Bench Memos

On Hamdan, a Response to Brother Franck

On the rare occasions when I find myself in disagreement with Matt Franck, my usual reaction is to go back to the drawing board and try to figure out where I’ve gone astray.  Here, however, I take comfort in knowing there is very little daylight between us, since I could not agree more with the bottom line of his thoughtful Bench Memo:  “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.”

I suppose if I had to describe it, I subscribe to a fluid and predominantly political (in the sense of being non-judicial) theory of presidential/congressional relations, especially in matters of war and peace.  In this, ironically, two judicial giants probably best state the underlying principles. 

On the matter of tension between the branches, in yesterday’s piece that Matt mentions I quoted Justice Holmes’ assertion (from a 1928 dissent in Springer v. Philippine Islands) that “[t]he great ordinances of the Constitution do not establish and divide fields of black and white.”  On the matter of judicial aptitude in matters of foreign affairs and, particularly, threats against the nation, Holmes, writing for a unanimous court in Moyer v. Peabody (1909), explained that “[w]hen it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.  Public danger warrants the substitution of executive process for judicial process.”  (Emphasis added.) 

I wonder what the writers of this morning’s New York Times editorial, discussed here on NRO by my friend Mark Levin, would make of Justice Holmes.  Or, for that matter, of Justice Jackson.  Jackson, who loomed large in both the political and judicial arenas during times of profound national crisis, was even more blunt in 1948 (in Chicago & Southern Air Lines), writing:

[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. [Emphasis added.]


For me, this collective wisdom means two things.  First, the Framers intentionally and ingeniously gave the political branches broad and overlapping authorities without drawing bright lines between the end of one branch’s power and the beginning of the other’s.  Significantly, they also armed both branches with powers to be used against one another in the event of overreach. 

Second, this dynamic is supposed to be overseen by the American people democratically, not by the courts.  The Framers wanted an accountability nexus between the exercise of national security power and the people whose lives were at stake.  In addition to having no institutional competence in political matters (and the protection of the nation from foreign threats is the quintessential political matter), judges are unaccountable.  The Framers wanted these powers exercised by people who had to face the voters.  That would ensure the proper balance between liberty and security no matter what exigency occurred.  Besides, judicial precedents are the slaves of the past controversies from which they arise.  They are even less suitable than legislation for controlling future crises.  As I mentioned in the piece, Hamilton pointed out that there is no predicting these exigencies — they are of infinite variety.  It is far better to address them by the interplay of executive and judicial power, with the voting public as the barometer of what we should tolerate.

How does all this play out in practice?  As Matt points out, Congress has broad regulatory powers.  I did not mean by focusing on the power of the purse to dismiss the others (it was simply a matter of the article’s already being too long, so I highlighted the main trump card).  I believe these regulatory powers were meant to have more relevance domestically than in international affairs. (That, by the way, is another reason why I think the NSA program is in big trouble after Hamdan; even proponents of the TSP like me have to concede that Congress has a greater interest in the regulation of eavesdropping that touches the domestic U.S. than it does in the trial of enemy combatants overseas.)  But let’s leave aside the domestic/international divide.  I freely acknowledge that Congress has broad powers to regulate government, including the military.

On the other hand, the president has broad powers not only as commander-in-chief but, independently, as chief executive and as the only officer of government constitutionally required to take an oath to preserve, protect and defend our constitutional system.

These powers are meant to compete and cooperate depending on the (unpredictable) circumstances.  There are certain things that plainly are verboten for each side.  Congress can enact rules for the military, but I don’t think it can constitutionally pass a law that says, “The president may not use the air force in wartime absent an act of Congress approving same.”  The president can order the marines in and declare martial law if al Qaeda seizes New York harbor, but he can’t order the marines in and declare martial law out of fear that al Qaeda might someday try to seize New York harbor.

Between these extremes, there is a lot of gray area that allows for mutual action.  Matt gets to the heart of the matter by asking:  “When there is legislation on the subject, does it not have to be followed by the executive branch?”  The answer to that question — however it may draw shrieks from the modern, court-obsessed media and academy that came of age in Watergate — is not always.  This is not an open-door to tyranny.  It is common sense (see martial law mentions, above), as well as a testament to the genius of our system, which appreciates that life and crises are unpredictable.

