Tuesday, December 27, 2005

Pondering National Security II – A Rejoinder to Gipperclone

Below my good friend Gipperclone effectively articulates the case for a broad grant of executive power to the President especially when it involves matters of “national security.” While neither of us can settle the debate definitively, I thought that I would take my best shot at communicating the other side of the debate, namely, that the President’s powers are no more extensive simply because we are dealing with matters relating to “national security,” and more specifically, that Congress’s power in arena is broader than many who take GC’s position would like to admit. Like GC did, I’m going to this time try to avoid much of the legal minutiae that has plagued many analyses of this issue and speak more broadly about executive and congressional power under the Constitution.

Click the Read More Button to see rest of the post.

GC’s post poses a hypothetical situation in which Congress, in its infinite wisdom, enacts a statute or law that prohibits the use of bombs. GC properly calls this hypothetical absurd and I agree, however, not for the reasons asserted by what follows in GC’s post. According to GC, not only is the policy absurd, but it also infringes on the President’s Constitutional duty to protect the nation. I fully agree with the first part of that statement, but not the second. Rather, I would argue the hypothetical is absurd because the policy is so dumb that even Congress couldn’t muster the political will to do something along those lines. It is, however, perfectly constitutional for Congress to take such an action. As a result, the President would be obligated to follow the law as enacted by Congress, his “inherent” Presidential authority, however one wishes to define it, cannot under our Constitution ever be used to thwart the will of a co-equal branch of government. Should Congress act unconstitutionally we likely would have a different result, but, as all of here at TPS have said at one time or another, stupid is not necessarily unconstitutional. Thus, if Congress acts in a manner consistent with the Constitution, we are bound by their decisions, every one of us, including the President.

Simply put, it is well-within Congress’s power to outlaw the use of bombs. Several clauses of the Constitution give this power directly to Congress and to no other branch of government. For example, the Constitution states that Congress shall have the power to “raise and support armies, but no appropriation of money to that use shall be for a longer term than two years …” In addition, Congress has the sole authority to “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, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress…” Thus, it is long accepted and well-established that Congress controls the “power of the purse” and, as such, they could easily and constitutionally prohibit the use of funds for making, using, distributing or otherwise employing bombs of any type. Stupid yes, but unconstitutional I don’t see how. Therefore, the President has no constitutional remedy other than to veto the legislation. Assuming, as GC’s hypothetical does, that Congress has the votes to override the veto, the President is charged with the duty to “take care that the laws be faithfully executed,” not to decide which laws he wants to follow and which ones he does not. Like the Line Item Veto, or the Legislative Veto (See INS v. Chadha), mechanisms that subvert or alter the formal lawmaking and executing process established by the Constitution are in and of themselves unconstitutional and cannot stand. The President’s available, legal, and constitutional option is to convince Congress to change their stupid law, not to simply ignore it and decide to continue doing that which Congress has expressly prohibited.

Admittedly, my analysis has followed a sort of a formalistic bent, similar to the type followed by many of the recent Supreme Court Justices in cases such as Raines v. Byrd and Clinton v. New York. There is another way to argue this and I think GC has done it, albeit implicitly in his previous post, but his is more of a “functional” analysis that can easily lend itself to a charge of being a “living constitutionalist,” a point-of-view that I know that he deeply objects to. That said, I don’t think he’s 100% wrong; rather, I think it’s an open political/legal question that needs to be debated and settled, but I’m not sure this is either the time or the case to do it in. There is too much about this that we don’t know; there are too many facts that will likely never be disclosed, and there are too many possibilities to render a comprehensive answer. The problem is that GC’s argument, like many of its functionalist predecessors, is politically appealing. Functionalist arguments are designed to fit the current political/military situation quite well, are by definition malleable and, therefore, are able to fit almost any situation where they are required. Currently, functional arugements are being designed to provide the President unchecked ability to fight terrorists. Previously, they have been used to curtail federal spending (line-item veto), while at other times they have been used to try to protect the institution of the Presidency (Nixon/Watergate), or to protect the nation from internal destruction (Lincolin's suspension of the writ of habeus corpus). I don’t argue one bit with the logic of GC’s argument, as there is a great deal to be said about flexibility and ability to respond to the threat posed by terrorists. That said, however, there is a right way and a wrong way to get the flexibility that this threat requires and that is to use the channels expressly made available in the Constitution. Yes, they are potentially slow and often the results are painful, but they have withstood for over 200 years, through numerous conflicts both foreign (WWI, WWII, etc.) and domestic (Civil War).

It is without a doubt true that Congress may not be the most efficient or even the most well equipped institution to handle many of the problem faced by our nation in the 21st century, but they are the institution empowered by the Constitution to try, and until we as a country take the affirmative steps to change that we are stuck in the system created by the founders and enshrined in the text of the Constitution. Are there inherent authorities vested in the President, yes, on this GC and I don’t disagree. However, what those are, there scope, and the solution when they conflict with other equally vested powers remains something that we have to and should seriously debate. Too many vested powers can be abused, and Lord Acton’s warning that “absolute power corrupts absolutely” comes to mind. Too few, and there is a legitimate concern that the President will be incapable of protecting us from future threats. There is a balance to be had here, but it will not come by the branches exercising unilateral authority to act in contravention of the Constitution. Again I don’t know if the President violated either the law (FISA) or the Constitution, but I do know that to continue unchecked down this path is potentially dangerous to the United States. We as a nation have to decide these questions, and we should do so in as open a forum as possible using as deliberative a process as necessary. We shouldn’t shy from our duties out of fear, for if we do the terrorists will win without ever having to physically attack us again.


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