-
1
-
-
44949239215
-
-
See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 27-28 (1995).
-
See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 27-28 (1995).
-
-
-
-
2
-
-
0030337441
-
The Executive Power of Constitutional Interpretation, 81
-
See
-
See Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1283-84 (1996).
-
(1996)
IOWA L. REV
, vol.1267
, pp. 1283-1284
-
-
Lawson, G.1
Moore, C.D.2
-
3
-
-
7444272465
-
-
Compare Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545, 551 (2004),
-
Compare Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545, 551 (2004),
-
-
-
-
4
-
-
22544451836
-
Foreign Affairs and the Jeffersonian Executive: A Defense, 89
-
with
-
with Saikrishna B. Prakash & Michael D. Ramsey, Foreign Affairs and the Jeffersonian Executive: A Defense, 89 MINN. L. REV. 1591, 1595 (2005).
-
(2005)
MINN. L. REV
, vol.1591
, pp. 1595
-
-
Prakash, S.B.1
Ramsey, M.D.2
-
5
-
-
33645752468
-
Statutes, of course, can also be an important source of presidential power. See Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106
-
My focus in this Essay, however, is on presidential powers that come directly from the Constitution itself
-
Statutes, of course, can also be an important source of presidential power. See Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 264 (2006). My focus in this Essay, however, is on presidential powers that come directly from the Constitution itself.
-
(2006)
COLUM. L. REV
, vol.263
, pp. 264
-
-
-
7
-
-
44949115732
-
-
Id. art. II, § 1, cl. 1. This shall henceforth be referred to as the Vesting Clause.
-
Id. art. II, § 1, cl. 1. This shall henceforth be referred to as the "Vesting Clause."
-
-
-
-
8
-
-
44949237693
-
-
A similar argument applies to the Vesting Clause at the beginning of Article III, which states that [t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. U.S. CONST. art. III, § 1, cl. 1.
-
A similar argument applies to the Vesting Clause at the beginning of Article III, which states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. CONST. art. III, § 1, cl. 1.
-
-
-
-
9
-
-
44949127779
-
-
See supra note 3; see also infra text accompanying notes 59-66.
-
See supra note 3; see also infra text accompanying notes 59-66.
-
-
-
-
11
-
-
44949242154
-
-
Whether it is weak or strong as a matter of contemporary doctrine, which is at least five degrees of separation removed from any plausible account of original meaning, is another question for another time and another scholar
-
Whether it is weak or strong as a matter of contemporary doctrine, which is at least five degrees of separation removed from any plausible account of original meaning, is another question for another time and another scholar.
-
-
-
-
12
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-
33846176561
-
-
Many people dispute that the current struggle against radical Islamists can properly be characterized as a war. See, e.g, Bruce Ackerman, Terrorism and the Constitutional Order, 75 FORDHAM L. REV. 475, 477-81 2006, To the best of my knowledge, that class of disputants does not include anyone who is a radical Islamist engaged in the struggle. While we cannot ask the 9/11 bombers whether they regarded their mission as an act of war, the conduct of individuals and organizations allied with them both before and after 9/11 gives every indication of the kind of coordinated and sustained assault on the United States to which the label war can appropriately be given
-
Many people dispute that the current struggle against radical Islamists can properly be characterized as a war. See, e.g., Bruce Ackerman, Terrorism and the Constitutional Order, 75 FORDHAM L. REV. 475, 477-81 (2006). To the best of my knowledge, that class of disputants does not include anyone who is a radical Islamist engaged in the struggle. While we cannot ask the 9/11 bombers whether they regarded their mission as an act of war, the conduct of individuals and organizations allied with them both before and after 9/11 gives every indication of the kind of coordinated and sustained assault on the United States to which the label "war" can appropriately be given.
-
-
-
-
13
-
-
44949109801
-
-
If the shoe-bomber fits . . . . See JOHN YOO, WAR BY OTHER MEANS 1-8 (2006). Nor is it relevant for domestic constitutional purposes that Congress has not formally declared war. See U.S. CONST. art. I, § 8, cl. 11 (giving Congress power [t]o declare War). A declaration, as the word suggests, recognizes a state of affairs that exists independently of the declaration.
-
If the shoe-bomber fits . . . . See JOHN YOO, WAR BY OTHER MEANS 1-8 (2006). Nor is it relevant for domestic constitutional purposes that Congress has not formally declared war. See U.S. CONST. art. I, § 8, cl. 11 (giving Congress power "[t]o declare War"). A declaration, as the word suggests, recognizes a state of affairs that exists independently of the declaration.
-
-
-
-
14
-
-
0345847935
-
-
See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 207-08 (1996). If a terrorist nation rained nuclear destruction on twenty American cities, a state of war would exist even if Congress had not gotten around to declaring it. Similarly, if a terrorist organization rained conventional destruction on two American cities (and, thanks to some heroic ordinary Americans, one empty field), a state of war would exist whether or not members of Congress, or of elite academic institutions, chose to recognize it.
-
See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 207-08 (1996). If a terrorist nation rained nuclear destruction on twenty American cities, a state of war would exist even if Congress had not gotten around to declaring it. Similarly, if a terrorist organization rained conventional destruction on two American cities (and, thanks to some heroic ordinary Americans, one empty field), a state of war would exist whether or not members of Congress, or of elite academic institutions, chose to recognize it.
