In the ongoing debate over the legality of the National Security Agency’s surveillance programs–the parameters of which, it is important to remember, are still largely unknown to the public–those who argue that the NSA programs are, or may be, illegal, have often relied on Justice Robert Jackson’s concurring opinion in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952), for the proposition that Congressional action may, in some fashion, qualify or limit the constitutional powers otherwise available to the President as Commander in Chief of the armed forces. (The Congressional action in this case, of course, would be the enactment of the Foreign Intelligence Surveillance Act (FISA) in 1978.) I want to make some specific observations on the relevance of Youngstown to the present debate, and then some broader comments on the relationship between the executive and legislative branches with respect to military affairs.
The language that has been quoted from Jackson’s opinion is the following:
We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
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. In these circumstances, 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 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.
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 the Congress from acting upon the subject. 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.
In my opinion, reliance on this analysis by critics of the NSA programs is misplaced, for several reasons.
First, as a threshold matter, it is not clear why precedential weight should be given to a concurring opinion in which no other Justice joined. The opinion of the Court was written by Justice Hugh Black; it contains no similar analysis. Justice Jackson’s concurrence is entitled to weight only to the extent that its arguments are deemed persuasive.
Second, the Youngstown case was, in my view, an easy one. It arose out of an order by President Harry Truman, which purported to place most of the nation’s steel mills under federal control. Truman was attempting to avert a strike which, he said, would hurt the country’s effort in the Korean War. The Supreme Court held that Truman lacked constitutional authority to issue such an order. That holding seems clearly correct; if a President’s constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator. The remarkable fact about Youngstown is that three justices dissented.
Third, the Justice Department defended Truman’s action on several constitutional grounds, of which his power as Commander in Chief was not the most important:
The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “The executive Power shall be vested in a President . . .”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.”
The justices devoted most of the their discussion to the question whether Truman’s action could be defended under the broad rubric of “executive Power,” not to whether it was a valid exercise of his powers as Commander in Chief.
Fourth, it is not clear whether Justice Jackson even intended his three-part analysis, in which the exent of the President’s authority turns in part on whether he acts with or against the wishes of Congress, to apply to his powers as Commander in Chief. Jackson lays out his three categories before he specifically addresses any of the executive’s Article II powers, then begins by talking about the President’s exercise of “the executive Power.” More important, if Jackson did intend his typology to apply to the President’s powers as Commander in Chief, then he was plainly wrong.
Take category number two, for example. President Reagan once ordered the Air Force to intercept an airplane that was carrying terrorists to freedom. Congress had said nothing about the matter, one way or the other, so this would be a “category two” action in Jackson’s system. Yet the consequences suggested by Jackson–“there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain”–clearly do not follow. There is no such “zone of twilight.” Reagan undoubtedly had the power to direct the Air Force to intercept the terrorists; Congress, equally clearly, did not. Any directive by Congress to intercept the terrorists would have been a nullity.
Jackson’s analysis might have some plausibility in domestic affairs, where the President and Congress both have major, and potentially overlapping, areas of responsibility. But I doubt it; I think it is simply the product of sloppy thinking. In any event, it has no application to the President’s powers as Commander in Chief.
Fifth, the ground on which the Youngstown court rejected Truman’s claim that his powers as Commander in Chief gave him the right to seize steel mills was not the fact that Congress disagreed, but rather, and more properly, the fact that the seizure was a domestic, not a foreign, matter. Justice Black wrote for the majority:
The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.
Likewise, when Justice Jackson turned specifically to the President’s war powers, he emphasized the domestic nature of the steel controversy, not his own three-part test:
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.
For the foregoing reasons, I think that the Youngstown steel case has little or no value as a precedent in the current debate, and Justice Jackson’s three-part analysis, in particular, furnishes no guidance, as it would obviously be wrong if used to weigh the President’s powers as Commander in Chief.
More generally, I think that any suggestion that Youngstown or any other authority stands for the proposition that Congress can, by legislation, limit or qualify the constitutional powers that the President would otherwise enjoy, is incorrect. This claim flies in the face of basic constitutional principles, starting with the fact that the executive is a coequal branch of government. That concept is fundamental to the constitutional framework. I think it is beyond dispute that under the Constitution, Congress can no more limit the President’s authority by legislation, than the President can detract from Congressional powers by executive order. This strikes me as self-evident, but if authority is required there can be none better than James Madison, in Federalist No. 48:
It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.
I think there is only one way in which an argument for the illegality of the NSA intercepts can be framed. I think critics must argue that the intercepts take place in a zone of military policy where both the President and Congress have powers; that Congress, in enacting FISA, was not limiting the President’s powers, but exercising its own; and that, where the President and Congress both attempt to exercise legitimate powers under the Constitution, their competing claims should be reconciled by concluding that Congress cannot bar the President from exercising his constitutional powers, but can regulate the manner in which he carries out those responsibilities.
Can such an argument persuasively be made with regard to electronic surveillance for foreign intelligence purposes? If so, it would have to begin with Congress’s constitutional powers relating to military affairs:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Of these powers, the only one that possibly could apply is: “To make Rules for the Government and Regulation of the land and naval forces.” Little case authority construing that clause exists. It was the apparent basis for Congress’s adoption of a system of military justice; more recently, Congress adopted the “don’t ask, don’t tell” policy on homosexuals in the military pursuant to this clause.
While I have not had time for exhaustive research, I can find no suggestion in the case law that the “government and regulation” clause has ever been found to conflict with or limit the President’s powers as Commander in Chief. I think the most natural reading of the clause is that, along with the power to raise and support an army and to provide and maintain a navy, it gives Congress the right to establish and organize the armed forces; but the actual deployment and use of the armed forces so established, especially in time of war, is exclusively within the powers of the executive branch. Thus, viewing the NSA as a military asset and its surveillance programs as part of the conduct of a war by the chief executive, Congress could regulate, for example, employment policies of the NSA, but could not dictate to the President how he uses the operational capabilities of the NSA to further military goals. On that approach, if FISA were construed in a manner that would interfere with the President’s authority as Commander in Chief, it would be, to that extent, unconstitutional.
PAUL adds: The counter-argument, I imagine, would be that Congress’ power “to make Rules for the Government and Regulation of the land and naval Forces,” coupled with its power under the “necessary and proper clause,” gives it the right to enact legislation to protect citizens from the military. I can imagine a point where I would want Congress to be able to check the president’s power to have the military involved in domestic affairs, although the NSA intercept program is a long way from that point.