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Statutes and Presidential Power: The Case of Domestic Surveillance

JURIST Guest Columnist Neil Kinkopf of Georgia State University College of Law says that the broad interpretations of presidential power under statute being offered by defenders of the President's domestic surveillance program threaten to undercut the constitutional balance of power and even basic democratic values...


The Bush Administration’s domestic surveillance program has been the subject of extensive analysis. My keyboard does not contain the 1,000 or so words that will finally put to rest the matter of the program’s legality. Instead, I prefer to draw a more general lesson about the nature of presidential power: as a practical matter, the scope and content of the President’s power is determined by statutes.

This is not a new phenomenon. Yet, most scholarship on presidential power has focused on the Constitution rather than on the statutes that grant and limit presidential power. In addition, interesting and important questions relating to the scope of presidential power have arisen with some frequency as the nation grapples with how best to respond to the challenges of terrorism in the wake of the attacks of September 11, 2001. Typically, these issues have been viewed in broad constitutional terms: does the President have constitutional power to order the use of torture or to order warrantless wiretapping of communications with persons suspected of a link to terrorist groups, to take two prominent examples. In fact, this broad phrasing of the issue is highly misleading for it ignores the crucially important statutory context within which the President actually operates.

In each of the examples just cited, there were statutes that apparently prohibited the President’s action and, at least for the wiretapping program, a statute that might be taken to have authorized the President’s action. Moreover, the Administration’s defense of its domestic surveillance program has been couched primarily in statutory terms – that the Authorization of Use of Military Force creates an exception to the statutory warrant requirement found in the Foreign Intelligence Surveillance Act. (This may be a reaction to the firestorm of controversy that greeted the Torture Memo and its reliance on bare constitutional power.) Once we recognize the central role that statutes play, our focus will immediately be drawn to issues of statutory interpretation in the context of statutes that grant and limit presidential power.

In a recent, seminal article Professors Curtis Bradley and Jack Goldsmith tackle a series of interpretive issues relating to the scope of the President’s power under the Authorization of Use of Military Force. (“Congressional Authorization and the War on Terrorism,” 118 Harv. L. Rev. 2047 (2005).) In this article, they propose reading the President’s power broadly, unless the President’s exercise of power implicates individual rights, in which case it is to be understood narrowly. This approach tracks the framework that Professor Cass Sunstein advocates for construing the President’s statutory powers relating to military and foreign affairs generally. Professor Sunstein argues that the President should be accorded “super-strong” Chevron deference for his interpretations of his own statutory power over military and foreign affairs, unless the President’s interpretation implicates “sensitive constitutional interests.” (“Administrative Law Goes to War,” 118 Harv. L. Rev. 2663 (2005).) Moreover, in a seemingly gratuitous concurring-opinion footnote -- that may have landed him his appointment as Chief Justice -- Judge John Roberts mused that the President should enjoy Chevron deference when he interprets his own statutory powers. (Acree v. Republic of Iraq, 370 F.3d 41, 63 n.2.) Together, these works indicate a significant movement toward the position that statutes relating to the President’s power over military and foreign affairs should be read expansively and deferentially with respect to presidential power, at least where such a reading does not implicate substantial individual rights.

The claim for a broad and deferential reading of presidential power is unsupported in precedent and objectionable on normative grounds. The teachings of precedent are somewhat perverse; one would expect to find that precedent strongly supports a broad and deferential approach to interpreting the President’s authority, particularly in the areas of foreign and military affairs. In fact, it does not. One of the first great controversies to come before Chief Justice John Marshall was the legal status of the naval quasi-war with France. In Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801), the Court confronted the question of whether Congress had authorized a naval war with France, if so what were the extent of the President’s powers to prosecute that war. The lawyers for Captain Talbot sought to introduce the orders that President Adams had issued because “the court would consider well the opinion of the executive before they would decide contrary to it.” Nevertheless, the Court refused to allow Adams’s opinion to be read, reasoning that the President’s views are irrelevant. In a subsequent case, Little v. Barreme, 6 U.S. (2 Cranch) 64 (1804), Chief Justice Marshall ruled that the President could not order the interception of any ship he suspected of being an American ship trading with the enemy. By statute, Congress had authorized the interception of American ships bound to French ports. President Adams ordered the interception of ships bound to or from French ports, on the grounds that the prosecution of the naval war and the prohibition of trading with the enemy would be nugatory if the interceptions were limited to the terms of the statute. Again, the President’s views were irrelevant to the Court, which concluded that seizure of ships bound from French ports was unauthorized.

More recently, the Supreme Court refused to defer to the President’s reading of his own power in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). This case brought before the Court the legal status of U.S. citizens designated and held as enemy combatants. The Solicitor General asked the Court to defer to the President, arguing “respect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection an ongoing conflict ought to eliminate entirely individual process.” In the alternative, the Solicitor General argued that any judicial review should proceed under a very deferential “some evidence” standard. Justice O’Connor’s plurality opinion emphatically rejected these claims for deference. Instead she asserted the important role that the Court must play in policing the boundaries of presidential power, even over military and foreign affairs. Her sound bite reads: “a state of war is not a blank check for the President ….”

The normative case for deference is also troubling. First, such deference would dramatically shift power toward the President and away from Congress. If a presidential assertion of power is met with deference rather than scrutiny, the opportunity for the process of checks and balances to operate is diminished. Take the domestic surveillance program, for example. If a court were to defer to the President’s interpretation of his own authority, then Congress may respond only by enacting a statute directly prohibiting or regulating this surveillance. Given the President’s veto power, however, this or any other assertion of power can only be prohibited or regulated if the prohibition can muster a veto-proof supermajority.

Such a shift of power to the President threatens other constitutional values in addition to the constitutional balance of power between the President and Congress. Insofar as the President is able to design important programs without input from Congress – again consider the domestic surveillance program – the basic constitutional value of deliberation is undermined. Without congressional involvement, and the public participation that accompanies the legislative process, fundamental value choices will be made by the President, acting alone and in secret. From this perspective, the domestic surveillance program is a symptom of a much deeper problem – it represents a grave departure from basic democratic values.


Neil Kinkopf is a professor at Georgia State University College of Law

March 13, 2006


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