Baseball Crank
Covering the Front and Back Pages of the Newspaper
February 6, 2006
LAW: Inherent Authority

Orin Kerr makes an excellent point about two different meanings of "inherent authority" and how they get confused.

Posted by Baseball Crank at 9:30 PM | Law 2006-08 | Comments (19) | TrackBack (0)

I have real problems with "inherent authority," mainly on philosophical grounds.

Look, we grant our society and government all sorts of conventions and powers. At 3 AM, we basically assume that we still stop at a red light, so such a law does extend beyond the realm of common sense. But Gonzalez is operating under a premise that the Federal Government has "inherent authority," when it does not. I realize as a non-lawyer, I should not try to argue the law, but whomever said lawyers are the ultimate authority on the law had to be a lawyer, which is not, in this case, a compliment.

The Constitution is a very brief document, well written, and does what no other foundation of a government does: It is a brake, not a gas pedal. It says what powers the federal government has, and if it's not enumerated there, then it's up to each state to regulate it. However, we also agree that the states, separately, or acting in concert, cannot take the powers that the Constitution says the Feds do have. So the powers to wiretap without a warrant can't be given, period. You can take all the precedents you want, all the court cases, it doesn't mean a thing. Searches and seizures, by whatever medium, is not allowed without a warrant. Period. So FISA was set up to regulate certain types of warrants. It even allows you to get them after you wiretap.

There is no Inherent Authority beyond the consititution, period. Only those that We The People allow our governemtn to have. No more. Not one step more.

Posted by: Daryl Rosenblatt at February 7, 2006 9:32 AM


Kudos to you. Well-stated.

Posted by: Mike at February 7, 2006 9:54 AM

1. You can say that, Daryl, but it doesn't make it so. The president is, for example, the Commander in Chief. But the Constitution does not say that he can direct the Army to, say, bomb a foreign city, or the Marines to conduct an amphibious landing. Does that mean he can't? Inherent means inherent in the nature of the enumerated powers, not an unlimited grant of plenary authority. And listening to the enemy's communications has long been part of those powers.

2. The Fourth Amendment does not say that all searches must have a warrant. It never has.

Posted by: The Crank at February 7, 2006 10:06 AM

Inherent in the nature of enumerated powers (e.g., C-in-C) is the right to spy on your own citizens now? I missed that memo.

It also includes violating federal law? You can play with Gonzo's words all you like, but he's basically saying that the Executive's inherent powers during wartime means the freedom to ignore federal statutes.

That's crap, it's sophistry, and it's incredibly dangerous.

Posted by: Mike at February 7, 2006 10:26 AM

1. Spying on the enemy is an inherent power. If the enemy is in the US, or talking to a US citizen, or talking on a cell phone with a US number, that doesn't change the equation, that's all I'm saying. And all that's needed to cover this program, based on what we've seen.

2. But Orin's point, and mine, is that that gets you as far as saying you can do this if Congress hasn't legislated in the area. I agree that it's a thornier question once Congress does attempt to restrict the president's pre-existing powers, since that raises the question of whether Congress can do that (recall that it is possible for an Act of Congress to be unconstitutional) and, if not, whether the president is right to just ignore the statute. And Gonzales should be clearer in distinguishing which type of power he's talking about.

Posted by: The Crank at February 7, 2006 10:46 AM

Granting that Bush's eliding of FISA is extraordinary, its still tame compared to other extraordinary measures taken by Presidents in wartime (Lincoln suspened habeus corpus, a constitutional guarantee) and near-wartime (Adams' alien and sedition acts, which obliterated freedom of speech).

The principle of extraordinary presidential power during wartime is not objectionable. Defining "wartime" is the problem. Congress has abdicated its constitutional privilege in this regard for the last half-century (w/ the '01 authorization of force but the most recent example), and the executive has stepped in. Thank goodness too.

As always, equilibrium in the tension betw/ security and liberty is desired. Circumstances may call for emphasis on one or the other at particular times, but neither should ever be fetishized. Americans are quite capable of recognizing and rejecting threats to our liberty. Thank goodness again. We're less good at properly identifying the magnitude of challenges to our way of life. If, to quote Jackson's cliche, "The Constitution is not a suicide pact", nor then are the federal statutes thereunder.

Posted by: seamus at February 7, 2006 11:10 AM

A thorny issue, clearly.

