Holder Should Heed Justice Jackson’s Words
The Obama administration faces an important rule-of-law test.


Andrew C. McCarthy

What could Eric Holder’s wall be telling him about the Uighurs?

It was just three weeks ago that the attorney general took the podium at the United States Military Academy to help inaugurate West Point’s new Center for the Rule of Law. Addressing the young cadets, he reflected on the role models who’d helped him develop his “unwavering commitment to the fundamental principle of the rule of law.” As he explained:

There is a tradition at the department that each attorney general chooses which portraits of prior attorneys general to place on the walls of his office. . . . One of the portraits I chose was that of former attorney general and Supreme Court justice Robert Jackson, a man who authored perhaps the most important court opinion on presidential power in the last century. Though only a concurring opinion, Jackson’s outline in the Youngstown case of three situations in which presidential powers fluctuate remains the gold standard to this day for defining the extent to which the president can operate consistent with the rule of law. Jackson’s standards are as informative today as they were prescient 57 years ago.

The attorney general surely overstates the significance of Justice Jackson’s famous concurrence in the 1952 “Steel Seizure” case (Youngstown Sheet & Tube v. Sawyer), in which the Court invalidated Pres. Harry Truman’s attempt to nationalize the steel mills during the Korean War. The tripartite analysis Jackson offered was elementary: Executive power is at its highest point when the president acts consistently with express congressional authorization, at its lowest ebb when he acts in contravention of a statute, and somewhere in the middle when he acts without the legislature’s weighing in one way or another. No other justice on the Court was moved to join the concurrence, Jackson himself called it “somewhat over-simplified,” and, recounting the opinion nearly 30 years later, the Court (in 1981’s Dames & Moore v. Regan) described Jackson as having simply “elaborated in a general way the consequences of different types of interaction between the two democratic branches in assessing Presidential authority to act in any given case.”

All the same, though, the concurrence was of monumental importance to this attorney general — until about five minutes ago.

Holder was one of the cadre of left-wing legal lights who spent several years denouncing Pres. George W. Bush for purportedly conducting illegal surveillance (A.K.A. “domestic spying”) against American citizens. Following the 9/11 attacks, like every wartime president since the technology has been available, Bush ordered his intelligence agencies to monitor enemy communications — including communications involving suspected al-Qaeda collaborators that crossed into or out of the United States. It was an obvious defensive measure to take, it was not done in total secrecy (top members of Congress from both parties were briefed), and it was part of the strategy that kept us free from domestic terror attacks for seven years. But there was a problem. Bush’s “Terrorist Surveillance Program” did not comply with the letter of a congressional statute, the 1978 Foreign Intelligence Surveillance Act (FISA): It did not undertake the laborious process of seeking permission from federal judges before eavesdropping.

For Holder and his allies, who were willing to compromise national security to score political points, this was an opportunity. The Jackson concurrence was dug out of the lawfare arsenal and used to beat George Bush like a mule. Painting the commander-in-chief as a Nixonian rogue, the Left twisted “lowest ebb” into “illegality” — as in, the president acts illegally whenever he transgresses a statute. To Holder, it did not matter that court decisions had held, despite FISA, that the president retained constitutional authority to order national-security wiretaps against agents of foreign powers. It did not matter that this had been the express position of the Clinton administration, in which Holder had served as deputy attorney general. Indeed, it did not matter that, in a 1994 memorandum, Walter Dellinger, then head of the Clinton Justice Department’s Office of Legal Counsel, had described the Jackson concurrence as “recognizing existence of President’s authority to act contrary to a statutory command.”

No, as far as Holder and his gang were concerned, Congress had enacted a statute and the president had not abided by it — case closed. Holder didn’t want to hear anything about the president’s solemn duty to use the powers at his disposal to protect the American people from hostile foreign threats — a duty that (unlike mollifying Congress, ensuring maximum due process for alien jihadists, and running General Motors) actually requires a president. Speaking for the Obama campaign at a June 2008 speech, Holder railed that government had “approved of secret electronic surveillance against American citizens,” decrying the measure as one of the Bush administration’s “needlessly abusive and unlawful practices” that betrayed our commitment to, yes, “the rule of law.”