Broad readings of Articles I and II

[Marty Lederman]

My vague recollection was that the Carter DOJ came up with very creative ways of getting around what was intended to be an absolute appropriations bar by fiddling around with different "pots" of funds.  I remember being troubled by this when I looked at it -- it seemed a bit too disingenuous.  But Carter did not, as far as I know, claim any constitutional authority to violate the law.


----- Original Message ----- 
From: "Richard Dougherty" <doughr at udallas.edu>
To: <isomin at gmu.edu>; "Marty Lederman" <marty.lederman at comcast.net>
Cc: "Sanford Levinson" <SLevinson at law.utexas.edu>; <conlawprof at lists.ucla.edu>
Sent: Saturday, December 24, 2005 3:28 PM
Subject: Re: RE: RE: Broad readings of Articles I and II


> Does Carter's amnesty program for draft-dodgers fit the category of executive defiance of inter-branch policy agreements?  I seem to recall his spending funds to accomplish this when Congress had refused to appropriate money, or had specifically prohibited it.  (If others have more accurate details that would be apprieciated.)
> Richard Dougherty
> 
> 
> ---------- Original Message ----------------------------------
> From: "Marty Lederman" <marty.lederman at comcast.net>
> Date:  Sat, 24 Dec 2005 14:36:08 -0500
> 
>>Just one quick response, to the claim that "the Clinton administration, among others, claimed that it retained the power to tap enemy communications on its own initiative."
>>
>>Of course every President would claim, and many have claimed, the power to "tap enemy communications on its own initiative."  That claim is correct.  Indeed, I'd go even further:  To a certain extent, a President has the power to do such tapping even when the communications are (i) between the enemy and someone here in the U.S. and/or (ii) between the enemy and U.S. citizens and LPRs who are not affiliated with the enemy.  As Youngstown and other cases (including Milligan and Hamdi/Padilla) suggest, the more the presidential conduct moves from a foreign to a domestic setting, the more tenuous the President's claim of independent power to act.
>>
>>HOWEVER:
>>
>>1.  Many of the communications here may have been between two or more parties, neither of whom are part of the "enemy."  See http://balkin.blogspot.com/2005/12/another-reason-why-aumf-argument-is.html.
>>
>>2.  This program has apparently intercepted the communications of hundreds or thousands of persons here in the U.S., and so might take this beyond the category where the President can act indepedently and where he can't.  (See the Keith case.)
>>
>>3.  And, most importantly, I am willing to assume (absent further information) that the President may have been able to constitutionally implement this program in an era where Congress had been silent -- e.g., between 1968 and 1978 -- that is to say, in Youngstown Category II.  But the constitutional calculus changes dramatically when he violates a carefully crafted statutory framework (especially one in which the Executive acquiesced at the outset and for almost 30 years), i.e., when we move to Youngstown Category III.  As far as I know, neither the Clinton Administration not any other Administration has claimed it retains the constitutional power to tap enemy communications in defiance of statutory prohibition.   To the contrary, as far as I'm aware the Clinton Administration scrupulously adhered to FISA's limitations.  (If there are counterexamples, please let me know.)
>>
>
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