Just how large an incursion into presidential power is the Supreme Court's Hamdan decision last week? Andy McCarthy argues that it is huge. More importantly, the Supreme Court's decision has thrown the whole ability of the President to take proactive measure to protect the country into limbo as McCarthy notes:
[T]he silver lining grasped by a number of usually astute analysts . . . goes something like this: “The Supremes may have slapped down President Bush’s effort to deny al Qaeda terrorists trials that would provide them with an education in American intelligence capabilities. But don’t fret: Congress can make it right.”
Underlying this rosy construction, though, is an implication that would have horrified the Framers: The president’s power to safeguard the United States from external threats is dependent on Congress’s willingness to “authorize” protective measures. Our forebears knew better. They had lived through over a decade of the Articles of Confederation. They had seen national security by committee. They well understood that it was no national security at all.
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. . . On its face, Hamdan is a case about military commissions, not electronic surveillance. Yet, its facts are saliently analogous to those of the TSP.
Military commissions, like national-security eavesdropping, originally derive from the president’s inherent authority under Article II of the Constitution. Later, legislation was enacted, in the Uniform Code of Military Justice (UCMJ) and its predecessor statutes, that arguably endeavored to limit military commissions, just as FISA legislation unquestionably undertook to restrict the executive’s ability to conduct surveillance of hostile foreign operatives.
Both situations thus present the question of whether Congress can taper presidential powers (such as conducting war, negotiating treaties, nominating judges, etc.) by passing statutes that touch on these Article II prerogatives. . .
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Under Hamdan’s logic, even if the president starts out with inherent Article II authority, that power — constitutional power — can now be rescinded by statute. The new theory is most expansively set out in the Hamdan concurrence of Justice Anthony Kennedy, who offered a “constitutional principle that congressional statutes can be controlling.”
With no discussion of the constitutional moorings of presidential power to direct wartime military commissions, Justice Kennedy began by asserting that “Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority.” He then dropped the hammer:
Where a statute provides the conditions for the exercise of a governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.
This sounds reassuring and is … preposterous. First of all, what if a president, or Congress, is wrong? What if the president signs a flawed law? That, to put it mildly, has been known to happen. The customary operation of the political branches is, well, political. It is always influenced by the pressures of the moment, which often are given precedence over what the Constitution objectively requires.
This is precisely why we insulate the federal courts from political pressures. Every now and then, a president (like Jimmy Carter) will overreact to the fleeting political currents of a scandal (like Watergate) by agreeing to a statute (like FISA) that cedes to an opportunistic legislature important presidential powers (like determining which enemy operatives should be monitored in wartime). It is in those times when we most need the Supreme Court to ignore the politics and remind us that a president’s ill-advised concessions can no more reduce Article II than Nixonian overreaches can inflate it. Constitutional authority is an objective, enduring fact. It does not shift with the winds of transitory politics. . .
Read it all.
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