-
-
-
-
15
-
-
44949241156
-
-
At least, that is the aspect of the monitoring program for which there has been public acknowledgment. See President George W. Bush, President's Radio Address on Homeland Security (Dec. 17, 2005, available at acknowledging that he authorized the National Security Agency, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations, It is possible that actual NSA monitoring extends beyond the acknowledged limits. I doubt whether the international character of a communication matters very much to the ultimate legality of this activity, but in any event this Essay addresses only considerations that bear on the legality of warrantless electronic surveillance of transmissions into or out of the United States where at least one party to the communication is reasonably suspected to be an enemy of the United States
-
At least, that is the aspect of the monitoring program for which there has been public acknowledgment. See President George W. Bush, President's Radio Address on Homeland Security (Dec. 17, 2005), available at http://www.whitehouse.gov/news /releases/2005/12/20051217.html (acknowledging that he "authorized the National Security Agency . . . to intercept the international communications of people with known links to al Qaeda and related terrorist organizations"). It is possible that actual NSA monitoring extends beyond the acknowledged limits. I doubt whether the international character of a communication matters very much to the ultimate legality of this activity, but in any event this Essay addresses only considerations that bear on the legality of warrantless electronic surveillance of transmissions into or out of the United States where at least one party to the communication is reasonably suspected to be an enemy of the United States.
-
-
-
-
16
-
-
44949102929
-
-
Pub. L. No. 95-511, 92 Stat. 1783 (1978, codified as amended at 50 U.S.C. §§ 1801-1871 2000 & Supp. IV 2004
-
Pub. L. No. 95-511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801-1871 (2000 & Supp. IV 2004)).
-
-
-
-
17
-
-
44949163564
-
-
50 U.S.C. §§ 1803-1805 (2000 & Supp. IV 2004). There are exceptions to this requirement, but no one claims that those exceptions cover all, or even most, of the activities under the NSA surveillance program. See id. §§ 1802(a)(1), 1804(f); see also Press Briefing by Alberto Gonzales, Attorney General, and General Michael Hayden, Principal Deputy Director of National Intelligence (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html (We understand that [the NSA surveillance program] is a more - I'll use the word 'aggressive' program than would traditionally be available under FISA. (quoting General Hayden));
-
50 U.S.C. §§ 1803-1805 (2000 & Supp. IV 2004). There are exceptions to this requirement, but no one claims that those exceptions cover all, or even most, of the activities under the NSA surveillance program. See id. §§ 1802(a)(1), 1804(f); see also Press Briefing by Alberto Gonzales, Attorney General, and General Michael Hayden, Principal Deputy Director of National Intelligence (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html ("We understand that [the NSA surveillance program] is a more - I'll use the word 'aggressive' program than would traditionally be available under FISA." (quoting General Hayden));
-
-
-
-
18
-
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44349131845
-
The Terrorist Surveillance Program and the Constitution, 14
-
John Yoo, The Terrorist Surveillance Program and the Constitution, 14 GEO. MASON L. REV. 565, 565 (2007).
-
(2007)
GEO. MASON L. REV
, vol.565
, pp. 565
-
-
Yoo, J.1
-
19
-
-
44949144656
-
-
For an overview of FISA, see Memorandum, Elizabeth B. Bazan & Jennifer K. Elsea, Presidential Auth. to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, Cong. Research Serv. 17-27 (Jan. 5, 2006) [hereinafter CRS Memo].
-
For an overview of FISA, see Memorandum, Elizabeth B. Bazan & Jennifer K. Elsea, Presidential Auth. to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, Cong. Research Serv. 17-27 (Jan. 5, 2006) [hereinafter CRS Memo].
-
-
-
-
20
-
-
50949129633
-
See
-
§ 1809 2000
-
See 50 U.S.C. § 1809 (2000).
-
50 U.S.C
-
-
-
21
-
-
44949140243
-
-
This is a relatively broad (though far from unprecedented) view of the range of impeachable offenses, see Lawson & Moore, supra note 2, at 1307-09, but even if I am wrong that failure to pursue lawful measures to monitor terrorists is impeachable, it would certainly be grossly irresponsible
-
This is a relatively broad (though far from unprecedented) view of the range of impeachable offenses, see Lawson & Moore, supra note 2, at 1307-09, but even if I am wrong that failure to pursue lawful measures to monitor terrorists is impeachable, it would certainly be grossly irresponsible.
-
-
-
-
22
-
-
84860937485
-
-
§ 1809a
-
50 U.S.C. § 1809(a).
-
50 U.S.C
-
-
-
23
-
-
44949111084
-
-
Authorization for Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat. 224, 224 (2001) [hereinafter AUMF].
-
Authorization for Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat. 224, 224 (2001) [hereinafter AUMF].
-
-
-
-
24
-
-
44949252736
-
-
Some very smart people so believe. See YOO, supra note 11, at 115-18; U.S. Dep't of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 23-28 (Jan. 19, 2006) [hereinafter DOJ Memo].
-
Some very smart people so believe. See YOO, supra note 11, at 115-18; U.S. Dep't of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 23-28 (Jan. 19, 2006) [hereinafter DOJ Memo].
-
-
-
-
25
-
-
44949127778
-
-
Yoo, supra note 14, at 587 n.159.
