Anticipation, or, What to do When Real Life Mirrors Class Topics

We spent 30 minutes talking about essentially this theoretical scenario on Wednesday.  It was interesting to have the subject of a direct confrontation between the Congress and the President come up in this context, because while there’s been an undercurrent of speculation in the blogosphere, the national press didn’t seem to notice until Friday that something along these lines might actually happen:

WASHINGTON (AP) — Determined to challenge President Bush, Senate Democrats are drafting legislation to limit the mission of U.S. troops in Iraq, effectively revoking the broad authority Congress granted in 2002, officials said Thursday.

Our class discussion was provoked by a more detailed hypothetical, but it boils down to the same question presented by this real-world scenario: Can they do that?

I think the class was divided as to whether this would actually be a Constitutional exercise of the power of Congress. It’s clear that Congress has the power to declare war, and it is likewise clear that the President is the Commander-in-Chief (C-i-C) of the armed forces. There is a persuasive argument that once the Congress has declared war, it can not draw restrictive constraints around the Executive to dictate how that war should be prosecuted. At least, I find that argument to be persuasive…

However, it also seems clear (to me at least) that just becuase the President claims to be acting under the Contstitutional grant of Executive C-i-C powers, that alone does not make it so. As an extreme example, just because the President claims to be acting as C-i-C during a time of war, that wouldn’t make it legal for him to waltz into your local Macy’s and start shooting people at random. Or, say, wiretap every phone in America. Or kidnap people off the streets in foreign countries and torture them in secret prisons. Claiming that a particular act is an exercise of C-i-C powers does not necessarily mean that act is legal.

Such a claim of privilege is especially suspicious when it is used to justify an act that is in conflict with the clear terms of existing law. In his concurrance to the decision in Youngstown Sheet & Tube v. Sawyer, Justice Robert H. Jackson wrote,

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. ^[n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. ^[n3]

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. ^[n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

The question we discussed in class was set up to mirror Youngstown closely. The teacher asked us, if the President seized commercial airplanes to use in ferrying troops and supplies to Iraq, and the very next day, the Congress passed a (veto-proof) law declaring the seizure of the planes to be void and ineffective, what result?

The answer was complicated, becuase at the time of the seizure, the President is acting somewhere between Justice Jackson’s category 1 (war has been declared, delegating authority of Congress to the Executive to act as C-i-C) and category 2 (there is no Congressional prohibition on Executive exercise of eminent domain in this context, and so if the Executive were to fairly compensate the owners of the planes, this might be a valid exercise of C-i-C power), but then Congress Acts to drag the actions down into catetory 3. Approximately one-third of the class thought this would be a valid exercise of the co-equal power of Congress, another third thought that once the President seizes the planes, C-i-C authority during time of war may not be controverted, and the final third refused to share their opinions with the classroom.

I tend to side with the second group. If Congress had Acted to prohibit Executive exercise of eminent domain in this context prior to the seizure, then the seizures would clearly be illegal, as a category 3 exercise of Executive power contrary to the express will of Congress. Since, in our hypo, the Act of Congress didn’t come until after the planes were seized, the Act amounts to an ex post facto law, which we didn’t talk about in class but which I think would have no force in that situation.

Which brings us back to the AP article I started with. Does Congress have the power to … take back … a valid declaration of war? I don’t think it does. Can Congress decide when the war is over? I don’t think it can. In order to conclude otherwise, I’d have to support the idea that Congress has the power to overrule the President while his power is at its zenith, in Justice Jackson’s category 1: Constitutional authority to act as C-i-C supplemented by the express prior delegation of authority. If Congress can do this, it means that Congress is not just co-equal, but superior, to the Executive branch, and that the Office of the President is just a puppet whose strings are held by whichever party has a Congressional majority. I can not accept that this is what the Framers of the Constitution intended.

Even if the Congress can’t end the war by legislative action, there is another way: Impeachment.

Youngstown is still good law. The Court cited to it in Hamdan v. Rumsfeld in 2006, ruling that the Executive could not imprison human beings indefinitely in the torture prison at Guantanamo. Torturing captives and wiretapping phones are clearly illegal acts and fall into Justice Jackson’s third class of activities, where the President’s power is at its lowest ebb. Dick Cheney and Alberto Gonzales can’t make abduction and torture legal by simply waving their hands and chanting “UNITARY EXECUTIVE COMMANDER IN CHIEF” while hopping on one foot widdershins around an alter made from VHS tapes of the Ollie North Iran-Contra testimony.

Congress must impeach Gonzales and Cheney over the illegal wiretapping programs, because that is the only recourse available to preserve our democracy. If Congress fails to impeach, they are effectively granting absolute power to the Executive to obey the law only when it pleases them to do so. If Congress fails to impeach, they are admitting that the President is above the law, and that the United States is now effectively a monarchy.