AN UNCONSTITUTIONAL VIOLATION OF OUR LAWS

A great op-ed column from the Fort Worth Star-Telegram:

But which of the two branches elected by the people is properly more dominant? The U.S. Constitution specifies this: "All legislative Powers" are vested in the bicameral Congress. The article outlining Congress' powers is some two and a half times longer than the one describing the executive branch.

Moreover, the president's powers, unlike those of the legislative branch, are few and sharply constrained. He is to "take care that the Laws be faithfully executed." Which laws? Those enacted by Congress.

He can make treaties -- but only if the Senate goes along. He can appoint public officials (including national judges) -- but only if the Senate consents. He can ask Congress to pass laws that he considers "necessary and expedient" -- but Congress can ignore his wishes, pass laws that he finds repugnant or substantially alter his proposals.

Article II ends with a strong reminder of the very limited role that the president should play in our republic: "The President ... shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

But what about the president's power as "Commander in Chief of the Army and Navy"?

Who creates and maintains those forces? Congress. Which branch of government alone has the power to declare war? Congress.

Yet nearly every president, at least since Abraham Lincoln, has considered his inherent power as leader of the military to authorize his taking actions of which Congress might disapprove.
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In the 1866 Milligan case, the Supreme Court rejected Lincoln's authorization of military tribunals to try civilians suspected of treason: It "is the birthright of every American citizen when charged with crime, to be tried and punished according to law. ... The Constitution of the United States is a law for rulers and people, equally in war and in peace."

Four score and six years later, the Supreme Court rejected President Truman's claim that his power as commander in chief allowed him to seize steel mills in order to maintain strike-threatened Korean War steel production.

Justice Robert Jackson wrote a concurring opinion in the Youngstown case that we should carefully consider as we evaluate Bush's violation of the FISA law. When, Jackson wrote, the president "acts pursuant to an express or implied authorization of Congress, his authority is at its maximum." When the president acts in a "zone of twilight" in which Congress has failed to act, such legislative inertia invites "independent presidential responsibility."

But when, Jackson continued, "the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

This is precisely Bush's current position. As former Sen. Tom Daschle recently observed, Congress specifically refused Bush's request to include expanded presidential power against purported domestic threats in its Sept. 14, 2001, authorization of force.

Bush's judicially nonsupervised surveillance can be justified only as a temporary emergency measure against terrorism. We should consider its continued use an unconstitutional violation of our laws.

Tags: Bush, FISA, presidential powers, Constitution