In response to a question about executive war power and the detention of enemy combatants, Kagan said that the Obama administration (through the Office of the Solicitor General and the DOJ) has grounded its opinion of its power not under inherent Article II powers, but instead under the statutory powers granted by Congress under the Authorization for the Use of Military Force in Iraq and Afghanistan (AUMF). Fair enough.
She then went on to talk about the famous “Youngstown” test as articulated by Justice Jackson: a question of Presidential authoriy can fall into one of three situation. First, when Congress has specifically authorized the President to act; second, when Congress has been silent; and third, when Congress has specifically barred the activity in question. The first should be given the widest lattitude, the second somewhat less, and the last should be given the least latitude.
Conveniently, the argument is that the AUMF puts most of the post 9-11 executive actions into the first box; it should be given the widest latitutde because Congress has specfiicaly authorized it.
I have two severe reservations about this. First, the AUMF is incredibly vague. It’s actually a very short statute. Here is the full text:
- (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
- (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
If this is considered congressional authorization under the Youngstown test, then it is a flimsy test indeed. I can’t imagine Justice Jackson intended that such a short and broad authorization should be valid almost 10 years down the road under his test.But second, and more importantly, I take issue with the idea that the AUMF is still valid proof of congressional opinion for the purposes of judicial decisions under the Youngstown standard.
Of course the AUMF is still law; I’m not arguing that it doesn’t have the force of law. But it’s at least plausible that it’s only law because of the veto. Congress may very well have overturned (or at least amended) it at the beginning of the 110th Congress if there was any hope it would not be vetoed. So it’s hard to say that the President is acting with the statutory authorization of Congress, because he’s only really acting with the implied backing of 1/3 of Congress and his veto, which is the minimum needed to keep a law from being overturned. And for the purposes of the Youngstown test, that should matter. Why should the President have a say, for the purposes of the judicial test, what Congress’s opinion is? He shouldn’t.
This raises one of my pet peeves about executive power. There’s a massive ratcheting-up effect. Congress can give the President power by majority vote, but can only recall it (because of the veto) by 2/3 vote. One longstanding principle of legislative government is that the legislature should not be able to bind a future legislature. But that’s exactly what happens with Presidential power — Congress A gives the President a power, and then years down the road, it can not be taken back, because the threshold rises from majority to super-majority.
The only (practical) solution to this is to sunset all grants of power to the President. Make them expire at the end of each Congerss. Then, at the beginning of the next Congress, you could have a vote on the “Presidential power package” on the first day. Most of the time, it would be routine; we want the President to have most of the powers Congress gives him. But by sunsetting it each Congress and then voting it back on the first day, Congress would maintain the bare-majority ability to eliminate a previously-granted power, simply by removing it from the power package. It would place Congress squarely in control of statutory Presidential power, instead of handing it over to the President with little hope of ever having the 2/3 majority to take it back by force.
This would not end the modern trend toward executive authority. But it would go a long way to making Congress a stronger player in the determination of Presidential authority, and it would require the President to rely on his inherent Article II authority in many cases before the Court, which might actually shed some light on what the actual powers of the President are under the Constitution, as opposed to the grey area of interpreting what Congress gave the President via the AUMF.
I think your idea is a good one!
Isn’t the problem, though, really with that zone of twilight (the second situation)? If AUMF was sunsetted, the administration would simply ground its war powers, treatment of enemy combatants, etc., on the president’s interpretation of the “imperatives of events and contemporary imponderables,” (Justice Jackson’s words) — here, the definition of this “war.” In the absence of positive congressional action to restrict the president’s power, the president is free to interpret the exigencies of the moment in ways that expand his purview. In other words, while sunsetting is a good idea, wouldn’t we anticipate that most of the more controversial claims of presidential power will just shift from category one to category two? Positive congressional action would still be required to hem in the presidency. No?
Well, I would say three things:
(1) Sunsetting is an inherently good idea, because it maintains congressional power at the bare-majority level, whereas not sunsetting virtually cedes the power to the President in perpetuity. And it’s just as important for non-constitutional issues. Imagine if TARP wasn’t sunset to end after two years. It would basically be a $700 billion slush fund for the administration to use until expired. Given that the administration has used TARP so far for everything under the sun except what Congress explicitly thought it would be used for, count me as one who’s happy that it is sunset. Congress can always reauthorize it this fall or in the 112th, but at least a bare majority can effectively end it by not reauthorizing it.
