Strengthening Constitutional Self-Government

No Left Turns

The President’s War Powers Include Surveillance

On June 9, 1941—six months before the Japanese attack at Pearl Harbor that would bring the United States into the Second World War—President Franklin Roosevelt issued an executive order seizing an aircraft manufacturing plant operated by North American Aviation, Inc. in Inglewood, California. The seizure was necessary, wrote President Roosevelt, in order to prevent a strike by union employees from crippling aircraft production that was vital to the national defense. No act of Congress authorized the seizure, and the existing procedures for condemnation of private property were not followed, making President Roosevelt’s actions technically “illegal.” President Roosevelt also imposed 48-hour work weeks and barred payment of double-time pay for weekend and holiday pay in the nation’s manufacturing plants, all by executive order and in violation of the Fair Labor Standards Act, because he deemed the actions necessary to the nation’s war effort.

A decade later, on April 8, 1952, President Harry Truman ordered the seizure of the nation’s steel mills in order to avert a strike that would cripple the steel production necessary to our military involvement in Korea. Like Roosevelt before him, Truman’s order did not comply with the statutory requirements for condemnation of private property. Unlike Roosevelt’s actions, though, Truman’s seizure order was challenged all the way to the Supreme Court, which ultimately held in Youngstown Sheet & Tube Co. v. Sawyer that none of the President’s constitutional powers—as chief executive obligated to take care that the laws be faithfully executed, or as commander-in-chief—were sufficient to sustain the seizure. Justice Jackson, in a landmark concurring opinion, found “alarming” the claim that the President could “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.”

Sentiments such as Justice Jackson’s now serve as the foundation for the claims of “illegality” being leveled against President Bush in the wake of the disclosure in last Friday’s New York Times that the President has authorized eavesdropping on international calls originating in the United States to Al Queda operatives abroad. The President’s order “violated” the requirements of the Foreign Intelligence Surveillance Act, and was therefore “illegal,” assert the President’s detractors.

Before accepting such contentions, it is worth exploring a bit more the subtle nuances of Justice Jackson’s opinion, for he did not say that the President was not without authority absent statutory authorization. Obviously, the President’s authority is at its peak when he acts both pursuant to his own authority under the Constitution and by virtue of additional statutory authority given to him by Congress. Less strong, but no less certain, is when the President acts by virtue of his own constitutional powers, in the face of congressional silence. Finally, Justice Jackson even conceded that, at times, the President could act pursuant to his Article II constitutional powers even contrary to an explicit act of Congress. Congress cannot pass a law that curtails powers the President has directly from the Constitution itself. The problem for Truman, according to Justice Jackson, was not that he exceeded statutory authority, but that his constitutional war powers did not, under the circumstances, permit him to trump the mechanisms of the relevant congressional statute. Congress had not authorized the war, and the nation’s steel mills were too far removed from the “theater of war” to fall under the President’s power as Commander-in-Chief.

A careful review of the Youngstown holding in general, and of Justice Jackson’s concurring opinion in particular, yields several important distinctions that vindicate President Bush’s latest actions in the war against terrorism. First, Congress has authorized the use of force in terms broad enough to permit the President’s actions. The Supreme Court has already held in the Hamdi case that the statute was broad enough to give the President authority to detain U.S. citizens as enemy combatants; surely it is therefore broad enough to serve as authority for the much lesser intrusion on personal liberty at issue with surveillance of international calls made to our enemies.

Second, as September 11 made very clear, the United States is a “theater of war.” The agents of our stateless, terrorist enemies are here on U.S. soil, aiming to strike at our infrastructure, our citizens, and our very way of life at every possible opportunity. Even if the Use of Force Authorization was not sufficient to sustain the President’s executive order, his own powers as Commander-in-Chief and as President, derived directly from the Constitution itself, permit this carefully circumscribed effort at thwarting the next devastating terrorist attack against our nation.

In other words, the President’s legal advisors were correct in counseling that these actions were within his lawful constitutional authority, and the quick claims by the President’s detractors of “illegality” have a stench of political opportunism or, worse, demagoguery about them that is not only inappropriate but dangerous in time of war. That this war has not produced the burdens on our civilian population as wars in times past—we know nothing of the sacrifices of rationing, of a large-scale draft, or of victory gardens and war bonds that were the hallmarks of the Second World War, for example—should not lead us to forget that we are in a war as dangerous to our survival as a free people as any we have faced.

