From Power Line: Some Thoughts on Youngstown Steel
In the ongoing debate over the legality of the National Security Agency's surveillance programs--the parameters of which, it is important to remember, are still largely unknown to the public--those who argue that the NSA programs are, or may be, illegal, have often relied on Justice Robert Jackson's concurring opinion in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952), for the proposition that Congressional action may, in some fashion, qualify or limit the constitutional powers otherwise available to the President as Commander in Chief of the armed forces. (The Congressional action in this case, of course, would be the enactment of the Foreign Intelligence Surveillance Act (FISA) in 1978.) I want to make some specific observations on the relevance of Youngstown to the present debate, and then some broader comments on the relationship between the executive and legislative branches with respect to military affairs.Okay, this is an old article, but references to Youngstown Steel keeps coming up over and over and over by both the left and the right as to the limits of Presidential Power.
The language that has been quoted from Jackson's opinion is the following:
We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
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. 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.
Excuse me while I rant for a moment.
Somehow the Right sees the above statement as "evidence" that Congressional authorization for the War only supports the Presidential power to wage war--and thus gives him the power to authorize the NSA to wiretap international phone calls. The Left, on the other hand, has read statement (3) above as indicating that current opposition from members of Congress against the President's use of wiretaps indicates that the President's actual authorized power has somehow weakened, and though he may arguably have the right under the Constitution to gather intelligence, congressional opposition means that he really doesn't have the right. Or something like that.
Is it just me, or do I read the above three statements as a tautology, a statement of the obvious which doesn't add or detract from the legal arguments at hand?
Look, if I'm out for a run and the wind pushes me in the back, it's far easier to run than if there was no wind, and its far easier than when the wind blows at me in the face. Confusing the fact that I'm running against the wind, as opposed to running with the wind, with the right that I may or may not have to run--that's just damned silly. The wind can help, hamper, or not contribute at all to my running--it can make it easier or harder to run--but my right to run has not changed at all.
The same with Congressional support or opposition to a constutionally defined and protected power that the President has. The President of the United States is not like the Prime Minister of most countries. The Prime Minister is basically the head of Parliment, and subject to its rules and whims. The President of the United States is an entire self-contained branch of government, co-equal to Congress and granted by our Constitution with certain powers which can no more be stripped by Congress through enactment of a law than the President can strip Congress of power by passing a Presidential Executive Order.
But just like the wind that blows when one is running, Congress doesn't have to play nice with the President when the President engages in his constitutionally protected and constitutionally defined powers, such as the President's power to wage war.
The Congressional Wind has been blowing very hard in all directions when it comes to the War on Terror. Congress authorized the current War on Terror, but then washes it's hands on the President's actions. Congressional oversite signed off on NSA wiretaps, but Democrats want to make it sound like the President was acting like "King George"--while forgetting to remind people that, when it comes to the conduct of the war (and intelligence gathering in this war) our President is (constitutionally speaking) King--or rather, he's Commander In Chief. Nevermind Congress gave the President authorization (which is, basically speaking, both a blessing, a request and financial support).
But the Congress is, in this case, like the wind: blows very hard and very hot, and can help or hinder the President's run--but the President has the right to be running, regardless of what Congress does.
The Youngstown Steel case is a tautology describing the wind. It adds absolutely nothing to the legal debate, other than by stating the obvious: if Congress works against the President, it can make the President's job harder. But it doesn't make the President's job illegal.