people should view President Bush's nomination of Judge Alito to the U.S. Supreme Court. In a speech last week at the Georgetown University Law Center, Senator Patrick Leahy (D-VT), the Ranking Member on the Senate Judiciary Committee, made the best case so far for voting against Alito:
[T]he unilateral assertions of presidential power have continued throughout this presidency. They have become the pattern, abetted by a Republican Congress that more often than not is too timid or too beholden or too uninterested to exercise its own authority, including its oversight responsibilities.
The question of Judge Alito's confirmation comes to us at a time when we are learning that the President has been conducting secret and warrantless eavesdropping on Americans for more than four years. It was during this backdrop that Judge Alito was vetted by the Bush Administration, and was ultimately picked. This President has made some of the most expansive claims of power since American patriots fought the war of independence to rid themselves of the oppressive rule of King George III. This President is claiming power to illegally spy on Americans, to allow actions that violate our values and laws protecting human rights, and to detain U.S. citizens and others on his say so, without judicial review or due process. This is a time in our history when the protections of Americans' liberties are at risk, as are the very checks and balances that have served to constrain abuses of power for more than two centuries. And once it is taken away or eroded, liberty is rarely restored.
The Supreme Court is the ultimate check and balance in our system. The independence of the Court and its members is crucial to our democracy and way of life. The Senate should never be allowed to become a rubber stamp, and neither should the Supreme Court. I asked Judge Alito to demonstrate his independence from the interests of the President, and he failed that test...
Most importantly, in his testimony he attempted to revise and redefine the theory of the "Unitary Executive" to which he subscribes. It is that troubling theory that this President and his supporters are using as a legal underpinning to attempt to justify this President's assertions of virtually unlimited power.
No President should be allowed to pack the courts -- and especially the Supreme Court -- with nominees selected to enshrine presidential claims of government power... The Senate stood up to President Roosevelt when he proposed a court-packing scheme. And today, the Senate should not be a rubber stamp to this President's effort to move the law dramatically to the right and to give him unfettered leeway.
While Judge Alito does have a libertarian streak, it is clear that he is way too cozy with the unitary executive theory and the notion that the president has absolute powers. His refusal to state that the president does not have the right to conduct warrantless searches is itself grounds to oppose his confirmation; and Senators have a moral and constitutional duty to do so. With a President asserting absolute power, we cannot afford to take any chances. It is not just the future of our Constitutional Republic, but its very existence, that is at stake.
Note: The transcript of the Senate's recent confirmanation hearings on Alito can be found here.
