Senator Specter has an op-ed in the Washington Post in which he responds to critics of his proposed legislation concerning the NSA domestic surveillance program. Here is an excerpt:
The president has insisted that he was acting lawfully within his constitutional responsibilities. On its face, the program seems contrary to the plain text of the 1978 Foreign Intelligence Surveillance Act (FISA), which regulates domestic national security wiretapping. The president argues, however, that his inherent constitutional powers supersede the statute. Without knowing the exact contours of the program, it’s impossible to say whether he is right or wrong. But three federal appeals court decisions suggest the president may be right.
The integrity of our nation’s adherence to the rule of law requires an answer to the question of whether this program is legal. The protection of our nation’s security and individual rights requires a modification of the program if it is not lawful as currently fashioned. The challenge, which I have been trying to meet legislatively, is to structure a procedure under which the courts can adjudicate the lawfulness of this highly sensitive program while maintaining the secrecy the president contends is so important.
My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC), the court created under FISA to consider warrant applications. The FISC has the expertise to handle this question. Its closed proceedings and unblemished record for not leaking would make full consideration both possible and secure. Not only would the bill permit a determination of the program’s legality but if it were found unlawful in whole or in part, a framework would exist for modifying the program.
Critics complain that the bill acknowledges the president’s inherent Article II power and does not insist on FISA’s being the exclusive procedure for the authorization of wiretapping. They are wrong. The president’s constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president’s assertion of inherent executive authority meets the Fourth Amendment’s “reasonableness” test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president’s claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.
I have a tremendous amount of respect for Senator Specter. I think his efforts to hammer out a compromise over the NSA program are very admirable. I don’t have a clear view of whether his legislation is a good idea or a bad idea, but I’m certainly open to it. (My own take is that it’s hard to take a position on Specter’s bill without knowing the details of the classified program, which of course we don’t know, but that’s a topic for another post.) At the same time, I believe Senator Specter is making two errors here that are important to understand.
First, Senator Specter appears to discuss the lawfulness of a program as if that were the same as the program’s constitutionality. The two are different, however, as the legal dispute over the NSA wiretapping program has focused mostly on whether it violates statutory Foreign Intelligence Surveillance Act (FISA). Specter’s bill would change the Foreign Intelligence Surveillance Act to remove the basis for believing the program violates FISA, and would then ask the FISA court to determine only if the program violates the Constitution. As a result, Specter’s legislation would not answer whether the NSA program is lawful; rather, it would answer whether the NSA program could be made lawful. That would settle one part of the debate, but would preclude resolution of the other part.
Second, I think Senator Specter is mixing two questions when he writes that “[t]he president’s constitutional power either exists or does not exist, no matter what any statute may say.” There are actually two distinct questions here: The president’s constitutional power to act without Congress’s explicit approval, and the president’s constitutional power to act in the face of Congress’s explicit disapproval. The two are not the same.
To see the importance of the difference, consider an example from wiretapping law. In 1968, Congress passed federal Act, which for the first time permitted federal agents to use bugging equipment to monitor private homes pursuant to a court order. But Congress’s legislation left out something important: The legislation said nothing about the authority of the police to covertly enter the home to install the bug. As a result, Courts had to decide whether Congress had implicitly authorized investigators to break into homes covertly to install the bug pursuant to a court order, or absent that, whether the Executive Branch has “inherent authority” to break into the home to install the bug.
Here is how the Sixth Circuit presented the latter question:
Given the 1968 statute which permits eavesdropping, is it “reasonable” under the Fourth Amendment for officers to break and enter someone’s house or office in order to execute an eavesdrop order? Do law enforcement agents have an independent or inherent authority sanctioned by the Fourth Amendment to break and enter to execute a search warrant, a power that may be extended by analogy to the execution of an eavesdropping warrant?
United States v. Finazzo, 583 F.2d 837 (6th Cir. 1978) (Merritt, J.). The Sixth Circuit concluded that the Executive Branch did not have this inherent authority:
In the absence of explicit statutory authorization, we are unwilling to create a wholly new exception to general search and seizure principles which have held for centuries that such conduct is illegal.