-
Yoo, supra note 14, at 587 n.159.
-
-
-
-
26
-
-
44949225735
-
-
Cf. Curtis Bradley et al., On NSA Spying: A Letter to Congress, 53 N.Y. REV. OF BOOKS, Feb. 9, 2006, at 42, 43, available at http://www.nybooks.com/articles/18650.
-
Cf. Curtis Bradley et al., On NSA Spying: A Letter to Congress, 53 N.Y. REV. OF BOOKS, Feb. 9, 2006, at 42, 43, available at http://www.nybooks.com/articles/18650.
-
-
-
-
27
-
-
44949130412
-
-
WILLIAM SHAKESPEARE, AS YOU LIKE IT act 2, sc. 7, 1. 139.
-
WILLIAM SHAKESPEARE, AS YOU LIKE IT act 2, sc. 7, 1. 139.
-
-
-
-
28
-
-
44949158525
-
-
AUMF, Pub. L. No. 107-40 § 2(a), 115 Stat. 224, 224 (2001).
-
AUMF, Pub. L. No. 107-40 § 2(a), 115 Stat. 224, 224 (2001).
-
-
-
-
29
-
-
44949262637
-
-
U.S. CONST. art. II, §§ 2-3.
-
U.S. CONST. art. II, §§ 2-3.
-
-
-
-
30
-
-
44949106975
-
-
Id. art. II, §2, cl.1.
-
Id. art. II, §2, cl.1.
-
-
-
-
31
-
-
35348833621
-
-
Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered, 106 MICH. L. REV. 61, 83 (2007). But see Yoo, supra note 14, at 569.
-
Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered, 106 MICH. L. REV. 61, 83 (2007). But see Yoo, supra note 14, at 569.
-
-
-
-
32
-
-
39449133710
-
The Commander in Chief at the Lowet Ebb - Framing the Problem, Doctrine, and Original Understanding, 121
-
See
-
See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowet Ebb - Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 792-93 (2008).
-
(2008)
HARV. L. REV
, vol.689
, pp. 792-793
-
-
Barron, D.J.1
Lederman, M.S.2
-
33
-
-
32944481363
-
-
See Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. ILL. L. REV. 1, 29-30 [hereafter Lawson & Seidman, Treaty Clause].
-
See Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. ILL. L. REV. 1, 29-30 [hereafter Lawson & Seidman, Treaty Clause].
-
-
-
-
34
-
-
44949146856
-
-
Youngstown Sheet & Tube Co. v, U.S. 579
-
Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 587 (1952).
-
(1952)
Sawyer (Steel Seizure)
, vol.343
, pp. 587
-
-
-
35
-
-
44949090196
-
-
The standard tendency in the legal academy is to treat Supreme Court decisions as privileged pronouncements on constitutional meaning. It is a very, very bad tendency. There is nothing in the Constitution on which to ground any such idea, nor does the Supreme Court's actual track record as a constitutional interpreter inspire much confidence. As a matter of realpolitick, Supreme Court opinions matter, just as decisions of presidents, congresspersons, and state and local officials matter. Ignore them and you risk getting shot by federal marshals. But as a matter of objective constitutional meaning, there is no good reason to think that Supreme Court opinions are better evidence of that meaning than are the pronouncements of the Department of Justice, the Congressional Research Service, or Gary Lawson, and there are good reasons to think them worse
-
The standard tendency in the legal academy is to treat Supreme Court decisions as privileged pronouncements on constitutional meaning. It is a very, very bad tendency. There is nothing in the Constitution on which to ground any such idea, nor does the Supreme Court's actual track record as a constitutional interpreter inspire much confidence. As a matter of realpolitick, Supreme Court opinions matter, just as decisions of presidents, congresspersons, and state and local officials matter. Ignore them and you risk getting shot by federal marshals. But as a matter of objective constitutional meaning, there is no good reason to think that Supreme Court opinions are better evidence of that meaning than are the pronouncements of the Department of Justice, the Congressional Research Service, or Gary Lawson - and there are good reasons to think them worse.
-
-
-
-
36
-
-
33745686547
-
-
Justice Jackson's famous concurrence, which has acquired near-canonical status in some circles, see Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2314-15 (2006), was a particularly unhelpful bit of twaddle, but that is a topic for another day.
-
Justice Jackson's famous concurrence, which has acquired near-canonical status in some circles, see Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2314-15 (2006), was a particularly unhelpful bit of twaddle, but that is a topic for another day.
-
-
-
-
37
-
-
44949157010
-
-
Cf Letter from Laurence H. Tribe, Professor, Harvard Univ., to Honorable John Conyers, Jr., U.S. Congressman 3 (Jan. 6, 2006) (arguing that if the President cannot constitutionally seize certain critical publicly held [steel] corporations . . . in order to avert the threat that would be posed to our national security . . . . then certainly an unchecked presidential program of secretly recording the conversations of . . . private citizens in the United States is likewise unconstitutional under Youngstown).
-
Cf Letter from Laurence H. Tribe, Professor, Harvard Univ., to Honorable John Conyers, Jr., U.S. Congressman 3 (Jan. 6, 2006) (arguing that if the President cannot constitutionally seize "certain critical publicly held [steel] corporations . . . in order to avert the threat that would be posed to our national security . . . . then certainly an unchecked presidential program of secretly recording the conversations of . . . private citizens in the United States" is likewise unconstitutional under Youngstown).
