Glenn Reynolds shows why the bill to give retroactive immunity to telecom companies involved who turned over data to the government as part of anti-terrorism investigations is not an ex post facto law. He also has another interesting follow-up post on how the idea of strong Executive powers under the Constitution is nothing new—using an example from the Ninth Circuit, probably the nation’s most liberal that allow President Ford to essentially extend a lapsed statute by Executive Order.
The idea that the “unitary executive” theory is some novel and dangerous departure from Constitutional principles doesn’t have much to it. The principle of separation of powers as always given the Executive Branch wide discretion in managing national affairs under its constitutional scheme of powers—especially in the President’s law enforcement and national security powers.
Those who have taken a course in Constitutional Law know of the famous case of Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952), a case coming out of the Korean War in which President Truman tried to seize a Pennsylvania steel mill that was about to be shut down because of striking workers. Justice Hugo Black gave a wonderfully formalist majority decision holding that the seizure was unconstitutional, but the opinion that ended up being the most crucial to understanding Presidential powers is Justice Jackson’s concurrence. (Here is an edited version of the decision which highlights the essential parts of each opinion.)
Justice Jackson came up with three “categories” of Presidential power, each of which should receive different levels of deference from the courts:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When 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….
Justice Jackson agreed that the seizure of the steel mills was in that third category—President Truman had asked for such powers before but Congress had specifically denied him the right to make such seizures.
Why does Youngstown Steel matter today? Because it gives us a very clear way of determining when a Presidential action is unconstitutional and when it is not. As Justice Jackson notes, if Congress authorizes the President to do something and the President does it, virtually the only way that could be unconstitutional is if the federal government itself doesn’t have power to take that action under the Constitution. (For instance, if Congress passed a law allowing for the quartering of troops and the President ordered the military to carry that law out, it would still violate the Constitution.).
In the case that Prof. Reynolds mentions above, the Court seems to take the argument that the Executive Order extending the export law is a Youngstown Category I circumstance:
Former section 5(b) of the TWEA delegated to the President broad and extensive powers; “it could not have been otherwise if the President were to have, within constitutional boundaries, the flexibility required to meet problems surrounding a national emergency with the success desired by Congress.” United States v. Yoshida International, Inc., 526 F.2d 560, 573 (Cust. & Pat.App.1975) (footnote omitted). Wary of impairing the flexibility necessary to such a broad delegation, courts have not normally reviewed “the essentially political questions surrounding the declaration or continuance of a national emergency” under former s 5(b). Id. at 579. The statute contained no standards by which to determine whether a national emergency existed or continued; in fact, Congress had delegated to the President the authority to define all of the terms in that subsection of the TWEA including “national emergency,” as long as the definitions were consistent with the purposes of the TWEA. 50 U.S.C. app. s 5(b)(3). In the absence of a compelling reason to address the difficult questions concerning the declaration and duration of a national emergency under former s 5(b), we decline to do so.
Moreover, the EAA apparently was allowed to lapse only because Congress could not resolve questions relating to the antiboycott provisions. See Arab Boycott Hearings on S. 69 and S. 92, Before the Subcommittee on International Finance of the Senate Committee on Banking, Housing and Urban Affairs, 95th Congress, 1st Sess. 1 (Senator Stevenson) (1977). The Spawrs have offered no evidence that Congress intended to dismantle the export controls.
In conclusion, even under the demanding scrutiny the Spawrs argue is appropriate because of the criminal nature of this case, it is unmistakable that Congress intended to permit the President to use the TWEA to employ the same regulatory tools during a national emergency as it had employed under the EAA. We, therefore, conclude that the President had the authority during the nine-month lapse in the EAA to maintain the export regulations.
U.S. v. Spawr Optical Research, 685 F.2d 1076, 1981 (9th Cir. 1982). Because Congress had intended for the President to have these powers, and the lapse of the statute didn’t necessarily change that intent, the President still had the power to enforce a similar policy. Now, the Ninth Circuit didn’t cite Youngstown here, but the basic principle still applies.
All this talk about “new” and “sweeping” executive powers ignores the long-standing legal and historical traditions of executive power under the Constitution. The Presidency is the only part of the US Government that is controlled by a single individual, and the Founders rightly believed that there were some tasks which required a single individual. While the Presidency is a strong office, that office does have constraints that distinguish it from that of the King of England. See The Federalist #69.
I suspect that most of the clamor about how terrible the Bush Presidency is and how much of the Constitution is being “swept under the rug” or “shredded” or whatever is just more political bluster. If in January 20, 2009 Hillary Clinton takes the oath of office and becomes President (perish the thought!), she isn’t going to suddenly change the balance of executive power in this country. (In fact, I’d argue she’d go much farther than Bush has.) All those people who argue that Bush is somehow violating the Constitution never seem to be able to explain what specific part of the Constitution is being violated, and even when they point to one, the supposed violation is rarely real.