Id. The Supreme Court decided the case a year later, and ruled that Congress had implicitly authorized the covert entries as a matter of statutory law. See Dalia v. United States, 441 U.S. 238 (1979). But the key here is that when the Sixth Circuit was making repeated references to the “inherent authority” of the Executive Branch, that clearly meant “authority to act absent Congressional approval,” not “authority to act in the face of a Congressional prohibition.” The answer to the question of whether the searches were authorized hinged on whether Congress had acted; “inherent authority” was ultimately second to the question of Congressional action. Thus, in Dalia, the fact that the Supreme Court concluded that Congress had authorized the covert entry resolved the matter of Executive Authority.
Coming back to Senator Specter’s claim that “[t]he president’s constitutional power either exists or does not exist, no matter what any statute may say,” my sense is that he seems to be slipping past the key question. Of course, Congress cannot trump the President’s “inherent authority” when that inherent authority is used to refer to the authority to act in the face of Congressional prohibition. And indeed, there are some cases in which courts have referred to inherent authority in this way. However, Congress can trump the President’s “inherent authority” when that inherent authority is only the inherent authority to act absent Congressional regulation. My sense is that most legal analysts interpret the court of appeals cases Specter cites to refer to the latter kind of inherent authority rather than the former kind.
Now, of course, none of this touches on the merits of Senator Specter’s bill. But to the extent that his bill reflects the same assumptions in the Senator’s op-ed, I think it’s helpful to understand why Senator Specter’s understanding is different from that of most legal analysts in this area. That’s my sense of it, at least; if I’m mistaken, I look forward to your comments to help set the record straight.
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Specter is either being disingenous or just has no knowledge whatsoever of Constitutional law. Congressional acknowledgment of the President’s power to wiretap — and especially as broad of an acknolwedgment as is found in the Specter bill — would surely give the Pres. a huge, huge boost in any court proceeding trying the constitutionality of the President’s actions. Has Specter not read Jackson’s famous Youngstown concurrence? Anyone who has passed the first year of law school could tell him that he is full of it.
Thoughtful and sensible analysis, Professor. It seems that Specter has failed to view this issue through the Younstown lens. My sense is that this amendment would probably let this program go forward, since courts are likely to be much more forgiving of the President when he is acting in the second zone.
Justice Jackson himself warned in his famous Youngstown concurrence that unless Congress asserts its powers, they will be snatched away:
But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.
Yes, Congress can repeal the core of FISA if it wants to, and return almost complete control to the president, as the law did before 1978. The text of the Specter/Bush/Cheney bill places that fundamental policy question squarely in front of us — if we read it. If not, if we rely instead on the sponsor’s spin, we do not even understand that is at stake.
It is worse than disengenous, it is hypocritical, for Specter to advance this proposal while masquerading as a great protector of congressional prerogatives. He even seems to deny that the language of his bill means what it says.
I had much respect for Specter six months ago because of what he was saying, and supported his earlier FISA initiatives (with some reservations). I have lost most of that respect because of his recent actions, which seem transparently partisan.
Marty Lederman draws similar conclusions.
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I am confused what the Senator sees as the purpose of FISA if he is willing to do this. What is the purpose of a law, that if violated, is merely rewritten to allow conduct previously (maybe) illegal? The time to rewrite FISA was BEFORE it was allegedly violated–not after. Why is Spector giving away Congressional Authority in order that the president can claim inherent powers? Sure, prior to FISA, the President had inherent powers–but this was not explicit power. The creation of FISA was an explicit prohbition of a power, previously granted nor denied anyone.
He is now undermining FISA by saying that it was in conflict with the inherent power of the president. Correct me if I am wrong but isn’t this the purpose of law? FISA does not impede any explicit power, therefore it seems that FISA’s “underming” of the president’s inherent power does not allow the argument that the president retains inherent power.
The president’s constitutional power to act without Congress’s explicit approval, and the president’s constitutional power to act in the face of Congress’s explicit disapproval. The two are not the same.