-
-
-
-
38
-
-
44949200832
-
-
See United States v. Jones, 109 U.S. 513, 518 (1883); Boom Co. v. Patterson, 98 U.S. 403, 406 (1878).
-
See United States v. Jones, 109 U.S. 513, 518 (1883); Boom Co. v. Patterson, 98 U.S. 403, 406 (1878).
-
-
-
-
39
-
-
0041866752
-
-
See Letter from James Buchanan, Secretary of State, to William V. Vorhies (Oct. 7, 1848), reprinted in S. DOC. NO. 31-18, at 7-8 (1850). The Supreme Court upheld the legality of peacetime military governments in Cross v. Harrison, 57 U.S. (16 How.) 164, 189-90 (1853). For a critical assessment of that episode, and of the claims of inherent governmental authority that it spawned, see generally Gary Lawson & Guy Seidman, The Hobbesian Constitution: Governing Without Authority, 95 NW. U. L. REV. 581 (2001).
-
See Letter from James Buchanan, Secretary of State, to William V. Vorhies (Oct. 7, 1848), reprinted in S. DOC. NO. 31-18, at 7-8 (1850). The Supreme Court upheld the legality of peacetime military governments in Cross v. Harrison, 57 U.S. (16 How.) 164, 189-90 (1853). For a critical assessment of that episode, and of the claims of inherent governmental authority that it spawned, see generally Gary Lawson & Guy Seidman, The Hobbesian Constitution: Governing Without Authority, 95 NW. U. L. REV. 581 (2001).
-
-
-
-
40
-
-
44949090199
-
-
See GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE 22-23 (2004).
-
See GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE 22-23 (2004).
-
-
-
-
41
-
-
44949182485
-
-
U.S. CONST. amend. X (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.).
-
U.S. CONST. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
-
-
-
-
42
-
-
44949152260
-
-
See LAWSON & SEIDMAN, supra note 35, at 22-23
-
See LAWSON & SEIDMAN, supra note 35, at 22-23.
-
-
-
-
43
-
-
44949244644
-
-
Mario Mendoza was a slick-fielding shortstop who played nine seasons in the Major Leagues from 1974-82. He was such a miserable hitter (lifetime batting average: .215) that it was always questionable whether he would break .200 in any given year - which he failed to do on five occasions. For the past three decades, .200 has widely been known in baseball circles as the Mendoza Line, though I gather there is some controversy over the term's precise origin and referent. See Mendoza Line - Wikipedia, http://en.wikipedia. org/wiki/Mendoza_Line (last visited Feb. 24, 2008). And yes, his fielding really was good enough to keep him in the majors for nine seasons, including two seasons as the starting shortstop for my beloved Seattle Mariners. See id.
-
Mario Mendoza was a slick-fielding shortstop who played nine seasons in the Major Leagues from 1974-82. He was such a miserable hitter (lifetime batting average: .215) that it was always questionable whether he would break .200 in any given year - which he failed to do on five occasions. For the past three decades, .200 has widely been known in baseball circles as the "Mendoza Line," though I gather there is some controversy over the term's precise origin and referent. See Mendoza Line - Wikipedia, http://en.wikipedia. org/wiki/Mendoza_Line (last visited Feb. 24, 2008). And yes, his fielding really was good enough to keep him in the majors for nine seasons, including two seasons as the starting shortstop for my beloved Seattle Mariners. See id.
-
-
-
-
45
-
-
44949171283
-
-
Whether that authority can be exercised in the face of a contrary congressional statute is discussed infra Part III
-
Whether that authority can be exercised in the face of a contrary congressional statute is discussed infra Part III.
-
-
-
-
46
-
-
44949096127
-
-
See, e.g., Bradley & Flaherty, supra note 3, at 554 & n.29; Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 47-48 (1994).
-
See, e.g., Bradley & Flaherty, supra note 3, at 554 & n.29; Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 47-48 (1994).
-
-
-
-
47
-
-
84888467546
-
-
text accompanying notes 59-66
-
See infra text accompanying notes 59-66.
-
See infra
-
-
-
48
-
-
84888467546
-
-
text accompanying notes 44-58
-
See infra text accompanying notes 44-58.
-
See infra
-
-
-
49
-
-
44949204205
-
-
DOJ Memo, supra note 19
-
DOJ Memo, supra note 19.
-
-
-
-
50
-
-
44949203268
-
-
Id. at 3
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Id. at 3.
-
-
-
-
51
-
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44949158524
-
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Id. at 6
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Id. at 6.
-
-
-
-
52
-
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84888494968
-
-
text accompanying notes 39-40
-
See supra text accompanying notes 39-40.
-
See supra
-
-
-
53
-
-
44949235813
-
-
See DOJ Memo, supra note 19, at 6-10
-
See DOJ Memo, supra note 19, at 6-10.
-
-
-
-
54
-
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44949089226
-
-
See id. at 6-10, 29-31.
-
See id. at 6-10, 29-31.
-
-
-
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55
-
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44949132770
-
-
See id. at 31
-
See id. at 31.
-
-
-
-
56
-
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0347018457
-
-
See id. at 30. For a detailed defense of the claim that the Article II Vesting Clause supports at least some (though not necessarily all) of the foreign-affairs powers traditionally claimed by presidents, see Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 257 (2001). For a sustained rebuttal, which I believe largely talks past the main line of the Prakash/Ramsey thesis, see Bradley & Flaherty, supra note 3, at 687.