Spies, by nature, have NO rights or privileges. That's why you saw things like The Great Escape, where the escaping soldiers tried to get their uniforms on, etc. It's the nature of the beast.

However, while spies should not enjoy rights or protections of our Constitution, citizens and legal residents should. And when Lincoln and Adams tried to fracture those rights, they were told they could not. Times change, and as we discussed yesterday, Wilson did, as did Roosevelt with the Japanese (and BTW, Italians on the west coast too).

FISA's "back dated" warrants really exist as a good bookkeeping scheme, but also lets you audit just what you are monitoring.

Here is what SHOULD be done:
1. You think some terrorists are talking, and you want to know quickly, you listen in, note it on your log, and then, once a day, go to FISA and ask for the warrants, which they will no doubt grant.

1A. You have a permanent listening post on someone you are sure is tied to Al Qaida, you should already have your warrant.

2. Every contact should have a log of what it is they are listening to.

3. Audit those records. How many of these wiretaps yield anything? Maybe the FBI has stopped lots of things they don't want us to know about. I bet the NYPD has stopped more, but that is besides the point.

4. If the audits reveal lots of nothing, then you can more efficiently allocate your resources, you are wasting wiretappers time; if it reveals a lot, then they are doign their job. If they reveal that many of the taps are in fact between citizens, and yields nothing, then you must go after the wiretappers.

In other words, no warrant, either before or after, then you are simply fishing in uncharted waters, without a permit to boat or fish. And you should not be doing that. You are not keeping us safe, you are intruding. There is a difference.

Posted by: Daryl Rosenblatt at February 7, 2006 11:33 AM

Crank & Seamus-

Good stuff, good points.

But, Crank, a little perspective, please. Of course a law can be declared unconstitutional. But this is a 28 year old law we're talking about. Call me a skeptic, but when established law is retroactively declared unconstitutional to make way for dubious policy, that's a concern. As each of you is aware, Taney declared the Missouri Compromise unconstitutional between denying Dred Scott his due process rights and declaring "negroes" a "lesser" race, or whatever it was he said.

I think 28 year old federal statutes deserve a tad of deference.

And you have to admit the Administration's abject failure to so much as explain why a 72 hours *after the fact* warrant is such a burden is troublesome. I don't want to see this as a naked grab for an extension of executive power, but man it's hard not to. Why the arrogance? Why the stubbornness?

Seamus, I agree with your principles. But the constant citations to Lincoln's suspension of H.C. is a bit of a canard. Ignoring the enormous centralization of Federal power that the Civil War brought about, Lincoln had a "good" reason to do so: how can you hold someone as a prisoner of war when you're arguing simultaneously that the side for which he fights is *not* a foreign power and not a legitimate nation? In other words, how do you detain someone you claim is a "citizen," without due process, when any Federal Judge can demand that the Union Army "produce the body" while a war's going on? Federal judges simpathetic to the Confederate cause could have emptied US prisoner of war camps via writ!

But all that being said, Lincoln should not have suspected the writ. Hell, he shouldn't have permitted folks to buy their way out of the draft either. Just because a great man like Lincoln made the wrong decision during tough times doesn't mean that the current guy should do the same.

What's that famous expression? Tough cases make bad law? We're seeing it in spades right now.

Posted by: Mike at February 7, 2006 11:36 AM


First to your reliance on the endurance of FISA: its longevity may just reveal that its outdated. We know it was adopted to stop wiretaps on college kids who liked to try to impress girls w/ their radicalism. Mission accomplished. Crank's argument that the NSA program covers an area that FISA does not address- an area in which Congress has not legislated- is persuasive in this regard.

Regarding Lincoln and habeas corpus- I'd say Bush's reasons, in the current instance, are as "good" as Lincoln's were then, and that Bush's actions are, anyway, less offensive to liberty. The comparison is hackneyed, I'll plead guilty there, but its not a canard. It helps put our current circumstances in historical context.

Posted by: seamus at February 7, 2006 12:05 PM


I'll plead guilty as well to any violations of diction. Good catch.

As to your other points, I just can't agree. You're right that Lincoln's reasons were poor, as are the current administration's. That's not good enough for me. I want good reasons.

Which leads to my other point: Neither the President, nor Gonzalez, nor anyone at the NSA has adequately explained why the hassle, the inconvenience, of paperwork necessitates the willful violation of a federal statute (whether the statute is good enough or not). There is nothing in FISA that prevents the NSA from warrantless wiretapping in the first instance. The only "hassle" it presents is the after-the-fact paperwork.