(2) I agree with you that the administration argument will shift from a statutory-based claim to an inherent Article II claim, but to me that’s the whole point. Maybe the ship has sailed and the Supreme Court is going to refuse to intervene in any way that restricts what the President can do, but I want to see the relevant actors act: I want to see Obama go the Court and say “I inherently have the Article II power to do anything related to national security, in the absence of specific congressional prohibition.” And then I want to see Kennedy and Kagan sign off on it. Because right now everyone is getting off cheap, because the AUMF seemingly gives congressional consent. So they can argue it’s not the President being a runaway executive, it’s just the President being an agent of Congress. If the above came to fruition, all the cards would be on the table for the American public to see. The President would be forced to claim in open court that he has virtually unlimited powers that are derived not from the authorization of Congress, but from the Constitution. It would not be a complicated argument. Right now it is — things like the AUMF and the intel acts all muddy up the waters.
(3) And yes, there are plenty of powers that we want Congress to give to the President. I’m not arguing for Congress to take away his power. I’m arguing for Congress to never again give him a power that doesn’t expire. I suspect that if everything was sunset, the vast, vast majority of Congresses would reauthorize the entire package of powers on the first day of Congress. But at least they would have the option of modifying them or removing certain pieces by majority vote. Maybe if the AUMF had been sunset, we would have kept it exactly as is. But I doubt it — I can’t see the 110th Congress in 2007 not at least putting some limitation into it. And a debate on the first day of each Congress over the power package would be a welcome public forum. At the very least it would remind the public who is (allegedly) ultimately in charge — the legislature.
I had predicted prior to the 2008 election that any Democrat who thought the Presidency could be controlled just by getting the right man into the office — a benevolent dictator — was deluding themselves. If anything, I’m even more pessimistic now that I’ve seen Obama in action. His executive order banning torture goes right to the heart of the matter — he seems to believe that he could torture people, but he has chosen not to. Great. Thanks, boss. As I’ve said for years, the problem wasn’t Bush. The problem is the Presidency. And if men like Obama are going to nominate people like Kagan to the Court, it will pretty much be the liberal ratification of the neo-conservative understanding of Presidential authority. Game. Set. Match.
matt
Yeah, I’m just not sure that getting those “inherent authority” claims out into the open, as you say in #2, would precipitate the kind of backlash, or check, from the Court or Congress that you (and I) hope it would. Those kinds of claims can easily shift from the vesting clause, to the oath, to the commander-in-chief clause, to head of executive branch claims, etc. The scenario you describe already happened with Bush, and the public seemed pretty ok with his claims, especially when they were described as “necessary” to defeat the enemy. A little fear mongering goes a long way for claims of flexible executive power.
On Kagan — do you think the evidence is clear and convincing that she’s firmly pro-executive power, a la Alito? Her Harvard Law Review article — “presidential administration” — seems to me to be more positivist — more like an elaboration of Moe’s theories — than advocating for expanded powers. I’m sure there other documents I haven’t seen, but I read “presidential administration,” and it seems quite tame to me.
I don’t have hard evidence that Kagan is strongly pro-executive power, but I think the indirect evidence is pretty good: she’s the solicitor general for the Obama administration, and I have yet to find more than a window-dressing difference between Bush and Obama in regard to executive power.
That, of course, does not mean Kagan holds the same views as Obama. But it’s also hard to believe that she holds radically different views. Could you really go into court and defend things like indefinite detention if you had a strong personal/moral aversion to them? Maybe, but that doesn’t bode particularly well for ones character. It’s one thing to argue on behalf of a client over anti-trust matters or statutory interpretation of patent law. It’s wholly another to do so in regard to fundamental civil liberties. There are plenty of people who would either not have taken the job, or would have quit, before they agreed to argue the Bush/Obama position on these things.
She could surprise us — it’s not beyond the realm of possibility in DC that someone would go 180 degrees against their conscience to have a powerful job — but whatever the possibility that she’s a strong proponent of executive power, I would think there’s less of a possibility that she’s not.
mg