Cass Sunstein has a new post on the claims of a President's inherent power as Commander in Chief:
The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.
I have been very hard on Professor Sunstein and, personally, I appreciate him taking some time to discuss the issue in more detail. His earlier efforts were, in my view, simply not up to par. I discuss this effort below the fold.
I think this effort is also lacking in many respects. Professor Sunstein posits that:
In his concurring opinion in The Steel Seizure Case, Justice Jackson tried to refine the battle between (1) and (2) by drawing attention to Congress. He suggested that we might also adopt two other positions. (3) The President has such authority because Congress has said that he does, thus augmenting the President's own power with "all that Congress can delegate." (4) The President lacks such authority because Congress has said that he doesn't, ensuring that his own power "is at its lowest ebb."
. . . We have seen (4) in the argument that FISA bans the President from engaging in such surveillance without going through the FISA process. Naturally, the Department of Justice, attempting to protect the President's prerogatives, emphasizes "inherent" power and implies that Congress lacks the authority to intrude on it.
Sunstein argues that:
The analysis of the two positions probably has to be conducted issue-by-issue, and not in the abstract. My general point here is that most of the time, it is valuable to avoid disputes between (1) and (2), and to see if progress can be made by bracketing the most fundamental questions about "inherent" authority and by giving careful attention to what Congress has done.
(Emphasis supplied.) Certainly no one can quarrel with Professor Sunstein's admonition that a dispute between assertions of power by the President and the Congress should be avoided if possible. But he has, it seems to me, failed to "give careful attention to what Congress has done" when it enacted FISA. For if he had he would see that the conflict is unavoidable here. The President is defying a law duly enacted by Congress. And NO Supreme Court case has countenanced such a power grab by a President.
Youngstown expressly rejected such a claim (the opinion of the Court, the concurrences of Frankfurter and Jackson, all rejected such an argument, and even the dissent, which argued that Congress had authorized Truman's actions, implicitly rejected the claim). Hamdi also rejected such claim, citing Youngstown:
[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.
Only Silberman's dicta in Sealed Cases, writing for the FISA appeals court, countenances such an assertion. And Silberman contradicts himself by accepting restrictions on Presidential power as provided by FISA.
In short, there is no support in the case law for the assertion that the President has plenary power when acting as Commander in Chief. It is contrary to the Constitution, the Federalist Papers, particularly Federalist 69, and all Supreme Court jurisprudence. It is an outlandish and yes, preposterous assertion by the Bush Administration.
Professor Sunstein would do well to be straightforward on this. He comes closer today, but still seems unable to say it straight out.