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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, December 23, 2005

The Supreme Court already rejected the Bush legal defenses

Supplementing my post above regarding the specious legal justifications advanced by Bush defenders to justify his violations of FISA, following are the relevant excerpts from The Supreme Court's decision in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) -- a case which expressly held that the President does not have the right to exercise his "inherent executive authority" in contravention of Congressional law.

As noted, the facts here are simple. During the Korean War, American steel workers decided they would go on a nationwide strike, which President Truman believed (accurately) would result in a steel shortage that would seriously impede U.S. national security. To avert that problem, Truman wanted to use the force of the Federal Government to seize the steel factories and use them to continue to produce steel. Truman had previously asked Congress to enact legislation giving him this seizure power, but Congress refused, instead enacting legislation that gave the President some new powers to deal with problems posed by such strikes, but which did not include the power to seize factories.

Unlike George Bush – who simply violates laws in secret that he does not think he should have to comply with – the Truman Administration argued its position in the Federal courts and asked the Supreme Court to rule that he had the "inherent authority" under the Constitution to seize the steel factories despite the fact that the Congress did not want him to do so and thus refused to give him this power.

Just as the Bush Administration is doing now, the Truman Administration then argued that national security required the President to exercise his "inherent authority" in violation of Congressional will:


Opposing the motion for preliminary [343 U.S. 579, 584] injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had "inherent power" to do what he had done - power "supported by the Constitution, by historical precedent, and by court decisions."

And exactly as the Bush Administration claims with regard to FISA, the Administration then claimed that the law passed by Congress was inadequate and too time-consuming to deal with the threats:

The Government refers to the seizure provisions of one of these statutes (201 (b) of the Defense Production Act) as "much too cumbersome, involved, and time-consuming for the crisis which was at hand."

The Supreme Court unequivocally rejected these arguments -- because under the Constitution, it is the Congress which makes the law, and the President is as required as anyone else is to abide by them:

The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ."

After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

The Concurring Opinions by Justices Frankfurter, Douglas and Jackson elaborated on the rationale behind that opinion. First, Justice Frankfurter explained that the Founders insisted upon limitations on the President's power even in times of emergency because the risk of autocracy was greater than the risk that such limitations would impair our security:

A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis:

"The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, [343 U.S. 579, 614] by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy."

Justice Douglas emphasized the supremacy of the rule of law -- as enacted by Congress -- which lies at the heart of our system of Government:

The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article II, [343 U.S. 579, 633] Section 3 also provides that the President "shall take Care that the Laws be faithfully executed." But, as MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER point out, the power to execute the laws starts and ends with the laws Congress has enacted.

And in a Concurring Opinion which ought to be read by every Bush defender, Justice Jackson made clear just how incompatible with our Republic are theories which give the President the right to act in violation of Congressional statute:

The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, "The executive Power shall be vested in a President of the United States of America." Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: "In our view, this clause constitutes a grant of all the executive powers of which the Government is capable." If that be true, it is difficult to see why the [343 U.S. 579, 641] forefathers bothered to add several specific items, including some trifling ones.

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.

And finally, Justice Jackson demolishes the claim that the exigencies of "war" -- especially undeclared "wars" -- allow the President to claim the right to act in violation of Congressional laws based on claimed "inherent executive authority":

Thus, it is said, he has invested himself with "war powers."

I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. 10 [343 U.S. 579, 643] . . . .

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although [343 U.S. 579, 650] it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.

We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. 19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. [343 U.S. 579, 651]

Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.

The arguments which Bush defenders are trying to use in order to justify his violations of the law have all been considered -- and decisively rejected -- by the Supreme Court. That fact only exacerbates the sheer lawlessness of the Administration's conduct.

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