Alito (Again) on NSA Wiretapping and Youngstown

by Julian Ku

It’s all Alito all the time here at Opinio Juris (OK, not quite. Thanks to Chris and Peggy for breaking the Alito obsession, but here I go again).

Sen. Feinstein and Sen. Feingold questioned Alito again on the NSA wiretapping issue and invokes, once again, Justice Jackson’s concurrence in Youngstown setting out a framework for analyzing presidential powers. A couple of thoughts:

(1) Why is everyone obsessed with Justice Jackson’s concurrence in Youngstown? It is 50 year old concurrence. Why hasn’t anyone mentioned Dames & Moore, Justice Rehnquist’s 1981 gloss on this same framework, which wasn’t a concurrence? I know the Jackson concurrence is well-loved by legal academics, but it is not “binding precedent” nor is it “settled law”. Yet everyone seems to treat it as a “super-duper” precedent.

(2) As long as we are talking Jackson’s concurrence in Youngstown, I am glad Judge Alito clarified for Sen. Feinstein and others this essential point: not all statutes regulating the President’s exercise of Commander in chief powers is constitutional.

To be sure, The President’s power is at its lowest ebb when he seeks to act in the face of explicit congressional prohibition (arguably we are in that situation with the NSA wiretapping). But any reasonable judge has to then consider the constitutional question: Would a congressional prohibition on presidential wiretapping of international-domestic calls impermissibly encroach on the Commander in Chief power? It is theoretically possible (as Judge Alito seemed to point out) that the FISA restrictions on the President are unconstitutional.

This is a serious argument and one that a judge or justice must consider. It is not the President claiming that he can “override” federal statutes. Rather, he is claiming, as Judge Alito suggested, that the statute is unconstitutional and can’t bind him, just like a statute that violated the Fourth Amendment. Hence, every president has claimed the War Powers Act is unconstitutional and doesn’t bind them.

Oddly enough, Youngstown is one of the strongest precedents for the “Commander in Chief” argument. Yet everyone seems to wield it for the opposite proposition.

*UPDATE: Sen. Feingold goes back to this issue here, and seems to criticize Youngstown on exactly these grounds.

**UPDATE: Here is the transcript of the exchange

FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law. And you made comments about the balance of powers, that all branches of government are equal. There are three of us on this committee — Senator Hatch, Senator DeWine and myself — that also serve on the Intelligence Committee.
FEINSTEIN: And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America’s intelligence activities. And so this question of presidential authority at a time of crisis — not necessarily a full declaration of war state to state, but a time of crisis — because very prescient right now. And I wanted to talk to you a little bit about the president’s plenary authorities as commander in chief — plenary meaning unrestrained and unrestrainable, his plenary authorities to defend the United States — and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role. Now, we have explicit powers, as you’ve said, under the Constitution. And in Section 8, we have the explicit power 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. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It’s headed by a general. So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic). Now, again to the Jackson test. When the president’s power is in least is when the Congress has legislated. And this is where the national — excuse me — the Foreign Intelligence Surveillance Act, known as FISA, comes in.
FEINSTEIN: And FISA is very explicit. And let me read a part of it to you. Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted. It does provide — you used the word general. It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go — the attorney general can authorize, provided they go to the FISA court within 72 hours. I was concerned; there are two questions in this one statement.
FEINSTEIN: The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?

ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute. But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed. So he is given the responsibility of making sure that the laws are carried out.

FEINSTEIN: Let me press you on unconstitutional. Very few of us on this committee are not lawyers. I’m one of them. So let me just speak in common, everyday terms. There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done. As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words deter and preempt any future acts of terrorism or aggression against the United States.
FEINSTEIN: And he refused to do it. And, Mr. Chairman, if I could place this…
SPECTER: Without objection.
FEINSTEIN: … statement in the record, since we are going to be having hearings on what’s happened. I think this is an inappropriate bit of legislative history. I’d like to place it in the record.
SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.
FEINSTEIN: Thank you. So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans. The question then comes, I guess, does the plenary power of the president supersede this?

ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions. The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force? And I don’t know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other. Of course, there’s a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation. But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law — or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that’s being dealt with?
ALITO: And I think legislative history can be appropriately consulted. And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation. Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question. And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.

FEINSTEIN: Let me stop you right here, because that’s right. Because detention is a necessary following of an authorization of military force, so detention is logical. When you’ve got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without — and I’m not saying there isn’t a reason to do this.
FEINSTEIN: What I’m saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn’t that law prevail?

ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter. Then, depending on how that issue was resolved, it would be — it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson’s method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization…

FEINSTEIN: There was. No statutory authorization to wiretap, right?

ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would…

FEINSTEIN: But, if there wasn’t…

ALITO: There might be a constitutional issue. Let me stop there. There would be a Fourth Amendment issue, obviously. If you went beyond — if you determined that there was not statutory authorization, then as far as the issue of presidential power is concerned, you would be in Justice Jackson’s scheme, in the category where the president — you would have to determine if this is the argument that is made; whether the president’s power, inherent powers, the powers given to the president under Article II, are sufficient, even taking away congressional authorization, the area where the president is asserting a power to do something in the face of an explicit congressional determination to the contrary.

FEINSTEIN: Now, in my lay mind, the way I interpret that — and correct me if I’m wrong — is that you essentially have a conflict, and that it hasn’t been decided whether one trumps the other.

ALITO: I think that’s close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.

FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?

ALITO: Well, I’m not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential — he said it expressly — presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.

One Response

  1. I’ll grant there’s an argument that FISA is an unconstitutional infringement on the president’s Art. II power, but I think that sort of avoids the more troubling question, which is whether the President ought to be the arbiter of whether his own Art. II powers are being unconstitutionally restricted.

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