As I have said here before, the bill’s seeming agnosticism is not really agnosticism. It plainly puts the President in the penumbras of Article I while pretending to take no position. It also implies that inherent power can repell Congressional regulation depending on the circumstances — but it is one thing to say that the President’s inherent power trumps an unconstitutional statute that is unconstitutional because of, say, the Due Process Clause; it is another to say that an otherwise constitutional statute is unconstitutional because of the President’s inherent power, which thus trumps it.
This is what astounds me. As Professor Kerr points out, Senator Specter ignores the distinction between the president’s constitutional power to act without Congress’s explicit approval verus the president’s constitutional power to act in the face of Congress’s explicit disapproval. Yet very language of Justice Jackson’s concurrence in Youngstown that famously made this distinction is quoted in the Congressional findings of Senator Specter’s Bill. (Finding #8) This shows that Senator Specter must be cognizant of the distinction. More importantly, if the bill were to be enacted, it would show to any reviewing court that Congress was cognizant of the distinction. In light of that, I don’t see how a reviewing court could interpret the bill any other way than authorizing the President to act to the fullest extent allowable under the Constitution in the absence of Congressional action (and relegating FISA to merely an optional procedure that the President may choose to employ if he or she wants to act with both his authority and Congressional authority).
Prof. Kerr:
I agree with your assessment, but I think your tone is almost too respectful in this instance. In his op-ed, Specter egregiously misstates a basic principle of constitutional law. He conflates categories 2 and 3 under the Youngstown framework, and in doing so, badly misstates the extent of Congress’ power to place limitations on executive authority. Now, he’s either incredibly confused or intentionally dissembling. I actually suspect the former, but either way its inexusable. His proposed legislation is serious business and there’s no excuse for misleading the readers of the Washington Post about such an important issue.
Did I misread the op-ed? Where did he conflate categories 2 qnd 3?
And when on earth did Justice Jackson’s lone concurrence in Youngstown become a “basic principle of constitutional law”?
Adam White: And when on earth did Justice Jackson’s lone concurrence in Youngstown become a “basic principle of constitutional law”?
Well, it was adopted (and refined) by the majority in Dames & Moore v Regan, cited by the plurality and the dissents in Hamdi v Rumsfeld, cited by every justice in Hamdan v Rumsfeld, and singled out as the touchstone case in this field by John Roberts and Samuel Alito during their confirmation hearings.
Thank you, JaO. You said what I was about to. All the current justices seem to accept the basic Youngstown framework as controlling. As well they should given that the Youngstown framework has been adopted by the Court in several cases. In fact, if you read through the various opinions in the original Youngstown case, you can make a strong argument that Justice Jackson’s opinion actually represents a sort of common denominator among all the justices. Many of the other opinions actually went further than he did. And even the dissenters in Youngstown didn’t disagree with Jackson in principle; they just thought that Congress had not in fact expressed its will in sufficiently clear terms.
As for Specter’s op-ed, he badly misstates the nature of inherent authority. He makes it sound as if any power the president has in the absense of statute he retains in the presence of a statute. That’s just flat-out wrong.
Anonymous Liberal,
I agree that Jackson’s Youngstown framework is the common denominator shared by all the current justices. It shows matter-of-factly even in Thomas’ dissents in Hamdi and Hamdan.
The person who disputes that otherwise well-settled principle is Arlen Specter!
Specter’s op-ed: “The president’s constitutional power either exists or does not exist, no matter what any statute may say.”
Jackson’s concurrence: “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”
Some argue about whether Congress does or does not have the power to regulate surveillance, which creates the tension to be resolved in a Category 3 case today.
Specter’s spin denies the very core of the Youngstown framework itself.
I would never doubt that that Youngstown opinion is now firmly entrenched in the foreign affairs canon (which is ironic, because Jackson didn’t seem to think of it as a foreign affairs case). But I think it’s a bit of a stretch to call Youngstown “a basic principle of constitutional law”. Youngstown operates in a fairly small corner of the constitutional world; it just so happens that it’s in our consciousness quite a lot these days.
Even in Hamdan’s court opinion, as one wise lawyer pointed out to me, Youngstown received only brief mention.
I find that opinion to be perhaps the most interesting opinion of the last 60 years, but let’s not suddenly turn that opinion into constitutional bedrock.
