From an editorial on the current domestic-surveillance controversty, by William Kristol and Gary Schmitt, in The Weekly Standard, 12/20/05 – http://www.weeklystandard.com/Content/Public/Articles/000/000/006/511bsnxq.asp:
The bolded part there seems to me to be supported by nothing but hand-waving. Certainly the authors make no legal or historical case for it, beyond what’s quoting above, and I can’t see how their conclusion follows. Does anybody care to try?
Nope.
If anything, I doubt the Founders envisioned such a strong Executive as we have today, principally because they didn’t envision such a strong federal government as we have today.
I suppose someone could make an argument that regardless of what the Founders intended, the President simply has the constitutional authority, and that laws restricting his authority to do things like the monitoring are unconstitutional.
That’s also devoid of historical support. But it has a certain “sauce for the goose” quality to it; the left has for generations been finding support in the Constitution for things that are not written and would not have gotten the support of the Founders.
But that’s a dangerous game to play. I think it’s better if we - on BOTH SIDES - read the Constitution for what the text says, period.
So… nope. I can’t get on board with that argument.
In the context stated, the only conceivable implication for “extralegal” is “not authorized by statute” – and the answer is, Yes, they did. The weakness, almost absence, of an executive was one of the chief problems of the Articles of Confederation government, and the FF equipped the President with powers and duties in the Constitution itself, in Article II.
Much as Congress has 17 listed grounds on which to legislate (plus those extended by amendments) and an 18th that extends its powers to anything “reasonable and proper” to carry out the others, the President has specific powers conferred on him by the Constitution and a similar sense of being able to do “what is reasonable and proper” to carry out his duties using those powers. The treaty-making power, the commander-in-chief power, are both good examples of fairly broad grants of power not depending on statute.
The issue, I think, is more one of whether a President has the right to contravene statute in carrying out his policies. And to that, my answer would of course be no, he is not above the law. (Cf. the Steel Seizure case from Truman’s presidency)
The President took an oath to “preserve, protect and defend the Constitution”. But suppose there’s a situation where the nation and its system of laws, including the Constitution, is being threatened and no legal means exist to defeat that threat? A President could then argue that by temporarily acting outside of the bounds of the Constitution he was working to preserve it overall. So I can conceive that there are situations, in times of great crisis, when the President is justified in contravening the Constitution.
That said, I think these situations are very very very rare and should only be invoked as a last possible resort. And under no circumstances should the Constitution be defied as a regular order of business. I see contravening the Constitution as the equivalent of using nuclear weapons - an option that needs to be available but hopefully will never need to be used.
You never, ever tire of this crap do you. Sometimes, when I’m full of holiday cheer, I imagine that you could post about the Constitution without this kind of repetitive baloney. Then reality hits.
I like Polycarp’s take on this: we should expect the chief exec to reasonably have the flexibility to do things necessary and reasonable and proper to exercising his formal powers and prerrogatives, even if there’s no law explicitly authorizing him to do specific act X, Y or Z – but if there is law explicitly saying that the government may only do so by means of A, B, and C, he should not be able to do it by whatever means he pulls out of his… hat, just because he says so.
If the Prez is gonna get Emergency Powers, I want it to be someone other than himself who grants those powers, and who has authority to decree an end to the Emergency.
But as you point out, this is a game. It smacks of debaters’ points and playground arguments. It is an argument of convenience.
The administration’s claim is no better. The administration claims that the 2001 Joint Resolution on the use of force in Afghanistan justifies warrantless wiretaps. It doesn’t. If they are suggesting that “it’s in there,” they are contradicting Bush’s own claim that judges should apply laws as written.
Of course, there is a doctrine permitting the executive to act without statutory authorization:
That’s really what this is about. Bush wants to be at the peak of his power, and suggests and absurdly broad reading of the Joint Resolution in order to shoehorn himself into paragraph 1 because if he doesn’t, he realizes that he’s in paragraph 3. Unfortunately, he’s gotten himself into a jam because:
In a case of extremely bad timing, the Padilla decision, issued today, also makes the administration appear disingenuous.
It looks like Mr. Bush just overdrew on his political capital account.
[contumelious sneer]Bush…[/contumelious sneer]
Quick answer: No, they didn’t.
