Commentary

Executive Power on Steroids

This article appeared in the Wall Street Journal, February 13, 2006.
President Bush’s domestic surveillance program against al Qaeda has spawned multiple controversies. Intelligence skeptics ask, for example, whether the potential gains from snooping are worth the hassle. Civil libertarians doubt whether the warrantless surveillance and wiretaps can be squared with the Fourth Amendment. On both these disputes, my sympathies run with the president. I support his efforts to renew the Patriot Act; and I believe our first order of business should be to retool the Foreign Intelligence Surveillance Act (FISA) to meet the challenges of modern communications technology.

Yet the key legal struggles over domestic spying go not to its wisdom, but to the thorny issue of whether the president has exceeded his constitutional powers in disregarding FISA. He has.

The Constitution gives Congress the power to set policy; it gives to the president the right, and the duty, to execute it. The president claims first that he has secured the needed congressional blessing for the NSA’s domestic surveillance through the Authorization of Use of Military Force Act, passed in the aftermath of Sept. 11, 2001. Not so. AUMF does not contain one word that dislodges FISA, and the law disfavors any “implied repeal” of major legislation. Right now, the president can both hound al Qaeda and follow FISA requirements for domestic warrants. If he wants to go further, he should seek explicit congressional authorization.

The administration’s more aggressive claim is that an “inherent commander in chief power” lets the president act on his own. To see why this claim fails, it is critical to set out — they’re short — the precise provisions that implement the constitutional separation of powers in matters of war and peace. First off, the Constitution gives the Congress the power “to declare” war. Next, only Congress can appropriate the funds to operate the land and naval forces. Most critically for the spying dispute, Congress has the explicit power “to make rules for the government and regulation of the land and naval forces.” It has similar powers for setting the standards (or “discipline”) for the state militia. Congress’s power applies in both peace and wartime, and is subject to no express limitations on the nature and content of its general rules.

On the other side of the ledger, “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the militia when called into actual service of the United States.” Note the word “power” appears no where in this sentence. The operative verb is “shall be.”

The choice of words is not inadvertent. Later in the same section the Constitution provides that the president “shall have the Power to grant Reprieves and Pardons for offenses against the United States, except in cases of impeachment,” and the “Power, by and with the Advice and consent of the Senate to make Treaties.” Elsewhere the president shall “receive” ambassadors and “require” reports from his subordinates.

Words matter. Only powers allow for a change in legal status of the persons over whom some power is directed. Thus the president’s power to grant reprieves and pardons is rightly described as “plenary,” precisely because Congress has no stated power to hedge it in by legislation, for example by declaring certain offenses unpardonable. The president’s power to make treaties is likewise plenary, but now subject to the explicit check of Senatorial advice and consent. At no time, however, can Congress send its own delegation off to negotiate with Iraq.

So understood, subtly adding in some “inherent commander in chief power” upsets a carefully wrought constitutional balance. Let the president have plenary power over military affairs, then it becomes an inevitable political tussle over whether his inherent power is stronger than Congress’s stated one. But why twist accurate constitutional language to make a shambles of our basic governance structure? Congress gets to set the general rules governing military efforts. The Constitution does not confer the identical power on the president.

This view does not reduce the commander-in-chief-clause to some ceremonial nullity; rather, it has four critical functions. First, it guarantees the civilian control over the military. Second, Congress cannot circumvent the president’s position as commander in chief by assigning any of his responsibilities to anyone else. Only the president can execute any laws that Congress puts in place, and all inferior military officers from the Joint Chiefs of Staff on down answer only to him. Third, the Congress is barred from making any specific order on military matters once it lays down the rules. It cannot micromanage the military, nor put inferior military personnel in the impossible position of deciding whose commands to follow, or why. Fourth, the president, like any inferior military commander, can respond on his own initiative to an immediate attack, without congressional authorization.

The president’s defenders insist that any gap in his power is filled because the Constitution provides that the president “shall take Care that the laws be faithfully executed.” But this clause cuts in exactly the opposite direction. FISA is one law that the president must “take care” to enforce: He cannot choose to flout or ignore it, even if he has wide discretion in how to implement it. Nor can the president obviate the need for legislation by making selective disclosures of his activities to certain members of Congress whom he then subjects to a vow of secrecy. Our constitutional structure of checks and balances is not subject to unilateral presidential circumvention by ad hoc procedures. The precise detailed enumeration of powers and responsibilities in Article II just do not confer on the president a roving commission over foreign and military affairs. He is a coordinate player, not a dominant one.

So who cares about these close textual and formal arguments? We all do, or should. The major danger with presidential surveillance does not lie in this particular overreaching of executive power. It’s what comes next. If President Bush can ignore FISA, then he can disregard a congressional prohibition against the use of nuclear force. His defenders often claim that national defense is too important to be left to a wobbly Congress — which on my view might prohibit the use of live ammunition in combat. And so it could. But political forces are always in play, and no legal institutions are simultaneously robust against all forms of incompetence.

As Madison reminds us, “Enlightened statesmen will not always be at the helm.” If we accept executive power on steroids, then what’s to be done if a reckless president drags our nation into foolish conflicts? Over the long haul, we’ll do best by sticking to the original game plan on military matters rather than rewriting the Constitution to let the president alter the rules of the game. Under our Constitution, that power belongs to Congress. May it use the power wisely.

Richard Epstein, the James Parker Hall Distinguished Service Professor at the University of Chicago and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the author, most recently, of How Progressives Rewrote the Constitution.