On the point of Youngstown and inherent authority: I don’t see how Jackson’s opinion answers any questions about “inherent” authority. His opinion sweeps it to the side at one point; he doesn’t make clear whether he considers it synonymous with indefeasible “independent” power in another part. And at oral arguments Jackson made quite clear his opinion that “inherent” power simply could not be defeated by statute. I’d say that you’re reading WAY too much into that opinion, but I’d also say that you’re not alone.
” And even the dissenters in Youngstown didn’t disagree with Jackson in principle”
Actually, if I recally correctly none of the justices paid much if any particular attention to Jackson’s lone concurrence in their own opinions. Newspapers reporting that decision paid it no heightened attention. And even law review articles reflecting on the 1952 Term (including one by Paul Freund, who worked for Jackson in the DOJ, I believe) paid it no special attention.
Adam White: Even in Hamdan’s court opinion, as one wise lawyer pointed out to me, Youngstown received only brief mention.
Methinks you and that wise lawyer are in Youngstown denial.
The mentions were somewhat brief because the Hamdan opinions mostly focused on statutory issues. The plurality thus required only a brief footnote to underscore that Youngtown controlled.
Kennedy’s concurrence left no doubt: “The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952).”
The entire dissent written by Thomas, and joined by Scalia, was explicitly presented within Jackson’s Youngstown framework, as refined by Dames & Moore. “It is within this framework that the lawfulness of Hamdan’s commission should be examined.” (Those dissenters, disagreeing over the statutory interpretation of the AUMF and UCMJ, did argue vigorously that such interpretation placed Hamdan closer to the Category 1 end of the spectrum. They deliberately did not reach the question of what might be otherwise: “Although the President very well may have inherent authority to try unlawful combatants for violations of the law of war before military commissions, we need not decide that question because Congress has authorized the President to do so.”)
I correct myself and not that Alito did not join at all in this part of Thomas’s dissent “which concern[s] matters that I find unnecessary to reach.”
Adam White: On the point of Youngstown and inherent authority: I don’t see how Jackson’s opinion answers any questions about “inherent” authority.
Well, if you didn’t see it before, it seems that the plurality’s reliance in Hamdan now should make that clear: “Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its ownwar powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).”
Methinks you were too busy being snarky to read what I wrote. I wrote that the Court’s opinion in Hamdan didn’t focus on Youngstown. I didn’t say anything about the separate opinions.
And as regards Jackson’s opinion, you’re not reading that very closely, either. In the very sentence you quote, Jackson notes that Congress may limit the President only in proper exercise of its own powers. Likewise, in the tripartite framework, Jackson again notes that the President’s independent powers may overcome Congressional disagreement.
Specter clearly reads the NSA situation to be one in which the Congress may very well be disabled from superceding the President in the Youngstown framework. You can disagree with him on whether this is such a case, but you’re flatly wrong in suggesting that his op-ed somehow represents a reading the Youngstown opinion per se.
Make that, “a misreading of the Youngstown opinion per se”.
Adam White: Specter clearly reads the NSA situation to be one in which the Congress may very well be disabled from superceding the President in the Youngstown framework.
I don’t see that clearly at all.
Specter seems to be advancing a general proposition, “The president’s constitutional power either exists or does not exist, no matter what any statute may say.” I don’t see anything in his remarks that distinguish the NSA situation as a special case.
To not take Specter’s reference to the President’s alleged inherent powers is to take the entire op-ed out of context. Specter is not talking about the President’s power generally; rather, he’s talking about the President’s power on this topic. To put it in Jackson’s framework: Specter recognizes that the question of whether the President’s independent power does on this subject supercede Congress’s power on the subject is not something that Congress can control.
There’s plenty to criticize Specter for on this subject. (E.g., he appears to refer to Truong (3d Cir) in support of the President’s uncheckable “inherent” power while ignoring that case’s caveat that the President’s inherent power may be subject to Congressional limitation. Specter’s analysis is far from perfect. But I think he has the better reading of what Jackson’s framework does and does not provide.
I don’t think I am taking Specter’s op-ed out of context. I am going by all the words he has uttered on this subject over the past weeks — and I have been as attentive as possible.