-
See id. at 30. For a detailed defense of the claim that the Article II Vesting Clause supports at least some (though not necessarily all) of the foreign-affairs powers traditionally claimed by presidents, see Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 257 (2001). For a sustained rebuttal, which I believe largely talks past the main line of the Prakash/Ramsey thesis, see Bradley & Flaherty, supra note 3, at 687.
-
-
-
-
57
-
-
44949195529
-
-
Why does the Memo not proudly proclaim the Vesting Clause thesis but instead smuggle it in under cover of claims of inherent presidential power? The answer is surely that, although the Article II Vesting Clause thesis is crucial for getting the right answer to questions about the legality of the NSA program, the DOJ Memo is not really trying to get the right answer to those questions. The Memo spends far more energy explaining how the NSA wiretapping program is consistent with Supreme Court decisions than it does explaining how the program is consistent with the Constitution, see DOJ Memo, supra note 19, at 34, and the corpus of Supreme Court decisions is not favorable to the Vesting Clause thesis. Indeed, Supreme Court opinions are far more favorably inclined to the idea of unenumerated executive powers (i.e, inherent powers in the bad sense) than to the Article II Vesting Clause thesis, which tells you everything that you need to know about Sup
-
Why does the Memo not proudly proclaim the Vesting Clause thesis but instead smuggle it in under cover of claims of "inherent" presidential power? The answer is surely that, although the Article II Vesting Clause thesis is crucial for getting the right answer to questions about the legality of the NSA program, the DOJ Memo is not really trying to get the right answer to those questions. The Memo spends far more energy explaining how the NSA wiretapping program is consistent with Supreme Court decisions than it does explaining how the program is consistent with the Constitution, see DOJ Memo, supra note 19, at 34, and the corpus of Supreme Court decisions is not favorable to the Vesting Clause thesis. Indeed, Supreme Court opinions are far more favorably inclined to the idea of unenumerated executive powers (i.e., "inherent powers" in the bad sense) than to the Article II Vesting Clause thesis - which tells you everything that you need to know about Supreme Court opinions. See, e.g., Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003). Accordingly, if one is trying to map legal arguments onto the United States Reports rather than onto the Constitution itself, the Vesting Clause thesis will make at most a token appearance. (Similarly, if one is trying to map legal arguments onto the Constitution itself, the United States Reports will make at most a token appearance.) Whether the Department of Justice ought to be trying to outguess the Supreme Court rather than to get the right answer is an interesting question for another day.
-
-
-
-
58
-
-
44949243707
-
-
See DOJ Memo, supra note 19, at 44
-
See DOJ Memo, supra note 19, at 44.
-
-
-
-
59
-
-
44949131384
-
-
See CRS Memo, supra note 14, at 27-33
-
See CRS Memo, supra note 14, at 27-33.
-
-
-
-
60
-
-
44949165246
-
-
See id. at 4 n.11.
-
See id. at 4 n.11.
-
-
-
-
61
-
-
44949164233
-
-
Id
-
Id.
-
-
-
-
62
-
-
44949158523
-
-
The Memo states that [t]he Constitution specifically gives to Congress the power to 'provide for the common Defence.' Id. The Constitution does no such thing. The internally-quoted language, drawn from the Taxing Clause, U.S. CONST. art. I, § 8, cl. 1, identifies one of the permissible purposes for which taxes may be levied, but it is not an independent grant of power to Congress.
-
The Memo states that "[t]he Constitution specifically gives to Congress the power to 'provide for the common Defence.'" Id. The Constitution does no such thing. The internally-quoted language, drawn from the Taxing Clause, U.S. CONST. art. I, § 8, cl. 1, identifies one of the permissible purposes for which taxes may be levied, but it is not an independent grant of power to Congress.
-
-
-
-
63
-
-
44949225734
-
-
See CRS Memo, supra note 14, at 4 n. 11 (The President is responsible for 'tak[ing] Care that the Laws [are] faithfully executed,' U.S. CONST., art. II, § 3, and serves as the Commander in Chief of the Army and Navy, id. § 2, cl. 1.).
-
See CRS Memo, supra note 14, at 4 n. 11 ("The President is responsible for 'tak[ing] Care that the Laws [are] faithfully executed,' U.S. CONST., art. II, § 3, and serves as the Commander in Chief of the Army and Navy, id. § 2, cl. 1.").
-
-
-
-
64
-
-
0041513831
-
The Structural Constitution: Unitary Executive, Plural Judiciary, 105
-
Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1215 (1992).
-
(1992)
HARV. L. REV
, vol.1153
, pp. 1215
-
-
Calabresi, S.G.1
Rhodes, K.H.2
-
65
-
-
44949144654
-
-
A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 NW. U. L. REV. 1346, 1373 (1994) [hereinafter Froomkin, Vestments].
-
A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 NW. U. L. REV. 1346, 1373 (1994) [hereinafter Froomkin, Vestments].
-
-
-
-
66
-
-
0042461214
-
The Vesting Clauses as Power Grants, 88
-
See
-
See Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 NW. U. L. REV. 1377, 1389-90 (1994).