[quibble]It’s “necessary and proper,” which is in all fairness, quite a different kettle of fish.[/quibble]
Notice a couple of other things, while we’re in there.
All of this suggests that he doesn’t have any sort of penumbral powers. The Constitution seems to command him to do exactly what he is being criticized for not doing–ask Congress.
The intent of the Framers, to the extent that it is relevant or discernable, included one concern with certainty. The last thing they wanted was another king.
I’m aware of the Constitutional wording. Did I ever say that I was expressly quoting the Constitution? “Reasonable and proper” is my own phrasing, with the support of McCulloch v. Maryland for the first word. If Congress could only do what’s literally necessary and proper, then we’d all be living in Libertaria, and consulting Liberal as our authority on constitutional law and philosophy as she is actually practiced.
Check. Now look at Article II, which I specifically referenced. The President himself is entrusted with powers by it. Not ones statutorily conferred on him by Act of Congress, but ones deriving from the Constitution itself. While this was the foundation of the “Imperial Presidency,” it also is the ground on which most of the presidents which people remember as having done a good job based their actions.
But nor did they want an impotent government like the one they’d been dealing with for the previous six years. So they were careful to equip the President with actual power and to delimit his powers.
The constitution specifically states that the Congress shall have the power to enact all laws necessary and proper in order to carry out its listed powers. I don’t see any such specific language in the description of the President’s powers in Article II. All of the President’s function with one exception are subjected to congressional origination, laws, or ratification, treaties, major appointments and the like. When the senate is not in session the President can make interim appointments for the purpose of keeping the executive deparments running but such appointments expire at the end of the next senate session. The veto is the only power that the president has all by himself.
I noticed that in all of the declarations of war listed in another threat, the congress specifically authorizes the president to employ the armed forces in the conduct of the war. If the president already possessed such an inherent power why would they bother with that?
I think the framers intended that the president be the executive officer who executes the will of congress. The veto power is a check on congress but even that power isn’t final as it can be overridden by a congress that feels strongly enough on the matter at hand.
Ok. Scanned McCulloch for the language in question. Didn’t find it. While I agree that necessary has been given some judicial gloss, I’ve never seen the court apply a “reasonable and proper” test. They apply a “rational basis” test, but even that seems a litte stricter than a pure reasonableness standard.
I don’t think this automatically follows. Can you elaborate? 
I looked. I wasn’t surprised by a somehow-overlooked necessary and proper power. Indeed, the executive’s list of powers seems pretty short. Doesn’t get anywhere close to a power to ignore the 4th Amendment, disregard statutes, or otherwise amend his own powers.
Now you’re equivocating. They were indeed vexed by an impotent federal government because the Articles of Confederation required unanimous decisions in order to legislate, raise an army, or impose taxes. During a war, the latter two were especially limiting. But these are legislative functions.
The Constitutional Convention was called to amend the articles to fix these problems. These problems are those of a legislative body–not an executive.
Of course, they also wanted an executive to administer the laws (i.e., apply them) and to represent us in interactions with foreign governments. Stuff like that, sure. And they worked him into the separation of powers, checks and balances system by giving him a veto (a negative power to require a supermajority for some legislation).
BTW, with respect to the intent of the Framers on the executive, Jack Rakove, in Original Meanings : Politics and Ideas in the Making of the Constitution, notes
Original Meanings at 244-245 (chapter entitled Creating the Presidency).
In other words, the Framers intentions were conflicting. What conclusions can we draw from that?
You never, ever tire of this crap, do you? Sometimes, when I’m full of holiday cheer, I imagine that you could post about Bricker posting about the Constitution without this kind of repetitive baloney. Then reality hits.
I think the founders took this issue into account when drafting the Constitution considering that the President as one person could act more decisively that the two committees that are Congress. Of course SCOTUS can’t even act until a lawsuit is filed, arguments heard, etc. Part of this can be seen by the being the only officer required to be a native-born citizen.
I think that the idea was that anything that would require quick action would be war (power explicitly given to the President) or could be (should be) handled at the state level. For example, I believe that the Founders would have believed that Hurricane Katrina should have been dealt with by the sovereign State of Louisiana, not the Feds.
Were “I’m rubber and you’re glue” and “Nuh Uh” already taken? Saving up “You’re stupid” and “Shut Up!” for when you’re feeling particularly original?
Could you elaborate on that?