I think the rule of thumb has to be that Congress should not legislate in a way that ties the hands of the president in a crisis, should resign itself to the fact-of-life that crises cannot be anticipated and legislated for with certainty, and should take a hands-off approach regarding the few but crucial matters that are unambiguously presidential prerogatives (making treaties, nominating judges, directing warfare).  Presidents, on the other hand, should respect acts of Congress outside these unambiguous prerogatives (e.g., it does not offend me that presidents ignore the War Powers Resolution), and should act in contravention of them only in times of true emergency and only insofar as is a reasonable response to emergencies. 

By and large, we should trust the American people to decide when presidents or Congress have gone too far.  If a president does something truly egregious, Congress has powerful trumps: funding can be cut off or, if it’s bad enough, he can be impeached.  If Congress oversteps its bounds in an outrageous way, the President can refuse to execute the resulting offensive laws.  Within those extremes, Americans will tell us what they want by voting out of office political representatives who, depending on the circumstances, have been inadequately attentive to either national security or civil liberties.  The Courts, meanwhile, should stay out of it, unless there are American citizens or sovereign states whose actual constitutional rights have been impaired by actions of the political branches. 

All that said, what is most disturbing about Hamdan (other than the Supreme Court’s new hubristic sense of itself as the last word on foreign affairs) is its suggestion that Congress need not respect that there are areas of inherent executive authority that are off-limits from legislation, and to which legislation must yield if, under the circumstances, the executive prerogative at issue outweighs the interest of Congress in regulation. 

Here, as I suggested before, is the big problem for the NSA program.  Detention and trial of alien enemy combatants is a conduct-of-war issue; sure, Congress has some legitimate interest, but conduct-of-war is a predominantly executive matter.  The president should not be bound in such areas by statutes that interfere with the conduct of war and compliance with which would require (a) revealing national security information to the enemy and (b) forcing police investigation duties on troops engaged in war-fighting.  In contrast, the NSA program implicates the privacy interests of at least some American citizens.  I personally think the wartime national-security imperatives and the limited nature of the program make the NSA program legal.  Still, I appreciate that Congress’s interest in regulating eavesdropping within the United States is greater than its interest in the detention and trial of enemy combatants outside the United States.  Therefore it is a reasonable argument — however much it chagrins me — that circumventing FISA is a more weighty matter than arguably circumventing the UCMJ.  I happen to think both circumventions are appropriate, but I’m not the Supreme Court.  And given what the Supreme Court has done in the UCMJ case, what shall I expect the justices to do if the clash of FISA and the NSA program ever gets before them?

In any event, I have no quarrel with the notion that Congress can “fix” Hamdan by enacting legislation to authorize military commissions — even in the very form they now exist.  My quarrels are (a) that this should be necessary at all, and (b) with the implication that, just because Congress has enacted laws that touch on military commissions, the president’s pre-existing constitutional authority is now deemed to be drastically diminished.  The logic of that is that Congress can eclipse presidential power whenever it chooses to — converting our constitutional president into a mere prime minister.  The Framers correctly believed, as Matt urges, that an independent, energetic executive was a must for national security.

Finally, not to go on much longer in this already lengthy response, I have spent a great deal of time and energy studying and trying to explain what I understand to be the legal basis for the NSA program.  (For those interested, see this lengthy white paper for the Federalist Society that I compiled with brothers Rivkin and Casey).  Throughout the Hamdan majority opinion, and especially in the Kennedy concurrence (particularly where he discusses Justice Jackson’s Steel Seizure concurrence), one immersed in these issues perceives resonances of the letter submitted to Congress by fourteen scholars of constitutional law and former government officials.  That letter, available here, posits that the NSA program is illegal.  Even though the letter is not cited in Hamdan, its influence is palpable.  It was that letter, and a similar ABA report, that prompted David, Lee and I to do our study. 

My own rule of thumb is to try to fight hard but fight fair, and admit when I’ve lost.  I’ve lost.

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