-
(1994)
NW. U. L. REV
, vol.1377
, pp. 1389-1390
-
-
Calabresi, S.G.1
-
67
-
-
44949165247
-
-
See Lessig & Sunstein, supra note 41, at 118
-
See Lessig & Sunstein, supra note 41, at 118.
-
-
-
-
68
-
-
33846631287
-
The President's Power to Execute the Laws, 104
-
Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 663 (1994).
-
(1994)
YALE L.J
, vol.541
, pp. 663
-
-
Calabresi, S.G.1
Prakash, S.B.2
-
69
-
-
44949229886
-
-
See Prakash & Ramsey, supra note 51, at 252-56
-
See Prakash & Ramsey, supra note 51, at 252-56.
-
-
-
-
70
-
-
44949092078
-
-
See Bradley & Flaherty, supra note 3, at 687-88
-
See Bradley & Flaherty, supra note 3, at 687-88.
-
-
-
-
72
-
-
44949116738
-
-
See id. at 34
-
See id. at 34.
-
-
-
-
73
-
-
44949117275
-
-
For an explication and defense of this methodology, see generally Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47 (2006).
-
For an explication and defense of this methodology, see generally Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47 (2006).
-
-
-
-
74
-
-
44949235302
-
-
LAWSON & SEIDMAN, supra note 35, at 12
-
LAWSON & SEIDMAN, supra note 35, at 12.
-
-
-
-
75
-
-
44949122273
-
-
Id
-
Id.
-
-
-
-
76
-
-
44949137991
-
-
Lawson & Moore, supra note 2, at 1281
-
Lawson & Moore, supra note 2, at 1281.
-
-
-
-
77
-
-
44949109798
-
-
See Calabresi, supra note 61, at 1380-81; Lawson & Moore, supra note 2, at 1281.
-
See Calabresi, supra note 61, at 1380-81; Lawson & Moore, supra note 2, at 1281.
-
-
-
-
78
-
-
44949091120
-
-
See Robert G. Natelson, The Legal Meaning of Commerce in the Commerce Clause, 80 ST. JOHN'S L. REV. 789, 830-31 (2006).
-
See Robert G. Natelson, The Legal Meaning of "Commerce " in the Commerce Clause, 80 ST. JOHN'S L. REV. 789, 830-31 (2006).
-
-
-
-
79
-
-
44949233413
-
-
U.S. CONST. art. I, § 8, cl. 18 (The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof (emphasis added)).
-
U.S. CONST. art. I, § 8, cl. 18 ("The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof (emphasis added)).
-
-
-
-
80
-
-
44949128703
-
-
Id. art. II, § 2, cl. 2 (Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments (emphasis added)).
-
Id. art. II, § 2, cl. 2 ("Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments" (emphasis added)).
-
-
-
-
81
-
-
44949247960
-
-
art. III, § 1, cl. 1
-
See id. art. III, § 1, cl. 1.
-
See id
-
-
-
82
-
-
44949203267
-
-
Professor Froomkin has labored hard to try to show that the jurisdictional definitions in Article III, Section 2 can function as grants of power. See Froomkin, Vestments, supra note 60, at 1352-53; A. Michael Froomkin, Still Naked After All These Words, 88 NW. U. L. REV. 1420, 1430 (1994). If the Article III Vesting Clause thesis was false, and the choice was either to read the jurisdictional definitions as grants of power or to conclude that the Constitution fails to grant any power to the federal courts, perhaps a reasonable observer would prefer the latter construction. But the fact that Article III, Section 2 could possibly serve as a hail Mary grant of power does not make it the most plausible source of the federal courts' power.
-
Professor Froomkin has labored hard to try to show that the jurisdictional definitions in Article III, Section 2 can function as grants of power. See Froomkin, Vestments, supra note 60, at 1352-53; A. Michael Froomkin, Still Naked After All These Words, 88 NW. U. L. REV. 1420, 1430 (1994). If the Article III Vesting Clause thesis was false, and the choice was either to read the jurisdictional definitions as grants of power or to conclude that the Constitution fails to grant any power to the federal courts, perhaps a reasonable observer would prefer the latter construction. But the fact that Article III, Section 2 could possibly serve as a "hail Mary" grant of power does not make it the most plausible source of the federal courts' power.
-
-
-
-
83
-
-
44949088238
-
-
See Calabresi & Rhodes, supra note 59, at 1187
-
See Calabresi & Rhodes, supra note 59, at 1187.
-
-
-
-
84
-
-
44949230914
-
-
U.S. CONST. art. I, § 1 emphasis added, Calabresi, supra note 61, at 1395-96
-
U.S. CONST. art. I, § 1 (emphasis added); Calabresi, supra note 61, at 1395-96.
-
-
-
-
86
-
-
44949244645
-
-
Lawson & Moore, supra note 2, at 1282 n.75.
-
Lawson & Moore, supra note 2, at 1282 n.75.
-
-
-
-
87
-
-
44949084187
-
-
One can build a strong case against the Vesting Clause thesis based on judicial doctrine or the subjective intentions of specific historical individuals, but those considerations, while admissible as evidence of constitutional meaning, become vanishingly insignificant in the face of the overwhelming textual, intratextual, and structural case for the thesis
-
One can build a strong case against the Vesting Clause thesis based on judicial doctrine or the subjective intentions of specific historical individuals, but those considerations, while admissible as evidence of constitutional meaning, become vanishingly insignificant in the face of the overwhelming textual, intratextual, and structural case for the thesis.
