Why the President's Defense of Executive Power to Wiretap Without Warrants Can't Succeed in the Strict Constructionist Court He Wants

By VIKRAM AMAR AND ALAN BROWNSTEIN
Friday, Feb. 17, 2006

A few months ago, President Bush said he picked Chief Justice Roberts and Justice Alito largely because he considers them "strict constructionists." In the President's words, "[w]e've got to make sure . . . to have people who serve on the bench who are not going to try to legislate, but who will strictly interpret the Constitution." The President's message was clear: Justices should narrowly apply the law as it exists - derived from non-judicial sources like text, history and unbroken societal tradition - rather than "create" law in the context of adjudicating disputes.

Chief Justice Roberts in his confirmation hearings reinforced this idea with his memorable analogy to baseball umpiring. "I will remember," Roberts explained, "that it's my job to call balls and strikes, and not to pitch or bat."

Today, the President's warrantless spying on telephone and e-mail communications between people in the United States and in foreign countries is being aggressively challenged on constitutional grounds. A case involving the President's program could possibly reach the high Court. And given the fact that this is the first major constitutional controversy to arise since the new "strict constructionist" Justices have been confirmed, now seems like an ideal time to test the efficacy of the President's constitutional vision against the realities of constitutional practice.

Ironically, in order to resolve this dispute - and especially to resolve it in the way the President wants - the Court would very probably engage exactly the kind of creative "law making" policy-oriented analysis the President rejected so emphatically such a short time ago. For reasons we'll explain in this column, the President might be well-advised to hope that Roberts and Alito aren't quite the strict constructionists he touted.

To demonstrate the limits on the utility of the President's strict constructionism - and the unhelpfulness of the "balls and strikes" umpiring metaphor - we examine the eavesdropping question from three "strict constructionist" perspectives: The constitution's theoretical foundations, its text and its original understanding.

The First Strict Constructionist Tool: Foundational Principles

First, let's consider underlying foundational precepts - the mega-principles, if you will - that undergird the Constitution. Some of these, at least, are not open to serious argument. One is popular sovereignty - the idea that the expressed, considered will of the people be respected -- and its practical corollary, political accountability on the part of government officials. This comes straight out of the Declaration of Independence. "Governments are instituted among men deriving their just powers from the consent of the governed." Nothing activist here.

Another basic principle is the need to diffuse power to avoid its abuse. Again, this is Constitutional Law 101. The basic structures of the United States government - the separation of powers and the system of checks and balances - are direct manifestations of this overriding concern. This axiom - like that concerning popular sovereignty - is clearly accepted.

The President's assertion of inherent executive power to conduct secret surveillance of telephone and e-mail messages of American citizens without prior congressional authorization or judicial oversight directly conflicts with both of these foundational principles.

Secret surveillance of private communications, by its very nature, is immune from political accountability; the people cannot use the electoral process to sanction clandestine government conduct of which they are unaware.

Similarly, and obviously, no direct checks and balances apply to executive conduct that, according to the Administration, need not be authorized by congressional legislation and is immune from judicial review. Whether the spying that has already occurred has been limited to serve only legitimate, indeed, compelling government interests is largely irrelevant to this debate. The problem with unchecked power is not that it will be misused in every instance, but that over time it will always be abused.


This is not to say that the President's position is necessarily wrongheaded or unpersuasive. The President argues that the security of the nation and the protection of our citizens from acts of terrorism require the unfettered and unilateral exercise of the powers he claims are vested in his office. These are critically important interests, and, for the purposes of this commentary, we are agnostic on the question of whether they justify the conduct in question. Our contention does not go to the ultimate merits of this dispute, but rather on the way the Supreme Court must go about resolving it.

We suggest that once we look at the eavesdropping question for what it is -- a clash between foundational constitutional principles and vital societal interests - there is no way for a Court to adjudicate the dispute without making law. At this level of abstraction, there simply is no existing law to apply. If we are going to stick with the baseball metaphor the Chief Justice previously employed, a strict constructionist analysis using foundational constitutional theory alone can only swing blindly at this question and miss. That's "strike one" for the strict constructionist side.

A Second Strict Construction Tool - Constitutional Text From Articles I and II

Of course, strict constructionists can and do look to the text of the Constitution for additional information. So let us examine carefully the relevant text.

Article II does state that "The President shall be Commander in Chief of the Army and Navy of the United States." That is a formidable grant of power. Article II also vests the "executive power" in the President. But Article II does more than confer powers onto the President -- it also imposes obligations upon him. In particular, Article II mandates that "he shall take Care that the Laws be faithfully executed."

For a strict constructionist, that last provision raises an obvious question. Who gets to make the laws that the President must faithfully execute? The very nature of this requirement strongly suggests that it isn't the President. It would be an odd turn of phrase to require the President to faithfully execute the laws he himself had created.

But the constitutional text is much more specific than that. Article I says: "All legislative powers herein granted shall be vested in a Congress in the United States." From a strict constructionist perspective, the word "All" probably means "All" and "All" is a lot.