Yet Gonzalez -- in his guise as Administration Hack #1 -- offers only the standard variations on "well, if we follow the law as written, the bad guys will KILL you."

I'm not seeing a legitimate policy legitimately pursued. I'm seeing one branch of government grabbing for as much as it can get.

Posted by: Mike at February 7, 2006 12:59 PM

I don't disagree. I just don't think that one branch, in this case the executive, grabbing for all the power it can is necessarily a bad thing. Especially when its co-equal branch has proven timid, dysfunctional or worse.

I don't, in fact, think Lincoln's, or Bush's reasons, were, or are, poor. They've both faced threats to national security; they've both understood their job as C-I-C to protect America w/ any and all means at their disposal; they've both tested the outer limits of those means in order to better do their job. A broader Bush Lincoln comparison borders on laughable, but in this, anyway, they're similar. They emphasize their authority in the face of threats. Others, similarly situated, have shirked.

Its interesting to recall that Cheney and Rumsfeld, who I think history will show, if it hasn't already, to be the prime movers in this administration, are veterans of the Ford administration. Executive power was at its modern nadir at that time (FISA, not coincidentally, was adopted in this time period). The effect of their experience then cannot be overstated. Generously, I think this administration believes that its best to over-reach, trusting, thanks to experience, that countervailing political forces will make corrections. If the executive isn't doing the overreaching, another branch will, w/ dismal results- thats the Ford veterans' experience. They're bound and determined not to let it happen again.

As for Gonzalez, he's a hack and a mediocrity. But this administration long ago decided that bland yes-men suit their purposes just fine. In our hysterical media age, can you blamer them.

Posted by: seamus at February 7, 2006 1:25 PM

I think a significant point is being missed. Continually I hear about this program spying on Americans, yet there has yet to be an example brought forward of a case where an American citizen has been spied upon.

The rights and privileges granted in the US Constitution apply to citizens of this country. The key word there is citizen. They do not apply to aliens, certainly not illegal aliens, and most definately not to persons that intend our country harm.

Until it can be shown that this administration is spying on US citizens (without cause), this arguement is moot. None of the stated arguements apply.

People conducting activities such as sabatoge, terror operations or spying are not even covered by the Geneva Convention, so why are we concerned about their rights? By the very rules that govern modern warfare, they have none.

Posted by: maddirishman at February 7, 2006 2:19 PM


Very interesting thoughts. Hadn't thought about your '00s thru the lens of the '70s angle, but I'll chew on it a bit. I also agree that Congress has embarrassed itself beyond description. Ceding power to the other branches, to foreign threats, to "special committees," etc. No argument from this seat.

But I'm a big believer in the "two wrongs don't make a right" theory (now you wanna talk about hackneyed!). I don't see our President bravely grabbing the ball when no one else wants to take it. Grabbing the country by the balls is closer to my view, but I'll respect this as a family site (our host is expecting afterall), and leave it at that.


If what you say is true, I agree. No due process for non-citizens because, well, nothing is "due" to them. As a man married to a non-citizen I'm all-too-aware of that.

But I haven't seen facts supporting your notion.

And that's part of the problem: the "everything is covert, your country is none of your damn business" attitude the current adminstration hews to. Arrogance doesn't even begin to describe it.

It's in favor of a very radical program, one that requires an equally radical reading of statute, if not the Constitution. Lay out some proof, fellas!

Posted by: Mike at February 7, 2006 2:32 PM

I think you are making my point. There have been no examples brought forward indicating the administration has acted improperly. The fact that the program exists does not mean it is improper.

One of the most misunderstood concepts floating around today is that we as citizens are entitled to know every act our government is performing, even behind the scenes. If the administration laid out all of the processes they were going through to fight terrorism in the world, we would never catch another terrorist or stop another terrorist act until we changed tactics. This is not the time to talk about tactics, maybe 5 years from now or 10 years from now, when the tactics have changed you detail what was accomplished.

As for non-citizens, don't misunderstand my point. There is proper way to enter this country and the people who follow this procedure are due our respect, understanding and support. At one time the vast majority of our ancestors came from somewhere else and the overwhelming majority of them respected the process. If you follow the process, you are welcome. If you do not, you should expect to be a target.

