Friday, December 30, 2005
Article II.
Down in the comments, Murky Thoughts and I have been kicking around the question of whether the President's powers under Article II of the Constitution permit the NSA's disputed activities of late, even if one assumes that they are barred by FISA. Orin Kerr has another lucid post on this subject, and Cass Sunstein has been blogging about it also. While Sunstein is a little more sympathetic to the Article II argument, Kerr tentatively concludes:
[I]f the issue is how the Supreme Court would rule, I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim. That's my ballpark guess, at least. We may find out as early as this summer, too; if the Court grants cert in Padilla, which it probably will, there may be some interesting opportunities for opinions that shed more light on these issues.
To be clear, I think the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don't yet know. But in constrast to the difficult issues involving FISA and the AUMF, I don't see the Article II claim as a close one based on existing law.
Comments:
<< Home
If Article II gives the President [power] to do something, how can an act of Congress take it away?
If the Constitution were a prescription for an outcome rather than a methodology (c.f. Article III), the juxtaposition would be a disconnect as you suggest, but it isn't and so it isn't. For expediency the president is allowed to improvise when circumstances require him or her to ply uncharted waters within the Congressional domain, but once the Congressional cartographers catch up he or she is to use the shipping lanes they prescribe. That seems to be part of the reason for executive secrecy.
If the Constitution were a prescription for an outcome rather than a methodology (c.f. Article III), the juxtaposition would be a disconnect as you suggest, but it isn't and so it isn't. For expediency the president is allowed to improvise when circumstances require him or her to ply uncharted waters within the Congressional domain, but once the Congressional cartographers catch up he or she is to use the shipping lanes they prescribe. That seems to be part of the reason for executive secrecy.
For expediency the president is allowed to improvise when circumstances require him or her to ply uncharted waters within the Congressional domain....
But the argument is that we're not in "the Congressional domain," but rather within a domain accorded to the Executive Branch.
But the argument is that we're not in "the Congressional domain," but rather within a domain accorded to the Executive Branch.
Who says this isn't Congressional domain or that the two domains don't overlap? Article II says Congressional legislation is supposed to guide executive activity (""he shall take care that the laws be faithfully executed"). Does Article I exclude Congress entry from this domain. I wouldn't have thought so. The Congressional domain seems to extend deep into those of the other branches, allowing impeachment and amendment to the constitution itself. The powers balance each other, but that doesn't mean they're each to their own side of the teeter totter. If the constitution mentions no strict boundary, I suppose one's not there.
Who says this isn't Congressional domain?
That's exactly the question. And frankly, I have a hard time buying it -- I've just been trying to outline the issues.
That's exactly the question. And frankly, I have a hard time buying it -- I've just been trying to outline the issues.
I've just been trying to outline the issues
It feels more like you've been calling the plays and I've been doing all the running.
It feels more like you've been calling the plays and I've been doing all the running.
And I found it by actually reading Article II.
What I want to know is, why do some people ascribe so much importance to the oath of office taken by the President? Of what constitutional weight is it?
What I want to know is, why do some people ascribe so much importance to the oath of office taken by the President? Of what constitutional weight is it?
It's important because it gives us license to impeach the person who breaks the oath. Ditto for perjury and the oath a witness makes before taking the stand. You make it open and notoriously and thus offer the stake of your reputation as consideration that consummates a contract, which carries a known penalty for breach. And you can take that to the bank, because I stopped between sentences to think about what I was saying. Any other questions of law you need resolved?
Post a Comment
Subscribe to Post Comments [Atom]
<< Home
Subscribe to Posts [Atom]