-
-
-
-
88
-
-
44949246073
-
-
See U.S. CONST. art. II, § 2, cl. 1 (the President shall have Power to grant Reprieves and Pardons); id. art. II, § 2, cl. 2 (the President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties); id. art. II, § 2, cl. 3 (the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate).
-
See U.S. CONST. art. II, § 2, cl. 1 (the President "shall have Power to grant Reprieves and Pardons"); id. art. II, § 2, cl. 2 (the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties"); id. art. II, § 2, cl. 3 (the President "shall have Power to fill up all Vacancies that may happen during the Recess of the Senate").
-
-
-
-
89
-
-
44949175587
-
-
See id. art. II, § 2, cl. 1 (the President shall be Commander in Chief of the Army and Navy); id. (the President may require the Opinion, in writing, of the principal Officer in each of the executive Departments); id. art. II, § 2, cl. 2 (the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint officers); id. art. II, § 3, cl. 1 (the President may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper); id. (the President shall receive Ambassadors and other public Ministers).
-
See id. art. II, § 2, cl. 1 (the President "shall be Commander in Chief of the Army and Navy"); id. (the President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments"); id. art. II, § 2, cl. 2 (the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officers); id. art. II, § 3, cl. 1 (the President "may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper"); id. (the President "shall receive Ambassadors and other public Ministers").
-
-
-
-
90
-
-
44949260682
-
-
For the classic renditions of these arguments, see Bradley & Flaherty, supra note 51, at 555-57; Lessig & Sunstein, supra note 62, at 48.
-
For the classic renditions of these arguments, see Bradley & Flaherty, supra note 51, at 555-57; Lessig & Sunstein, supra note 62, at 48.
-
-
-
-
91
-
-
44949156070
-
-
See, e.g, Lessig & Sunstein, supra note 62, at 47-48
-
See, e.g., Lessig & Sunstein, supra note 62, at 47-48.
-
-
-
-
92
-
-
44949197407
-
-
See Calabresi & Prakash, supra note 63, at 576-77
-
See Calabresi & Prakash, supra note 63, at 576-77.
-
-
-
-
95
-
-
44949246074
-
-
See id. at 21
-
See id. at 21.
-
-
-
-
96
-
-
44949194472
-
-
See Lawson & Moore, supra note 2, at 1283
-
See Lawson & Moore, supra note 2, at 1283.
-
-
-
-
97
-
-
44949120380
-
-
Professors Bradley and Flaherty spent a good portion of a 144-page article establishing this proposition with compelling force. See Bradley & Flaherty, supra note 51
-
Professors Bradley and Flaherty spent a good portion of a 144-page article establishing this proposition with compelling force. See Bradley & Flaherty, supra note 51.
-
-
-
-
98
-
-
44949237691
-
-
See John C. Eastman, Listening to the Enemy: The President's Power to Conduct Surveillance of Enemy Communications During Time of War, 13 ILSA J. INT'L & COMP. L. 49, 57 (2006); DOJ Memo, supra note 19, at 14-17.
-
See John C. Eastman, Listening to the Enemy: The President's Power to Conduct Surveillance of Enemy Communications During Time of War, 13 ILSA J. INT'L & COMP. L. 49, 57 (2006); DOJ Memo, supra note 19, at 14-17.
-
-
-
-
99
-
-
44949210116
-
-
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
-
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
-
-
-
-
100
-
-
44949214483
-
-
See DOJ Memo, supra note 19, at 15
-
See DOJ Memo, supra note 19, at 15.
-
-
-
-
101
-
-
44949101976
-
-
See Lawson & Moore, supra note 2, at 1281-84
-
See Lawson & Moore, supra note 2, at 1281-84.
-
-
-
-
102
-
-
44949223186
-
-
Id
-
Id.
-
-
-
-
103
-
-
44949195530
-
-
See Youngstown, 343 U.S. at 587.
-
See Youngstown, 343 U.S. at 587.
-
-
-
-
104
-
-
44949114806
-
-
See Dames & Moore v. Regan, 453 U.S. 654, 688 (1981).
-
See Dames & Moore v. Regan, 453 U.S. 654, 688 (1981).
-
-
-
-
105
-
-
44949094092
-
-
I am profoundly grateful to Guy Seidman for many things; bringing the critical role of the principle of reasonableness to my attention is one of them. For a brief discussion of the principle of reasonableness, see, at
-
For a brief discussion of the principle of reasonableness, see Lawson & Seidman, Treaty Clause, supra note 28, at 48-54. I am profoundly grateful to Guy Seidman for many things; bringing the critical role of the principle of reasonableness to my attention is one of them.
-
Treaty Clause, supra note
, vol.28
, pp. 48-54
-
-
Lawson1
Seidman2
-
106
-
-
34548235822
-
Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis, 87
-
See
-
See Gary Lawson, Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis, 87 B.U. L. REV. 289, 306-10 (2007).
-
(2007)
B.U. L. REV
, vol.289
, pp. 306-310
-
-
Lawson, G.1
-
107
-
-
44949126842
-
-
See id. at 307.
-
See id. at 307.
