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.