The Administration’s M.O. in all such initiatives seems to be consistent. Within the Executive Branch, it uses the Department of Justice’s Office of Legal Counsel – which used to serve as a neutral arbiter on questions of Executive power – as a veritable department of justification: a place where Executive Branch ideologues concoct defenses, no matter how one-sided or incomplete, for every act the President would like to undertake. It is from OLC, for instance, that the notorious torture memos came – and now, the justification for warrantless wiretaps.In this way, the President can always claim that he was acting within his legal authority as the Justice Department itself defined it. But as the attorneys currently staffing OLC are not inclined to see any constitutional constraint on Presidential power at all, it is absurd to rely on their supposedly drawing the boundaries of the authority within which the President can operate.
This latest episode – of warrantless wiretapping – exhibits the same m.o. The Administration is not yet releasing its internal legal analysis for why the President could flout Congress’s scheme for authorizing secret surveillance of terrorism suspects. But the contours of this analysis are becoming clearer.As a first line of defense, the Administration is claiming that Congress, when it enacted its Authorization of the Use of Military Force (AUMF) in the immediate aftermath of 9/11, gave the President a free pass to end-run the FISA court.This argument is risible. As a general matter, the law strongly disfavors such implied repeals of existing statutes: If a law is meant to decimate prior law, it ought to say that’s what it’s doing, and generally, it does. And especially when the prior law relates to constitutional rights – here, Fourth Amendment rights – its repeal ought to be crystal clear, so that repeal can immediately be challenged in court.In addition, nothing in the debate over AUMF suggests that Congress had anything like the NSA surveillance program in mind when it gave Bush the go-ahead to attack Al Qaeda in Afghanistan. After all, that decision was a no-brainer, at the time. What Congressperson was gaming out what would happen years ahead? And again, where in the silence is authorization found?By this logic, the Administration could invoke the AUMF to override pretty much any federal statute. And that’s surely wrong.
We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government’s position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States.snipThe President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. There are two statutes which do authorize the President [343 U.S. 579, 586] to take both personal and real property under certain conditions. 2 However, the Government admits that these conditions were not met and that the President’s order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes ( 201 (b) of the Defense Production Act) as “much too cumbersome, involved, and time-consuming for the crisis which was at hand.”The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.
In our opinion, the action of the Executive Department in this case, originating in the expressed view of a subordinate official of the Interior Department as to the desirability of a different system of public land disposal than that contained in the lawful enactments of Congress,* [236 U.S. 459, 512] did not justify the President in withdrawing this large body of land from the operation of the law, and virtually suspending, as he necessarily did, the operation of that law, at least until a different view expressed by him could be considered by the Congress.
As much as I appreciate all these Republicans offering us advice about how we are endangering our political prospects by not supporting illegal NSA spying, I have to wonder if they really have our best interests at heart. I just get a teensy bit suspicious that it might not be sincere.
snip
Perhaps the NSA scandal is a political loser for Dems. We can’t know that now. But it is a winner for us in the long term. We believe in civil liberties and civil rights. With economic fairness, they form the heart of our political philosophy. If this particular issue doesn’t play well, that’s too bad. People who believe in things sometimes have to be unpopular. Over time, they gain the respect of the people which is something we dearly need.
Jeff remains standing–his eyes fixed on Paine.
PAINE: Listen, Jeff–you–you don’t
understand these things–you mustn’t
condemn me for my part in this without–
you’ve had no experience–you see
things as black or white–and a man
as angel or devil. That’s the young
idealist in you. And that isn’t how
the world runs, Jeff–certainly not
Government and politics. It’s a
question of give and take–you have
to play the rules–compromise–you
have to leave your ideals outside
the door, with your rubbers. I feel
I’m the right man for the Senate.
And there are certain powers–
influence. To stay there, I must
respect them. And now and then–for
the sake of that power–a dam has to
be built–and one must shut his eyes.
It’s–it’s a small compromise. The
*best* men have had to make them. Do
you understand?
(Desperately and with
greater emotion as
Jeff is silent)
I know how you feel, Jeff. Thirty
years ago–I had those ideals, too.
I was *you*. I had to make the
decision you were asked to make today.
(Breaking out)
And I compromised–yes! So that all
these years I could stay in that
Senate–and serve the people in a
thousand honest ways! You’ve got to
face facts, Jeff. I’ve served our
State well, haven’t I? We have the
lowest unemployment and the highest
Federal grants. But, well, I’ve had
to compromise, had to play ball. You
can’t count on people voting, half
the time they don’t vote, anyway.
That’s how states and empires have
been built since time began. Don’t
you understand? Well, Jeff, you can
take my word for it, that’s how things
are. Now I’ve told you all this
because–well, I’ve grown very fond
of you–about like a son–in fact,
and I don’t want to see you get hurt.
Now, when that Deficiency Bill comes
up in the Senate tomorrow you stay
away from it. Don’t say a word. Great
powers are behind it, and they’ll
destroy you before you can even get
started. For your own sake, Jeff,
and for the sake of my friendship
with your father, please, don’t say
“MR. SMITH GOES TO WASHINGTON”- Screenplay by Sidney Buchman,Story by Lewis R. Foster
