02:22 pm
Power Corrupts. Unenumerated Powers. . .
Today, the Obama Administration released one of the infamous John Yoo memos from 2001, entitled “Authority for Use of Military Force to Combat Terrorist Activities within the United States.” You can find the entire appalling document here. A few highlights for your reading displeasure:
The Fourth Amendment. . .would not apply [to the use of the military domestically against foreign terrorists.] Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant. . . .
[T]he courts would not generally require a warrant, at least when the action was authorizd by the President or other high executive branch official. The Government’s compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable. . . .
We believe that Article II of the Constitution, which vests the President with the power to resond to emergency threats to the national security, directly authorizes use of the Armed Forces in domestic operations against terrorists. . . .
Okay, so far we’re only on page 2 of a 35 page opinion. It gets worse from there.
There’s the part where Yoo suggests that the rights of British kings — supposedly the thing we were trying to get away from in that whole Revolution thingy — were also a precedent:
[A]n executive power, such as the power to use force in response to attacks upon the nation, not specifically detailed in Article II, Section 2, must remain with the President. This has been the general approach in regard to other powers not mentioned in the Constitution. . . .
These “exceptions” and “qualifications” are limited to those powers, in which the Framers unbundled certain plenary powers that had traditionally been regarded as “executive.” Some elements of those powers were assigned to Congress in Article I, while other elemens were expressly retained as executive powers in the enumerations in Article II.
So for example, the King’s traditional powers with respect to war and peace were disaggregated: the royal power to declare war was given to Congress under Article I, while the Commander in Chief authority was expressly reserved to the President in Article II. Further, the Framers altered other plenary powers of the King, such as treaties and appointments, by including the Senate in their exercise. Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.
Such unenumerated power includes the authority to use military force, whether at home or abroad, in response to a direct attack upon the United States.
I’m not a lawyer, but if I read this correctly, the reasoning is that the President retains all authority vested in the British Crown in the 18th Century that the Constitution did not assign to other branches of government.
One of the more stunning passages talks about previous conflicts as precedents that justify the proposed action:
Although the exercise of such authority usually has concerned the use of force abroad, there have been cases, from the 1794 Whiskey Rebellion on, in which the President has deployed military force within the United States against armed forces operating domestically. During the Civil war and the War of 1812, federal troops fought enemy armies operating within the continental United States. On other occasions, the President has used military force within the United States against Indian tribes and bands. In yet other circumstances, the Armed Forces have been used to counter resistance to federal court orders. . . . We believe that the text, structure, and history of the Constitution, in light of its executive, legislative, and judicial interpretation, clearly supports deployment of the military domestically.
A couple of things about this argument stand out. First, I think Lincoln would be surprised to hear that the Confederate “enemy army” was the same as the British invaders of 1812-14. As far as I know, he was careful never to portray the Confederacy as a sovereign nation — I mean, that was the whole point, wasn’t it?
Second, Yoo uses the Indian wars to justify proposed action — wars now widely acknowledged as one of the greatest embarrassments in American history.
Third, when the Armed Forces have been used to “counter resistance to federal court orders,” it was to enforce and uphold the Constitution, not ignore it. To put it another way, the federalized National Guard units were deployed to enforce court orders, not trample on the prerogative of the courts to issue them. Little Rock, Oxford, and Selma were a far different kind of action than what the Bush Administration was proposing.
Here’s another little gem:
Using the military to defend the nation requires action and energy in execution, rather than the deliberate formulation of rules to govern private conduct.
In other words, there are no laws when it comes to pursuing military action. Don’t let those pesky little rules mess up your vision, el Presidente.
And yet another:
If a standing army and navy are required to repel or deter sudden attacks, then by creating such forces and placing them under the President’s command, Congress is necessarily authorizing him to deploy those forces.
. . . thus making a formal Declaration of War unnecessary? That’s an enumerated power, but don’t let that get in the way of your logic, guys.
What I find particularly striking about all this is how it completely contradicts the strict constructionist theory of Constitutional law. As I understand it, constructionists argue that if it’s not explicitly enumerated in the Constitution, it isn’t there — it’s the basis of the entire constructionist argument against Roe v. Wade, to cite one example.
But Yoo is arguing the exact opposite: if it’s not enumerated in the Constitution, then it’s part of the President’s “unenumerated powers.” To appreciate the absurdity of this, think about that term for a minute. It basically means that anything not assigned to Congress or the judiciary is vested in the President.
That’s not a separation of powers. It isn’t even a theory of a unitary executive. It’s the prelude to dictatorship — a dictatorship that was to be justified thanks to memoranda diligently generated by Justice Department flacks.
I’m still reading this — I can only take so much in a single sitting. I may have more later.