After suspending the writ of habeas corpus during the Civil War, an action that was believed to be authorized only by act of Congress, President Abraham Lincoln asked whether all the laws but one were to go unexecuted lest that one be violated. The preservation of the Union required the action, even if Congress had not authorized it, and Lincoln was statesman enough to understand that his own powers as Commander-in-Chief could not be circumscribed by statute, even though those actions might be claimed to be “illegal.” President Roosevelt understood this as well, and took actions that exceeded and were even contrary to existing statutes. Thank God he did, or we might not be living in a land as protective of our liberties as this is.

Discussions - 13 Comments

summation, sir. My hat is off to you. Common sense is not dead after all.

Mr. Eastman:

I enjoyed reading your post. I did not excell in constitutional law when I studied it, but I think you are being rather broad concerning Hamdi and its value as precedent.

1. It was a plurality opinion. The only reason it was the judgment of the Court was because Souter and Ginsberg joined the opinion on very narrow grounds.

2. The opinion itself was very narrow. The opinion only ruled on people that were "enemy combatants." By its own terms, the opinion only covers people who were found in the field of battle helping the enemy. Furthermore, Hamdi’s plurality explicitly states that Milligan is still good law. When a citizen is not a prisoner of war, is found in a state that still has a functioning court system, then ordinary process must be used, unless Congress has suspended habeus corpus.

4. Hamdi did not state that the President did not have to follow any process, rather it streamlined existing process, and created new rules of permissible evidence for these sorts of trials. There is still to be a hearing though. This is why Thomas dissented. He thought the executive had the power to do whatever it wanted. He was the SOLE Justice who thought this.

5. Chief Justice Rehnquist is gone, and O’Connor will soon be gone as well. I have no idea how Roberts or Alito would vote. If Alito is a "Scalia" lite then I do not see how Bush can win unless Thomas joins an opinion he thinks is too restrictive.

6. The entire Hamdi opinion is bizarre. I think any opinion featuring a dissent by Scalia and joined by Stevens is obviously one where "conservative" and "liberal" can no longer serve to predict votes on the court.

One could say Bush was illegal and not argue in bad faith. Inherent powers per the Justice Jackson Youngstown concurrence would merely mean that the law forbidding such exercise of powers was unconstitutional, but it would be odd to speak of breaking laws as not illegal. The actions could be illegal but the law would be unconstitutional.

I do not think war powers will extend to spying on American citizens as long as judicial machinery is operating. It might apply to non-citizens.

Steve: Whether the relevant "judicial machinery" was operating in a timely fashion is very much a point in contention. As AG Gonzales and Gen. Hayden (head of NSA) noted in their press conference, FISA was not designed for "detect and prevent" surveillance cases where speed is of the essence.

The whole transcript of their remarks to the press is worth reading:


You are right, that is an important question. The legal question prior to your question is which branch determines (legislative or executive) whether the judicial machinery is not up to the task. The Supreme Court has been pretty consistent in stating that the legislative is the appropriate branch to make this determination, and when it does make this determination, it ought to suspend habeus corpus per the Constitution.

I think this issue has the potential to split conservatives (like so much of what Bush has done) if Hamdi is any indication. Thomas thought the executive could act without reference to any laws (it had inherent powers, what the President’s supporters are arguing right now--that position got 1 vote in the Court) while Scalia thought that Congress must revoke habeus corpus before anything could be done to citizens that did not accord with proper process (what I think). Scalia’s position got two votes. The position that got four votes (including Rehnquist and O’Connor for what it is worth) created a new "process" out of thin air (much to Scalia’s annoyance). I think it is probably unwise for the judiciary to invent new rules of evidence and procedure on the fly for American citizens. I side with Scalia; the legislature MUST be made to have courage.

The fact that people are arguing that Congress cannot deal with this matter worries me. Either they are lying in order to support Bush, they prefer supporting an individual rather than republican process (passing laws) OR, they are correct and Congress is so corrupt it cannot be trusted to pass legislation that will protect us all. This is amazing. Congress is THE legislative branch. If this body is so corrupt it cannot provide for our protection, then it seems America is in deep trouble. If this is true it hardly matters what the legal answer is, because unless the war ends quickly it seems likely executive power will grow to an amazing extent. People will not know they have lost freedoms (one never does) but they will have to adjust to a new criminal regime.

Liberals and civil libertarians often quote Franklin’s saying that people who give up liberty for security are stupid, but his saying is stupid. People desire to be safe (either real or perceived safety) above all else, and this is the natural impulse that creates all governments. This was the impulse that produced the Constituton. The founding fathers were afraid men of property (who felt unsafe) would consent to despotic regimes, so they created the constitution to make property safer. If Congress cannot provide for our safety, then the executive will, to the detriment of rights, etc. and no one will complain too much.