Moreover, there is something of a bittersweet irony here when this language is juxtaposed next to the President's language we quoted earlier - about making sure that the judicial branch does not usurp power by legislating from the bench. It is turns out that there is another branch of government that isn't supposed usurp authority by engaging in some impromptu legislating - the executive branch. As a textual matter, it sounds like legislating from the White House is just as off limits as legislating from the bench.

There is a caveat in Article I, however. Congress is vested only with "All" powers herein granted. Is Congress granted the power to make law with regard to wars and military affairs?

Is it ever.


Article I provides that Congress shall have the power to "Declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;" "To raise and support Armies;" "To provide and maintain a Navy;" "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;" and "To make Rules for the Government and Regulation of the land and naval forces." Further, by implication, Congress is authorized to suspend the writ of Habeas Corpus in cases of Rebellion or Invasion.

Thus, in plain terms, Congress is given in Article I the power to declare when military force should be exercised against enemy nations or non-sovereign enemies such as pirates (or those who are arguably their modern equivalents, terrorists). Congress makes the rules that govern the operation of the military. It defines what constitutes non-national threats to our country and the nature of our government's response to such transgressions. It determines what resources will be available for conducting military operations. And it decides when important mechanisms that safeguard the liberties of citizens must be suspended.

To put our point simply, we think it impossible to read the allocation of authority provided in the constitutional text and conclude, on the basis of text alone, that the President has the power to engage in the surveillance activities at issue without congressional authorization. For a Court to find in the President's favor on this issue, it must go far beyond the law as written in the Constitution and provide an answer from some other source - or create rules of its own to deal with the problem.

More Constitutional Text - the Fourth Amendment

Nor is Congress the only branch textually charged with overseeing the Executive in this regard. On the question of judicial oversight of executive action, the Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Surely, it is too late in the day to argue that electronic eavesdropping of telephone calls and e-mails does not constitute a search or seizure - and we do not understand the President to take such a position. But what other argument is available from the text? No exceptions to the Fourth Amendment's applicability are listed. The surveillance at issue is not particularized, nor is there any suggestion that it is grounded on probable cause. No warrants authorized the searches.

The only other argument from the text that could be made supporting the President is that electronic eavesdropping in this circumstance is not "unreasonable." Determining what is or isn't "reasonable," standing alone, however, can involve a value- and policy-based decision - precisely the kind the President doesn't like courts to make. (One of us has argued that overarching constitutional values and norms can guide a "reasonableness" inquiry, but even this more structured approach would not likely satisfy truly strict constructionists.)

One might argue that when the Constitution itself (here the text of the Fourth Amendment) explicitly employs language that requires courts to act like legislatures and, in essence, to make law, such judicial lawmaking is consistent with a strict constructionist methodology. But this argument undercuts the very core of the strict constructionist methodology, because much of the constitutional text uses open-ended terms that invite such judicial law making. Thus, the only conclusion a fair umpire can reach here is that a strict constructionist analysis, standing alone, cannot support the President's position. That's "strike two."

Strict Constructionists' Use of Original Understandings

Strict constructionist judges are not limited to foundational theory and text, however. As we know from the Court's Eleventh Amendment jurisprudence (involving state immunity from damage suits), strict constructionist jurists are quite prepared to ignore the text entirely if the actual language of the document does not reflect what they believe the framing generation understood a provision to mean. But, alas, an original intent analysis provides little solace to the President or his supporters on this issue.

The framers were certainly well aware of the risks to civil liberty caused by threats to the nation's national security. The framers also recognized the danger posed by military exigencies to the allocation of power among the branches of government. War and its attendant apprehension would tend to "increase the executive at the expense of the legislative authority" said Alexander Hamilton in Federalist No 8. The constitutional scheme of things was intended to mitigate these tendencies, not to approve or promote them.

Indeed, Stanford Professor Jack Rakove has explained:

[The question of the President's claims of broad authority in maintaining national security] is surely informed by the original understanding of the quantum of authority the president can claim as Commander-in-Chief or as the repository of the executive power vested by Article II, Section 1 of the Constitution. Contrary to the view [being asserted by some today] that the American founders retained a broad conception of the unilateral power and discretionary authority of the executive in the realm of military and diplomatic affairs, the adopters of our Constitution rejected a monarchical conception of executive prerogative, and instead maintained and extended the legislative supervision and control of executive power that were the profound legacy of Anglo-American constitutional history since the early seventeenth century.

Emphasis added. (Rakove's analysis is drawn from an amicus brief on behalf of founding era historians filed in the pending Supreme Court Hamdan v. Rumsfeld case, involving the detention of Osama Bin Laden's chauffeur).

Of course, there may be powerful counterarguments that override these original intents/original understandings. Conditions have changed dramatically over the last two centuries. Advances in technology and communications might now require a re-allocation of power in favor of the executive branch. The dogs of war today may be too fast and powerful to be mastered by anything short of ample and inherent executive power.

This may be a fair position. But in order to adopt it, the Court must reject the original understanding and develop new policies for determining the appropriate scope of presidential power in times of international stress and conflict. That is judicial law making, pure and simple. It is also "Strike Three" for the strict constructionists.

By now, readers know the score: The President's constitutional argument in defense of his surveillance activities can't even get him to first base if the Constitution is interpreted the way he says he wants it to be.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at UC-Davis School of Law.