No, that's not a misprint; I didn't mean to say Chief Justice John Roberts. After all, we know that Roberts was chosen for the Supreme Court in no small part because of his sympathetic views of an imperial presidency.
John Marshall (the longest-serving Chief Justice in U.S. history and the man who authored the Supreme Court decisions that shaped the country in its early years) was apparently not so sympathetic to the type of executive power that President Bush so blithely claims the Constitution provides.
In
Little v. Barreme, more commonly known as the
Flying Fish Case, Marshall and the rest of the Supreme Court confronted a conflict between executive and congressional power not unlike the ones that exist today when it comes to the Foreign Intelligence Surveillance Act (FISA) and warrantless wiretapping.
At issue in the Flying Fish Case was a statute suspending trade between the United States and France during the brief war between the two countries. The statute, by its plain terms, also authorized the seizure of ships bound to French ports. The Secretary of the Navy, with oversight from President Adams, apparently realizing that only seizing ships bound to French ports (rather than those originating from French ports) would hamper the war effort, issued a sort of signing statement of his own. When the act permitting seizure of certain ships on the high seas was transmitted to the captains of the armed vessels that would be performing the maritime interdictions, the executive branch's instructions provided:
A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and an impartial judgment. You are not only to do all that in you lies, to prevent all intercourse, whether direct or circulitous, between the ports of the United States and those of France or her dependencies, where the vessels are apparently as well as really American, and protected by American papers only, but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports, do not escape you.
In other words, the executive branch purported to authorize the seizure of any ship engaged in intercourse with France, contrary to the plain language of the statute. Presented with the question of whether the executive directive would excuse a Naval officer from damages, Chief Justice Marshall answered in the negative:
the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass. ... Captain Little then must be answerable in damages to the owner of this neutral vessel, and as the account taken by order of the circuit court is not objectionable on its face, and has not been excepted to by counsel before the proper tribunal, this court can receive no objection to it.
It does not take any great leap of logic to apply the rationale of the Flying Fish case to Bush's warrantless wiretapping program. In the case of warrantless wiretapping, there is a statute that clearly prohibits the warrantless wiretapping. Contrary to the statute, the executive branch has purported to authorize certain activity in the furtherance of supposed U.S. wartime objectives. The President has claimed this authority as part of his allegedly "inherent" powers as Commander-in-Chief under Article II of the Constitution.
The C-i-C angle was explicitly addressed, and rejected, by Chief Justice Marshall in the Flying Fish Case. One would imagine that the inherent authority argument would be much stronger in that case, given that the orders directly concerned the United States Navy during a time of war, rather than the NSA, which is not a part of the armed services as conventionally understood.
What is the point of all this? After all, we already know that Bush violated FISA and most, if not all, legal scholars agree that there is no legitimate basis for Bush's cclaims of executive authority. Well, the Flying Fish case undercuts the administration's claims of any "good faith" basis for implementing the program. Under Chief Justice Marshall's logic, it is plain as day that an executive directive cannot override a congressional statute, even in a time of war, and even where the directive is aimed at a branch of the armed forces that is directly involved in that war. As a professed adherent of "original intent," Bush would be hard-pressed to find a better authority on which to rely than John Marshall, the acknowledged gold standard for Founding-era jurisprudence. The Flying Fish Case demolishes any credibility that Bush and his cronies could cling to regarding their supposed good faith in implementing their domestic spying program. Quite simply, it is illegal, and that fact has been clear for more than 200 years.