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.

Monday, January 02, 2006

Powerline and Dictators

A couple of weeks after everyone else discussed the case, it seems that John at Powerline finally got around to reading Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) -- not that his failure to read it earlier stopped him from pedantically opining that Bush's NSA surveillance was perfectly legal. The Supreme Court in Youngstown held that President Truman -- faced with a steel worker's strike which would severely undermine America's war effort in Korea -- could not constitutionally seize the nation's steel factories and force them to produce steel, because Congress had refused to give him that authority and the President has no right to act contrary to Congressional intent.

Now that he's finally read the case, John, to everyone's great shock, has concluded that it does not support the view that Bush acted illegally when he ordered eavesdropping which Congress expressly prohibited by law. John claims that the situation in Youngstown could not be any more irrelevant to the current NSA eavesdropping scandal because Truman in Youngstown, unlike Bush here, was so plainly overstepping his bounds by attempting to seize steel factories in the face of Congressional opposition -- the case was such an "easy" one -- that, according to John, the "remarkable fact about Youngstown is that three justices dissented."

This is so, says John, for this reason:

That holding seems clearly correct; if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator.

So if, as John argues, a President who carries out domestic policy in the absence of Congressional intent would be a "dictator," what would a President be who eavesdrops with no warrant on the telephone calls of American citizens while they are in the United States, even though an act of Congress makes it a crime to do so?

Truman's conduct was not expressly prohibited by Congress; Congress simply refused to give him seizure authority. By obvious contrast, Congress did not merely remain silent with regard to Bush's warrantless eavesdropping. It expressly made it a criminal offense to do that. And Bush did it anyway. It therefore defies basic rationality to call Truman a would-be "dictator" for doing something which Congress did not prohibit, while still defending George Bush's conduct here which was undertaken in defiance of Congressional law.

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