How Much Authority Does the President Possess When He Is Acting as "Commander In Chief"?
Evaluating President Bush's Claims Against a Key Supreme Court Executive Power Precedent

By EDWARD LAZARUS
Thursday, Jan. 05, 2006

In my last column, I questioned the legality of the Administration's secret domestic spying program. Since then, President Bush has been out on the hustings arguing that the program was perfectly legal.

Such an argument fights an uphill battle, to say the least - in my view, a futile one. Ordering the warrantless wiretapping of Americans contravenes the constitutional separation of powers by flouting the exclusive legal regime for intelligence-related wiretapping that was established by Congress in the Foreign Surveillance Intelligence Act (FISA), in order to protect the privacy of American citizens and respect the concern about government surveillance reflected in the Fourth Amendment.

Despite numerous public pronouncements, we still don't know the details of the advice the President received in concluding that the wiretap program was somehow constitutional and otherwise legal.

We do know, though, that the President's basic strategy on this issue is to make a blanket pronouncement that he has the constitutional authority as "commander in chief" to exercise such power, and then to emphasize that the wiretapping program is essential to the fight against al Qaeda and other terrorist organizations.

Do these claims set forth even the bare bones of a plausible case for the constitutionality of the President's circumventing Congress and the Constitution's separation of powers?

In this column, I'll explain why the answer is no - drawing upon a key Supreme Court precedent that indicates that there are real limits on Presidential power, and that President Bush exceeded them.

The Precedent Youngstown Sets When It Comes to Broad Use of Executive Authority

That precedent is Youngstown Sheet & Tube Co. v. Sawyer. There, the Justices considered the constitutionality of President Truman's executive order seizing private steel mills during the Korean War. In the end, they held the order unconstitutional.

The Youngstown Steel case arose from President Truman's decision that an impending strike by steelworkers could jeopardize U.S. participation in the Korean War. To head off the strike, Truman ordered the Secretary of Commerce to seize and operate the nation's steel mills. The Secretary followed this directive, and Truman then immediately notified Congress (and thus, the public), which took no contrary action.

Truman had no statutory authorization for the mill seizures, but he took the view that they were valid under his inherent authority as president and commander in chief.

The steel industry, however, challenged Truman's executive order. The industry claimed that Congress, when it passed the Taft-Hartley Act in 1947, had provided the exclusive framework for settling labor disputes; and that Congress had explicitly rejected a seizure provision when considering Taft-Hartley.

At the Supreme Court, Truman's view of the law lost 6-3.

Justice Jackson's Crucial Concurrence: The "Lowest Ebb" Language, Applied to Bush

Justice Robert Jackson penned an extremely influential concurring opinion in the Youngstown case, expanding upon the reasons undergirding the Court's result. In retrospect, his opinion is remarkably prescient. Indeed, it has emerged, over time, as the single most influential guidepost for assessing presidential claims of inherent authority.

Reduced to its essentials, Jackson's concurrence sets up a taxonomy of presidential power. That power is at its strongest, Jackson wrote, when the President acts pursuant to congressional authorization, and less certain in the face of congressional silence. But "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system." (Emphases added.)

This is the high hurdle the President must cross. And in light of Truman's failure, it is exceedingly difficult to see why Bush should prevail. Without question, Bush's flouting of Congress and democratic principles is more severe than Truman's was.

To begin with, FISA's prohibition on unauthorized wiretapping is explicit, whereas Taft-Hartley only proscribed government seizures by implication. Even more important, while Truman gave Congress and the public immediate notice of his actions, Bush acted in secret, made only incomplete and classified disclosure to Congress, and foreswore public disclosure entirely, beginning in 2002 - until a leak revealed him.

Truman might have claimed that his quick, forthright disclosure provided at least some of the democratic accountability that may sometimes justify borderline executive action. But Bush can make no such claim.

Claims that Congress Somehow Approved Warrantless Wiretapping are Extremely Weak

It is no surprise, in light of the now widely-accepted principles that Jackson announced, that some on the President's team have sought to move the spying program out of Jackson's "low ebb" category - the category that applies when the President directly clashes with Congress. They have tried to do this by claiming some kind of congressional authorization for undertaking domestic national security wiretaps in direct violation of FISA - via the authorization of the use of military force in Afghanistan after 9/11.

But Bush himself seems to recognize that it is downright embarrassing to try and claim, all evidence to the contrary, that Congress, in authorizing the use of force after 9/11, somehow repealed FISA's finely wrought scheme for national security wiretapping. That detailed scheme not only includes the FISA Court (typically all but a rubberstamp for Presidential requests), but also provides a time period, in time of war, for a president to seek additional powers from Congress. Bush did not bother to make any such request; he simply bypassed Congress, and acted secretly, instead.

Justice Jackson's Concurrence: Strong Policy Objectives Don't Excuse Constitutional Violations

With no legal defense to speak of, the President has put forth a defense based on policy. Indeed, the President's main tack, recently, has been to try to shift the spotlight away from any legal justification for the spying program, and onto the pressing need for new tools to fight the war on terror.

Interestingly, Justice Jackson anticipated just this kind of tactic. Presciently, he wrote in his concurrence that "[t]he opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies-such as wages or stabilization-and lose sight of enduring consequences upon the balanced power structure of our Republic." (Emphasis added.)

As Jackson recognized, the true issue in Youngstown was not the seizing of steel mills -- any more than the issue today is the need to vigorously pursue al-Qaeda and other terrorist networks. The issue is the integrity of the very structure of our government.

Today, because the President bypassed both Congress and the public, the issue runs even deeper than with Truman. The issue now is encapsulated in the simple but devastating question of whether the President is above the law.

President Bush Sets Up Another Bypass: Signing the McCain Amendment With Reservations

A related recent development puts the point in sharp relief. Last month, to much public fanfare, the President brought John McCain into the White House to announce before the assembled cameras that he was going to drop his opposition to McCain's proposed legislation banning cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world. But under the Administration's approach to executive power, this concession -- as well as Bush's subsequent signing of the ban on torture -- was all an elaborate charade.

After all, under the Administration's theory, Congress has absolutely no power to limit the president's inherent authority as commander in chief to fight the war on terror. Which means that Bush signed the McCain bill while reserving to himself the right to violate its anti-torture provisions with impunity - and, of course, to do so in secret, so that the American people will never know (barring another leak to the New York Times) that he has flouted this very popular law.

In fact, when signing the Defense appropriation bill containing the McCain Amendment, Bush issued a signing statement euphemistically reserving just this authority to ignore the very law to which he had just put his name. Thus, the President wrote: "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

That signed statement shows, in microcosm, how the President sees the separation of powers: The President, in his view of the world, can interpret away constraints on his power, such as those in the McCain Amendment, or FISA before it. And the courts can hardly question his dubious "interpretations" even if they gut the very statutes they construe: After all, there are "constitutional limitations on the judicial power" - though not, apparently, on the power of the executive.

In the coming years, the nation will decide whose view of the presidency, Justice Jackson's or President Bush's, prevails. And on the answer, no small amount of our claim to democratic governance depends.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.