Broad readings of Articles I and II

[isomin at gmu.edu]

Unfortunately, I have to tend to a variety of family and other obligations, so cannot reply at great length.

However, to my mind the debate is not about the amount or quality of deliberation involved but rather about claims of virtually unlimited power: for Congress (as in Raich) or for the President (as in many of Bush's arguments). 

Second, as I indicated in an earlier post, I doubt that many of Bush's critics would have been mollified if he had acted less secretly. They believe that his actions were unconstitutional on substantive, not merely procedural grounds. 

Third, it is far from clear to me that there has been a consensus that the CSA would constitutionally apply even to homegrown, home-consumed marijuana or that FISA would be the exclusive route for tapping communications even in wartime. As several posters on this list have pointed out, the Clinton administration, among others, claimed that it retained the power to tap enemy communications on its own initiative. 

Finally, I do not agree with the view that an otherwise unconstitutional action that falls outside the scope of either executive or congressional enumerated powers can be made kosher by interbranch agreement. Similarly, a branch of government cannot "give away" one of its enumerated powers by such an agreement. Therefore, even if there was interbranch agreement on  FISA or on the CSA, I don't think it resolves the constitutional debate.

Happy Holidays to all!

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/

----- Original Message -----
From: marty.lederman at comcast.net
Date: Saturday, December 24, 2005 12:06 pm
Subject: Re: RE: RE: Broad readings of Articles I and II

> Perhaps I'm missing something in this thread.  What, exactly, is 
> the argument about here?  The current conflict is not between the 
> President and the Congress, but between the President and a 
> statute negotiated by both branches and accepted by both branches 
> for almost 30 years.  Ilya writes of various degrees of 
> "deference" to the political branches.  I would give "deference" 
> to the statute's "assertion of power" because it was duly enacted 
> and because of the "representative nature" of the two political 
> branches combined (not to mention the third branch that has 
> implemented the statute without raising constitutional concerns). 
> 
> The important point is not so much how "representative" either 
> branch is relative to the other, but that the President is not 
> above the law, in part because the process of lawmaking, involving 
> both branches and the public, is deliberative and requires 
> compromise and struggle.  As with so many other issues in this 
> area, Justice Jackson put it best (Youngstown at 655):  "With all 
> its defects, delays and inconveniences, men have discovered no 
> technique for long preserving free government except that the 
> Executive be under law, and that the law be made by parliamentary 
> deliberations."
> (Cue the groans from the detractors of Ely-like process arguments.)
> 
> FISA is a perfect example.  The statute was enacted after six 
> years of study and deliberation, based on an actual record of both 
> the value of warrantless intercepts for national security 
> purposes, and Executive abuse of that authority.  Congress 
> received significant input from both the Ford and Carter 
> Admininistrations, and the legislative process was marked by 
> plenty of struggle and compromise.  Carter signed the final bill 
> without expressing any constitutional doubts:
> http://balkin.blogspot.com/FISA%20SIgning%20Statement.pdf.
> 
> Indeed, the only person I know of who has expressed any doubts at 
> all about FISA's constiutionality as applied to the President's 
> Article II powers (before this week, anyway) is Laurence 
> Silberman.  He did it (at least) twice:  testifying against the 
> bill in 1978, and in a dictum in the In re Sealed Case, virtually 
> quoting verbatim his quarter-century-old testimomy, in 2002.  As 
> far as I know, all three branches have treated FISA as 
> constitutional for almost 30 years, with nary a (non-Silberman) 
> dissent.  (Indeed, the court of appeals case that the FISA court 
> (i.e., Silberman) cited for his assertion that the President has 
> "inherent" powers that cannot be regulated by Congress did not use 
> the adjective "inherent" and, more to the point, specifically 
> indicated that FISA’s restrictions on the President (which were 
> enacted after the operative events in that case) were 
> constitutional.  Truong, 629 F.2d at 915 n.4.)
> 
> This is not a case about "the President v. the Congress."  It's a 
> case of the President turning his back on the constitutional 
> system of lawmaking by both political branches.  As the story in 
> today's NYTimes indicates, this NSA program apparently is, in 
> fact, precisely the sort of vast data-mining program that has been 
> the subject of extensive debate in Congress and the public (and 
> the web) over the past several years.  I happen to agree with 
> Judge Posner that the question is extremely important, and with 
> Jack Balkin that the key question is not how many communications 
> the computers intercept, but how the data are stored, and what 
> protections are put in place to prevent abuse of the vast 
> databases.  It's a really important public debate, just as was the 
> pre-FISA debate from 1972-1976. 
> 
> But the Administration pretermitted the debate -- a debate that it 
> knew it could not yet win in the legislative process -- by simply 
> going ahead with the program anyway, in violation of clear current 
> statutory prohibitions.  That's a problem, no matter the size of 
> the President's electoral majority.
> 
> Turning biefly to Ilya's Commerce Clause counterexample, I believe 
> that the Controlled Substances Act has also been strongly 
> supported -- and its constitutionality assumed -- by both 
> political branches.  (And it was the SG who defended it -- 
> vigorously and superbly, I might add.)
> 
> There are typically only two sorts of cases where the two 
> political branches are at odds.  The first is the rare veto 
> override, where even Ilya would presumably agree that the 
> supermajority legislative vote is entitled to more "deference" 
> than the veto.  The other is appropriations riders, where the 
> President reluctantly signs a bill that he generally approves but 
> that contains particular provisions that he deems constitutionally 
> dubious.  And in that case, the President ordinarily announces his 
> constitutional objection, and if he decides not to implement the 
> statute, does so openly, with all that entails -- or, more often, 
> as in Chadha and Morrison v. Olson, the President implements the 
> statute and then challenges its constitutionality in court.
> 
> What do the President's election numbers have to do with any of 
> this?  It's not as if the President, in his campaign, ran on a 
> promise to undo the compromise reached by the President and 
> Congress in 1978, or to challenge the constitutionality of FISA -- 
> to the contrary, he was conspicuously quoted reassuring the voters 
> that a warrant was necessary before any domestic surveillance 
> could occur.   
> 
> I'm not saying the President should be disabled from asserting his 
> disagreement with Congress and his predecessors.  If the President 
> thinks FISA is unconstitutional, he should make that claim openly, 
> acknowledging that his views depart from a virtually unbroken 
> understanding in all three branches over 30 years, and either seek 
> to amend the statute -- by all means let's have a serious debate 
> about data-mining -- or violate the statute openly and agree to 
> have the courts decide the question.
> 
> That won't happen.  Even now, with the cat out of the bag, I think 
> it is very telling that DOJ is relying almost exclusively on the 
> preposterous AUMF argument in defense of the NSA program.  There's 
> a single sentence in the letter suggesting use of the avoidance 
> canon, but no attempt at all to demonstrate that there is a 
> constitutional problem with FISA, let alone a "serious" question 
> that would warrant use of the avoidance canon. 
> 
> 
> -------------- Original message -------------- 
> From: isomin at gmu.edu 
> 
> > I don't have any problem with Sandy's reformulation, except that 
> historically 
> > the majority of presidents (not just simply some "on occasion") 
> have won 
> > election with 50% or more of the popular vote. But my basic 
> point is simply 
> > that presidents are - on average - more "representative" of 
> majority will than 
> > the House and Senate, so that a theory that gives virtually 
> limitless deference 
> > to Congressional assertions of power because of Congress' 
> representative nature 
> > would have to give the same deference to the president. 
> > 
>