Posted by: maddirishman at February 7, 2006 3:48 PM


I sense a miscommunication regarding your second point. I agree with you; no due process for non-citizens. Not sure where we went awry there, but no harm, no foul I guess.

As for your first point, if I'm making your point then you'll need to lay it out better. The administration -- which works for us -- has *admitted* to violating a federal statute. That's not "improper," as you say, but Illegal!

I think the burden's on them to show us that there's some reason for that violation. I'm not asking for a flow chart showing the movements of every terror cell in North America. Just an explanation of the reason that the 72 hour after-the-fact warrant requirement is so onerous as to jeopardize national security. Or, an example showing that n% of those being wiretapped were non-citizens, etc.

Why can't they do that? Because they just don't feel like it. And that's no reason. They work for us.

Posted by: Mike at February 7, 2006 4:27 PM

The Constitution states that all three branches are co-equal and can not regulate powers and authority that is granted in the Constitution. The Constitution grants to the executive branch the duty of conducting wartime activities. Therefore, in a time of war a statue that limits the CinC's ability to conduct those operations is void. While an offical war has not been declared, Congress did vote to give the President authority to make war in the fight against terrorism. There were no limits placed on this authority. Without that or an offical declaration of war you could make the argument that the President had overstepped his authority, but with it there is not valid argument against the administration having this power.

Posted by: maddirishman at February 7, 2006 4:51 PM


With all due respect, now you're just making up stuff.

1. You say the Constitution "grants to the executive branch the duty of conducting wartime activities. Therefore, in a time of war a statue that limits the CinC's ability to conduct those operations is void." Huh? Here's what the Constitution actually says in Article II, Section ii:

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States"

That's it! Nothing about the "duty to conduct wartime activities," whatever the hell that means. And your "therefore" clause is nothing more than a directive by Chief Justice Maddirishman. Of what entity you're Chief Justice is unclear. Thank God it ain't the Supreme Court.

2. "While an offical war has not been declared, Congress did vote to give the President authority to make war in the fight against terrorism."

So first you're citing non-existent Constitutional text to support one point, then a moment later you're declaring that although we're not at war under the Constitutional definition, that doesn't matter because Congress gave the President a blank check to do whatever he wants, laws-be-damned? That's so patently ridiculous I won't even bother showing you that Congress did no such thing.

3. "There were no limits placed on this authority." Now you're just question-begging. As Crank said earlier, even acts of congress can be ruled unconstitutional. If Congress "grants" the president the "right" to do whatever he wants, the Court can and will declare it unconstitutional if . . . it violates the Constitution!

4. "with [Congress's supposed grant of unlimited dictatorial powers to the president] there is not valid argument against the administration having this power."

So sez Chief Justice Maddirishman, who is, thank God, not Chief Justice of the Supreme Court.

* * *

Maddirishman, just admit the truth: you, like many of us, are frightened of terrorism. I am too! But I choose to draw a line that gives liberty a little more weight on the scale vs. safety. You draw the line in a different spot. You don't want your line to fall into that penumbra between what is and what isn't constitutional, but if that's where it is, so be it. Safety first. That's fine if that's what you believe. No need to dress it up in pretty clothing.

Leave the tortured readings of the law and the Constitution to professional liars like the President and Gonzalez. They're better at it than normal folks like we are.

Posted by: Mike at February 7, 2006 5:16 PM

MadIrish - You can't really cite "no evidence" here, since this is a secret program.

Mike - I'm just fine with the fact that our government does some things we just don't need to know about. Electronic surveillance of the enemy is pretty close to the top of that list.

Also, I'm not sure it's fair to say they've admitted violating FISA; do you have a cite to a concession on that point? It seems to me that they've argued for implied repeal of FISA but refused to discuss operational details that would be needed to determine whether the program was even covered by FISA. But I admit that I'm behind in my reading on that portion of the controversy, so I may have missed something.

Posted by: The Crank at February 7, 2006 6:34 PM


Admittedly it was a constructive admission. I.e., admission of certain acts, which when laid out on the template of FISA show a violation. In other words, the Administration readily admitted it didn't choose to seek a warrant in all instances; yet FISA mandates the same. Nor has Gonzalez or anyone else laid out a cogniable claim that any of the exceptions were in play.

Posted by: Mike at February 8, 2006 6:51 AM
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