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Re: Conway & Fisa


Let’s look at George Conway’s excellent post. He cites this for Congress’s authority pass FISA and set forth the conditions under which the president, as commander-in-chief, is to prosecute the war: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, . . . To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces;…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.”

George appears to argue that Congress has much broader power over the conduct of war than the Constitution provides through the necesssary and proper clause. But it is well settled that Congress does not have the authority to micro-manage military operations, and there’s no reason intercepting foreign intelligence should be any different. This is an excessive view of the clause. Respecting the issues relevant to this debate, Congress’s authority includes the power to declare war; to make laws relating to POWs and detainess; to raise and fund a military; and to make laws regulating the armed forces. These are the powers to which the necessary and proper clause applies in the context of our debate. George appears to focus on the language dealing with regulating the armed forces.

Congress does, in fact, regulate the armed forces in many respects. It can decide on uniforms, salaries and pensions, age requirements, set up a military justice system, etc. But Congress has no authority to command the armed forces. That is clearly an Art. II, Sec. 2 power conferred on the executive. And the way these clauses have been squared, and can only be squared, is fairly straightforward — military tactics and techniques, including, I would argue, the collection of intelligence on the enemy, are left to the executive branch. They always have been. Indeed, FISA is a relatively new (1978) and rare effort by Congress to regulate an activity that, in my view, belongs within the president’s broad authority. See Federalist No. 69.

The necessary and proper clause does not, and cannot, be read as excessively as George suggests without neutralizing to a significant extent the president’s commander-in-chief authority. The framers understood that in Congress they were creating a legislative body incapable of making timely and flexible military decisions especially during war. So, yes, Congress can regulate the military, but it cannot lead it.


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