If Specter means what you claim he means by strained implication, he has had ample opportunity to simply say so directly. He has not, even in the face of widespread criticism about his misstatement of Youngstown.
Again, at risk of abusing Professor Kerr’s web site, I think you’re fundamentally missing the point: Jackson’s opinion states on its face that there can be certain independent president powers that, even where the President’s power is at its lowest ebb, cannot be defeated by statute.
Sen. Specter, in discussing what he calls the president’s “Article II powers”, is referring to such powers and suggesting that it is possible that the President is exercising such power in carrying out this surveillance program.
To respond to your suggestion: Sen. Specter did, in fact, “say so directly.” That Specter is referring to the President’s theoretical “independent” power was made quite clear in the July 26 hearing, as he questioned the OLC’s Stephen Bradbury:
“[Jackson] said that when the president exercises his constitutional power, plus a grant of authority from the Congress under Article I, then his power is at a maximum, because he has two powers, Article II and Article I. Where he exercises Article II power alone, it is at the medium point. Where he faces a situation where Congress has denied him certain authority, as where FISA is in existence, then he relies solely on his Article II power.”
Again, I’d hardly say that Sen. Specter is always correct on this issue. Far from it! But I think that accusations that he has butchered Jackson’s sole concurrence in Youngstown are unsupportable, or at least unsupported.
Adam White: Jackson’s opinion states on its face that there can be certain independent president powers that, even where the President’s power is at its lowest ebb, cannot be defeated by statute.
I agree that theoretically in Category 3 a president could act in contravention of a statute — if and only if Congress acted unconstitutionally in enacting it. In Category 3, Jackson said, “Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.”
But that is a huge if. Specter has never said in so many words that the “exclusive means” provision of FISA is unconstitutional at all, let alone because of some residual Article II authority specific to the NSA case. He at best waffles on the point — what in his profession is accurately called spin.
As for your quote from Specter at the hearing, I have watched the entire hearing myself. There are passages when Specter speaks only of FISA, but there are several others — including the passage you quote above — where he makes the same assertion generally that no Article II powers can be touched by statute. That general assertion contradicts Jackson’s framework.
(Actually, Bradbury came closer to stating the law correctly than Specter did, and it required much coaching by the chairman to get the OLC chief to take full part in their colloquy Specter obviously had designed to bolster the administration’s case.)
In the quote you cite from Specter, he actually was misrepresenting Jackson by omitting Jackson’s full definition. In Category 3, the president does rely on his Article II power as Specter said. But, in Jackson’s words, “he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.“
“I agree that theoretically in Category 3 a president could act in contravention of a statute — if and only if Congress acted unconstitutionally in enacting it.”
True. And Specter would note that the Congress acts unconstitutionally when it purports to legislate on a subject where the President has exclusive authority.
Anyway, Specter’s testimony in that hearing, along with his op-ed, make clear that when Specter discusses “the President’s Article II powers,” he’s talking about the President’s alleged inherent/independent powers.
In other words, as Jackson saw the powers of the President separate from the power to carry out Article I legislation as the President’s “independent” powers, Specter sees them as the President’s “Article II” powers.
I think you’re relying on form over substance, disagreeing with Specter’s choce of terminology, to argue that Specter doesn’t understand Youngstown. I think it’s pretty clear that Specter is trying to make a point that’s quite consistent with Youngstown. I guess we’ll just have to agree to disagree.
Adam White: I think you’re relying on form over substance, disagreeing with Specter’s choce of terminology, to argue that Specter doesn’t understand Youngstown.
To the contrary, I do not think Specter “doesn’t understand Youngstown.” I think he is a canny old lawyer who is fully aware that he mangles the explanation of the case.
But he also is a canny old politician, and in that capacity he does not feel bound by the rigors of legal argument that would constrain him in a court. This is not law; this is politics. The chairman made a political deal with a president of his own party, and now is trying to sell it.
Specter is spinning, blowing smoke, conflating and distorting legal issues he knows most casual observers do not understand. And, I daresay, some commenters in the blogosphere may also be doing their part along those lines.