-
-
-
-
108
-
-
44949243708
-
-
See George W. Bush, President's Radio Address, supra note 12 (explaining the basic nature of the surveillance program).
-
See George W. Bush, President's Radio Address, supra note 12 (explaining the basic nature of the surveillance program).
-
-
-
-
109
-
-
44949107887
-
-
Many of the same considerations establish whether the program is consistent with the Fourth Amendment, which expressly imposes a reasonableness requirement on searches and seizures. See U.S. CONST. amend. IV. Critics of the NSA program often focus heavily on the fact that many searches under the program take place without warrants. See, e.g, Wartime Executive Power and the National Security Agency's Surveillance Authority: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 426 (2006, statement of Harold Hongju Koh, Dean, Yale Law School, This focus accurately reflects the (mistaken) view of the modern Supreme Court that warrantless searches are presumptively unreasonable, see, e.g, Bd. of Educ. v. Earls, 536 U.S. 822, 828-30 2002, but it has no foundation in the Constitution, which creates no necessary connection between reasonableness and warrants
-
Many of the same considerations establish whether the program is consistent with the Fourth Amendment, which expressly imposes a reasonableness requirement on searches and seizures. See U.S. CONST. amend. IV. Critics of the NSA program often focus heavily on the fact that many searches under the program take place without warrants. See, e.g., Wartime Executive Power and the National Security Agency's Surveillance Authority: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 426 (2006) (statement of Harold Hongju Koh, Dean, Yale Law School). This focus accurately reflects the (mistaken) view of the modern Supreme Court that warrantless searches are presumptively unreasonable, see, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 828-30 (2002), but it has no foundation in the Constitution, which creates no necessary connection between reasonableness and warrants.
-
-
-
-
110
-
-
44949109799
-
-
See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 68-71 (1998).
-
See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 68-71 (1998).
-
-
-
-
111
-
-
84886342665
-
-
text accompanying note 16
-
See supra text accompanying note 16.
-
See supra
-
-
-
112
-
-
84888494968
-
-
text accompanying notes 92-104
-
See supra text accompanying notes 92-104.
-
See supra
-
-
-
113
-
-
50949129633
-
See
-
§ 1802(a)1, 2000 & Supp. IV 2004
-
See 50 U.S.C. § 1802(a)(1) (2000 & Supp. IV 2004).
-
50 U.S.C
-
-
-
114
-
-
44949090197
-
-
See id
-
See id.
-
-
-
-
116
-
-
44949262635
-
-
See id. art. I, § 8.
-
See id. art. I, § 8.
-
-
-
-
117
-
-
44949187171
-
-
See Saikrishna Prakash, 91 CORNELL L. REV. 215, 232-40 (book review) (reviewing HAROLD J. KRENT, PRESIDENTIAL POWERS (2005)).
-
See Saikrishna Prakash, 91 CORNELL L. REV. 215, 232-40 (book review) (reviewing HAROLD J. KRENT, PRESIDENTIAL POWERS (2005)).
-
-
-
-
118
-
-
44949154144
-
-
Modern doctrine, of course, would find authorization for FISA in the Commerce Clause. See U.S. CONST. art. I, § 8, cl. 3. After all, if the Commerce Clause authorizes Congress to regulate what kind of plants one can grow in one's kitchen, see Gonzalez v. Raich, 545 U.S. 1, 31-32 (2005), surely it authorizes Congress to regulate the channels of electronic communication. But if the antecedent in this argument is false - and laughably false does not begin to describe it - then the conclusion does not follow. For a careful study of the original meaning of the term commerce, under which it would be very difficult to justify FISA, see Natelson, supra note 73, at 845.
-
Modern doctrine, of course, would find authorization for FISA in the Commerce Clause. See U.S. CONST. art. I, § 8, cl. 3. After all, if the Commerce Clause authorizes Congress to regulate what kind of plants one can grow in one's kitchen, see Gonzalez v. Raich, 545 U.S. 1, 31-32 (2005), surely it authorizes Congress to regulate the channels of electronic communication. But if the antecedent in this argument is false - and laughably false does not begin to describe it - then the conclusion does not follow. For a careful study of the original meaning of the term "commerce," under which it would be very difficult to justify FISA, see Natelson, supra note 73, at 845.
-
-
-
-
120
-
-
44949087264
-
-
See id
-
See id.
-
-
-
-
121
-
-
44949167299
-
-
See Lawson & Moore, supra note 2, at 1325-26
-
See Lawson & Moore, supra note 2, at 1325-26.
-
-
-
-
122
-
-
44949185155
-
-
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
-
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
-
-
-
-
123
-
-
84888494968
-
-
text accompanying notes 89-90
-
See supra text accompanying notes 89-90.
-
See supra
-
-
-
124
-
-
0041415120
-
The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43
-
See
-
See Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 272 (1993);
-
(1993)
DUKE L.J
, vol.267
, pp. 272
-
-
Lawson, G.1
Granger, P.B.2
-
125
-
-
15844407658
-
Discretion As Delegation: The "Proper" Understanding of the Nondelegation Doctrine, 73
-
Gary Lawson, Discretion As Delegation: The "Proper" Understanding of the Nondelegation Doctrine, 73 GEO. WASH. L. REV. 235, 237 (2005).
-
(2005)
GEO. WASH. L. REV
, vol.235
, pp. 237
-
-
Lawson, G.1
|