presidents, war, and the Nixonian moment

[Howard Schweber]

I think that Prof. Scarberry -- with whom I have had disagreements in the 
past, I should note -- is correct on this one.  There is no way to put the 
cat back into that particular bag; when Congress grants power to the 
President, even if it grants more power than its members intended to grant 
(let alone more than they might be inclined to grant today), the law 
remains effective until something changes it.

One thing that could change the grant of authority, of course, would be for 
Congress to explicitly take it back, a process that would require a 
filibuster-proof majority of its own; as Scarberry observed, there is an 
inertia effect to the passage of legislation.  Nonetheless, the first check 
here is political.

A second possible check would be a court determining that "use of military 
force" simply does not encompass warantless wiretaps under any 
circumstances.  I think that in this case courts would be likely to apply a 
standard that is, if anything, more deferential than that applied in 
Chevron and its progeny, but it is conceivable that the administration's 
actions here will be found to be beyond any plausible scope of the AUMF, so 
that as a statutory matter FISA would still apply.

A third possible check -- not one that I consider very likely, but worth 
thinking about -- is a ruling by a court based on a 
nondelegation/separation of powers argument.  Assume for the moment that 
one accepts the accuracy of the assertion that the administration did not, 
in fact, consult with any but a few members of Congress, and then under 
circumstances that prevented their making the administration's actions the 
subjects of deliberation.  Assume, furthermore, that one accepts an 
argument that the same arguments that apply here apply across a broad range 
of other federal statutes.  At that point, a court is confronted with an 
interpretation of the AUMF that gives the President authority to supercede 
any and all previously enacted federal laws without any effective 
consultation with Congress and use the judicial branch as its 
instrument.  Are there problems of encroachment or undermining Congress' 
authority, or the transfer of incongruous power, here?  It is important to 
note that in Morrison, nondelegation and separation of powers were treated 
as separate subjects of review; Rehnquist presented an argument that even a 
law that does not violate nondelegation may nonetheless violate of 
separation of powers as one of those "background principles" the Rehnquist 
Court was so fond of discovering.

But both of these possible limitations depend on the assumption that the 
AUMF really is the basis of the administration's assertion of authority in 
the first place.  In fact, of course, the argument that has been the 
mainstay of the administration's internal deliberations since 2001 has been 
the Curtiss-Wright-style claim of inherent executive authority that is 
simply not subject to limitation by any act of Congress, and therefore 
trumps even Congress' authority under Article I to "make rules concerning 
captures on land and water," to "make rules for the government and 
regulation of the land and naval forces," and "provide for organizing, 
arming and disciplining the militia and for governing such part of them as 
may be employed in the service of the United States."  The Yoo/Bybee 
memoranda were quite explicit on this point, and Gonzales made a reference 
to those memoranda in his own recent interview.  I don't know how much 
longer this question can be avoided, despite President Bush's heroic 
evasion during his press conference.

If Congress acts to take limit the authority the President has asserted 
under the AUMF, and the President responds that he has the authority anyway 
as an element of his "inherent" authority, then the only check left is 
political:  impeachment.

hs 
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