Bench Memos

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Franck Contra McCarthy


I approach the duty of disagreeing with Andy McCarthy with great hesitation, especially as he seems to be able to write as fast as I think.  But disagree with him I must, about what I take to be the central argument in his impassioned NRO article posted today.

I yield to no one, not even John Yoo, in my attachment to an energetic executive.  (I may have been, in 1999, the first scholar in about 40 years to argue that the Youngstown ruling, overturning Truman’s 1952 seizure of the nation’s major steel mills, was wrongly decided.)

Andy takes to task those commentators on the Hamdan ruling who see a “silver lining” in the possibility that Congress can reverse the damage wrought by the Supreme Court in that case.  He is specifically worried about the implications of Hamdan for the debate—and for any future adjudication of the issues—regarding the legality of the terrorist surveillance undertaken by the National Security Agency (as revealed by the New York Times last December).  I am less certain than he that Hamdan will have much influence there, though I can see what he is worried about in some respects—and the current line-up of the Court gives me chills when I think about future cases during this war.  Mainly, though, I have to say that I was brought up short by Andy’s apparent argument—and here I will state what I see him implicitly saying just below the surface of what he does say, and trust him to set me straight if I read him wrong—that a president’s powers in all aspects of warfighting cannot constitutionally be interfered with by the exercise of congressional authority.

For instance, Andy notes that authority to establish military commissions “originally derive[s] from the president’s inherent authority under Article II of the Constitution.”  True, if what we mean is that in the absence of legislation on the subject, the president may employ such traditional law-of-war tribunals solely on the basis of his own power as commander in chief.  But when there is legislation on the subject, does it not have to be followed by the executive branch?  Andy doesn’t quite say, referring only to legislation like the Uniform Code of Military Justice that “arguably endeavored” to limit presidential power where military commissions are concerned.

Early in his piece, Andy pauses to note that, owing to the framers’ recognition of some “tyrannical proclivities” in the executive, they “left Congress in charge of the purse strings (among other things).”  The devil is in the unmentioned details of that “among other things.”  Here is some language straight out of Article I, section 8 of the Constitution that makes up some of those other things (I insert the conventional clause numbers in square brackets):

[9]        To constitute Tribunals inferior to the supreme Court;
[10]      To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
[11]      To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
[12]      To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
[13]      To provide and maintain a Navy;
[14]      To make Rules for the Government and Regulation of the land and naval Forces; . . .
[18]      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.

Even if we confine our understanding of clauses 12 and 13 to refer only to the “purse strings,” there is much else here.  The entire UCMJ rests on clause 14.  If that is not sufficient for Congress to legislate on the subject of military commissions governing forces and fighters other than our own, there are clause 9’s reference to “tribunals” Congress may establish; clause 10’s reference to its power to define and punish (and presumably to set the procedures for trying) “offenses against the law of nations,” undoubtedly including the law of war; clause 11’s power to set the rules governing treatment of captives in war (surely “captures on land and water” can refer to persons as well as things); and clause 18’s authority to make those laws ineluctably implied as right and fitting in relation to the other more specific powers of both Congress itself and the presidency.

I think the NSA/TSP/FISA issues that Andy raises are quite distinct, and pose a separate problem with some connections (but not very strong ones, I so far think—and I’m still thinking) to the bad reasoning employed by the majority justices in Hamdan.  But it is undeniable, on the basis of the text of the Constitution, that Congress has every right (and now perhaps a duty, thanks to the Court) to legislate the exact extent, boundaries, and procedures to be employed by any military commissions the president wishes to use to try and punish our unlawful-combatant enemies in the present war.  Andy is a little carried away, I believe, by the end of his piece, when he refers to “Hamdan’s imperial Congress” being contrary to the framers’ intent.  Yes, the framers worried about the “impetuous vortex” (Federalist 48) of legislative power.  But we cannot takes these worries of theirs as cause to ignore what the Constitution they wrote tells us plainly about the extent of the legislative power they in fact designed.

For my part, I persist in thinking that Hamdan’s only saving grace is that it poses no constitutional obstacles to the Congress legislating as it thinks proper in this area.  Presidential-congressional cooperation and friction are a normal part of our wartime experience.  What is new is the current extent of the intrusion of the courts.  The two responsible branches telling the irresponsible one to butt out—that’s what we need now.

Tags: Franck


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