Clash of Titans: Executive v. Congressional Powers

The "Wartime Executive Power and the NSA’s Surveillance Authority" hearings by the Senate Legislative Committee headed by Sen. Arlen Specter (R-Pennsylvania) yesterday were nothing short of contentious. The issue as revealed by the New York Times last year involves President Bush authorizing the NSA to perform thousands of wiretaps without Foreign Intelligence Surveillance Act (FISA) Court authorization, as required by law. Bush believes that his actions were legal because Article II of the Constitution gives him broad "commander-in-chief" powers, especially in time of war.

The hearing began with Attorney General Alberto Gonzales making a strange argument when he used both President Wilson and President Franklin Delano Roosevelt as examples of broad executive power used during time of war. Both presidents used what today would be considered extralegal methods to surveil Americans during World War I and II. Of course Gonzales did not have to go back that far back in time, he could have used President Richard Nixon as a more recent example, or former FBI chief J. Edgar Hoover who wiretapped Americans, presidential hopefuls and their girlfriends at will.

However, Gonzales did not mention the fact that FISA enacted in 1978 did not apply in any of the instances that he mentioned. In fact, FISA was written in response to the abuses of the Nixon Administration a few years earlier. Prior to 1978 Congress had not flexed its legislative muscle; it did with FISA.

The Supreme Court can resolve this clash between the executive and legislative branches, and the sooner the better. And, the Supreme Court itself (if this issue gets to them at all) will more likely look toward the reasoning of Justice Robert H. Jackson in his concurrence in the landmark Youngstown Sheet & Tube Company v. Sawyer (1952) to determine if Bush has acted constitutionally. In Youngstown, the Court (6-3) held that President Truman had acted unconstitutionally when he seized private property because the president did not unilaterally have the inherent authority to do so without Congressional approval, even during a time when national security was at stake.

Justice Jackson, in his concurrence in Youngstown, divided presidential power into three quite specific categories. Presidential authority is the strongest in cases where the executive acts with the express or implied authority given by Congress. In cases where Congress has been silent, what Justice Jackson called the "zone of twilight," the power of the president is at best uncertain. The president’s power is the weakest, however, in cases where the executive branch defies laws passed by Congress.

I believe the constitutional issues when it comes to the NSA using domestic wiretaps on its citizens without going to the FISA Court are quite obvious. Does the executive branch have the authority to order such wiretaps without due process as stated in FISA? Justice Jackson’s third category in Youngstown—-that is, presidential power is weak in these cases because Congress has acted and passed a law-—is apparent in the current NSA domestic surveillance cases.

According to FISA, in order to spy on American citizens, the executive needs probable cause before the requisite warrants are issued. When President Bush allowed the NSA to use wiretaps without going through the FISA Court he acted contrary to a law mandated by Congress. Again, the Bush Administration believes they have the authority to by-pass FISA because the president is acting under the "war powers" articulated in Article Two of the Constitution and, as such, FISA does not apply. The Bush Administration believes when acting as the commander-in chief in time of war they have broad implied executive powers and Congress cannot interfere, even via statute.

Let’s note what Justice Jackson wrote in Youngstown:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. ...Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

The difficulty now lies with how civil libertarians can get the Court to review the actions of the Bush Administration since the Supremes are the only ones who can make a definitive ruling on the matter at hand. It’s impossible for individual Senators or members of the House to bring the case before the Courts because individual lawmakers lack standing (unless they were wiretapped without a Court order). Our hopes lies with the ACLU and that their case against the NSA will bear some judicial fruit.


To read the ACLU Fact Sheet: Legal Claims in ACLU v. National Security Agency, please Click Here.

To read the myths of the NSA spying brouhaha, please Click Here.