The Article II Argument

Mon Jan 30 20:14:01 PST 2006

Re: The Article II ArgumentI'm not aware that the Administration has conceded that Congress can cut off funding in order to stop conduct of the CiC that it could not directly restrict by statute.  Indeed, standard OLC doctrine -- and it's almost certainly correct -- is that the power of the purse cannot be used to accomplish what cannot be done directly (e.g., prohibit funds from being used to effect a disfavored pardon).
  ----- Original Message ----- 
  From: Jeff Renz 
  To: J. Noble 
  Cc: conlawprof at lists.ucla.edu 
  Sent: Monday, January 30, 2006 11:06 PM
  Subject: Re: The Article II Argument

  That (the the conflict between Art I, s. 8, cl. 14 and Art. II) is the conflict, isn't it?  I note that Bybee treated 18 USC 2340 & 2340A as "civilian" criminal statutes, rather than as, say, a provision of the UCMJ.  FISA is a little different from 2340, since it expressly refers to war time.  John accurately points out that this Administration recognizes no boundaries on the President's war power, once war is declared.  Torture?  "I get to decide."  Eavesdropping?  "I get to decide."  Executing POWs?  "I get to decide (and besides, they're illegal combatants.)"  What if, instead of torture, which tends to be ineffective as a tool, we thought we could save a couple of lives by raping a detainee's wife or shooting his children in front of him?  "Article II."

  The only power the Administration concedes to Congress is the power to cut off funding.  The last time that occurred, as far as I know, was shortly before the English Civil War.  According to May, no Parliament has withheld supplies since the Glorious Revolution.  So we can be reassured that Congress will withhold funds just before the ship of state capsizes.

  I think that this is not a constitutional moment.  It is a constitutional crisis.  Was it Hamilton or Story who argued that the end of a Republic is preceded by glory in arms?

  Prof. Jeffrey T. Renz
  School of Law
  The University of Montana
  Missoula, Montana  59812
  1-406-243-5127

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  A thread on another list raises a related question. Debating whether the Wall Street Journal fairly characterizes environmental extremists as "terrorists" for torching empty ski lodges and SUV inventories, someone suggested that the President enjoys as much latitude as the WSJ in defining terrorism and  determining the scope of the "War on Terror." If a formal declaration of war is unnecessary, and a joint resolution is optional and hortatory, and the enemy can be a cloud of organizations and individuals with cloudy agendas that mostly haven't even imagined taking up arms against the United States, is there anyone or anything that the President can't go to war against?

  If the President can assume power by declaring war on terrorism at a press conference, why can't he declare war on crime and order the warrantless seizure of identity thieves as well as ideological arsonists? If the President's authority is sui generis because the threat posed by "global terrorism" is beyond the reach of ordinary federal and state police powers, is it more than a lack of imagination and a coal-fed administration that's holding up the war against global warming? Even if the President needs a foreign enemy and threatened violence to call it wartime, isn't it clear that transborder telecommunications will always be part of the President's battlefield, no matter who or where the enemy is, as long as the enemy is armed with cellphones?

  Even if we kill them all or capture their cellphones, if the President's wartime authority can be exercised preemptively to defend national security, and that must be so, and an unexpected attack would more likely be launched by email than by armada, is there even such a thing as a peacetime president?

  John Noble

  At 3:43 PM -0500 1/29/06, William D Rich wrote:
    Many thanks, Marty, for so much useful information.

    Although the Administration's arguments have been made in the context of and explicitly refer to wartime, I don't see why they wouldn't apply in peacetime as well.  The UCMJ and other pieces of legislation prescribe rules that constrain the President in the exercise of his power to command the armed forces in wartime and peacetime.

    The main premise of the Administration's argument, stated in general terms, is that Article II prohibits Congress from prescribing rules that constrain the President in the exercise of his Article II powers.  The extent of Congress' powers to do so is certainly debatable, but could it be correct as a general matter that Congress cannot prescribe rules that constrain the President in the exercise of his powers?

    In the particular context of the commander-in-chief power, even in wartime, there is a specific grant of power to Congress to be considered:  "Congress shall have Power  . . .  To make Rules for the Government and Regulation of the land and naval Forces. . . ."  The "Torture Memo", citing the Constitution's text, structure, and history in support of the conclusion that the President cannot be constrained by legislation in his decisions about how to interrogate suspected terrorists, omits any reference to this grant of power to Congress.  So much for text.  It would be interesting to know whether the Yoo memo does likewise or, if not, what meaning it attributes to this clause.  It's a pity that the Yoo memo apparently can't be disclosed without jeopardizing national security.

    Bill Rich
    Univ. of Akron
    rich at uakron.edu

    At 06:39 PM 1/28/2006, Marty Lederman wrote:

      There is almost certainly an OLC memo (dated 3/14/03) comcluding that the UCMJ prohibitions on assault, threats, cruelty and maltreatment cannot limit presidentially authorized interrogation of the enemy.  See:

      http://balkin.blogspot.com/2005/06/gtmo-where-was-law-whither-ucmj.html

       http://balkin.blogspot.com/2005/07/heroes-of-pentagons-interrogation.html

      Similar analysis led DoD General Counsel Haynes to recommend Rumsfeld's approval of techniques at GTMO in late 2002 that would clearly violate the UCMJ.  And the OLC 3/2003 analysis almost certainly played a large part in the "migration" of harsh (UCMJ-violative) techniques from GTMO to Iraq and Afghanistan from March through December 2003, at which point new OLC head Jack Goldsmith disavowed the John Yoo memo of March 2003 -- see http://balkin.blogspot.com/2005/09/silver-linings-or-strange-but-true.html .

        ----- Original Message -----

        From: William D Rich

        To: conlawprof at lists.ucla.edu

        Sent: Saturday, January 28, 2006 6:07 PM

        Subject: Re: The Left, patriotism, and threats to the Capacity of My In Box

        At 09:46 AM 1/28/2006, Marty Lederman wrote:

          Are there any "secessionist" fans among us?  Any non-patriots (as if that appellation could possibly shed more light than heat)?  Am I the only one who thinks that this listserv has increasingly veered far from its ostensible subject and who yearns for the Good Ol' Days when we actually used to have rigorous, interesting discussions about, uh, constitutional law?

        No, Marty, you are not the only one.  This talk of secession is exceedingly silly, except perhaps insofar as Sandy has used it to raise a theoretical question or two.  As a (capital-D) Democrat, I find myself almost completely in agreement with Eugene on the subject of secession and patriotism, and the political ramifications of secession talk.  I see the talk of secession mainly as an expression of extreme dismay over recent political developments rather than as a serious proposal, but come on -- suck it up and get on with what needs to be done to bring about change.  In the immortal words of Joe Hill (perhaps soon to join Woody Guthrie as having been denounced on-list as a communist), don't mourn, organize.

        A contribution to Marty's effort to bring us back to questions of constitutional law:  Does the "inherent authority" argument being advanced by the Administration in support of its positions that FISA is unconstitutional as applied to anti-terrorism surveillance and that Congress cannot restrict the President's authority to order cruel, inhuman, and degrading treatment or torture of suspected terrorists imply that the Uniform Code of Military Justice is also unconstitutional?

        Bill Rich

        Univ. of Akron

        rich at uakron.edu

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