Are you going to law school Steve?

So give me liberty or give me death, but not quite yet...first give me warm fuzzies and perscription medicine, and whatever else I need to feel safe so I can grow old and die of old age?


I am going to OSU Law school.

My observations about preferring safety over liberty are nothing new. That is the state of nature theory. People have complete freedom to do whatever they want, but they get tired of feeling insecure, so they form a government; classic Hobbes and Locke.

Merry Christmas, Steve and congrats on getting into a good law school.

I am somewhat familliar with Locke and Hobbes, and happen not to agree with attributing to Locke a safety over liberty view point...

In any case I don’t think people living in a state of nature enjoy complete liberty, or even perhaps partial liberty. Nature is not plentiful and satisfactory to man tabula rasa, rather it must be cultivated. Nature must be conquered. Somewhere as the conquest of nature progresses, as men start to grow crops, raise famillies in a certain geographic area (not hunter gatherer) and then group into tribes and latter form cities, a whole host of developements occur as a result of increased productivity that eventually includes government. I don’t think that the people somehow conceive of government as a result of perceived dangers and threats, rather there were always actual dangers and threats and there was always some form of government even if originally it was the big male of the household. I think economies of scale, and close proximity to others encouraged the development of governments, in addition to this the development of governments gave advantages to the citizens of such civilizations over the nomadic hunter gatherers who did not have governments. Later on of course after much progress had occured people started wondering why we needed so much government, and immagined a state of nature where complete freedom existed. So I would say that Liberty is a modern creation, liberty is seeing what is now possible that wasn’t before and wanting more out of life. In fact I would probably argue that people are willing to sacrifice a little security for freedom. That is why people get drunk, and smoke. Nowadays people get so tired of feeling secure that they jump out of planes and bungy jump. I am sure that is a level of security and liberty unthinkable to the original farmer. In fact some of the decendents of these original farmers here in Iraq, can barely comprehend it. Crazy Americans. Safety makes Liberty possible. Liberty does not make safety possible.

In other words safety opens up more rational possibilities. In other words man in a state of nature may be perfectly free to jump from a great height but only modern man can achieve an even greater height and repeated jumps. Without a parachute modern man considers it suicide, not perfect liberty. But note that safety is not the exclusive domain of the government, in fact most of the things that make us safe today were developed as a result of tinkering with Science, not politics. Clorine tablets, seat belts, air bags, polymers, various medicines, who can name them all?

Heck we even developed email and phones and other devices to help us communicate over long distances... and frankly my freedom to use this stuff isn’t limited by the fact that the government monitors the use of DOD computers such as this one... my freedom to use it is only limited by the time I have to spend, and the line behind me... Cheers and merry christmas from Iraq.

Congress is THE legislative branch. If this body is so corrupt it cannot provide for our protection, then it seems America is in deep trouble.
Exactly. And what would be the indicators which point in the other direction? One can, I fear, count on the fingers of one hand the Republican members of the Senate whose aim it is to provide for the protection of anything other than his or her own re-election prospects, which the Republicans increasingly appear to gauge by what Harry Reid thinks. And increasingly, it is apparent that the Democrat members are opposed to those measures that would provide for "our protection." If Congress is "our protection," I fear we are unarmed. . .

I have dug up more stuff on the North American Aviation strike and Executive Order #8773 that may be of interest.

How does this analysis differ from a suggestion that the US president has dictatorial powers and is above the law in all respects?

What you are arguing is that, despite the constitution specifically saying the president has to carry out the will of congress (ie laws), and that congress has the duty to define the limits of presidential action (and indeed the limits of the powers of all officers of the state) when the congress acts specifically to delineate presidential power in regard to this very question the president can simply ignore what they say.

You say this despite the fact that the "war" going on currently is a metaphorical war, like the "war" on crime or the "war" on drugs. You say this despite the fact that the actions under scrutiny involve spying on US citizens on US soil, not foreign powers, let alone beligerent foreign powers.

If this case comes under the war powers of the president then what possible action could not be argued that way? And once argued that way...

Who decides?

The constitution says congress decides and congress did decide in enacting FISA but you say the president decides, an obvious violation of the separation of powers, checks and balances and the text of the constitution.

If any time the US president himself gets to decide the facts whenever he claims that an action he has taken comes under his war time powers then aren’t you saying the US president can justify any action at all by this method?

People might object but since the president gets to have the last word -- not congress -- it doesn’t matter how tenuous the connection to an actual pitched battle or commander in chief power.

Therefore how do you defend your view from the charge that it is nothing more than despotism with the thinest veneer, a claim of "war" and security?

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