A hypothetical question
Suppose Bush is impeached for the alleged violation of FISA (the wiretapping issue). There are rumblings about rumblings that this would occur (although I doubt it, unless there is a seriou shift in the balance of power in Congress.) ...but let's say it happens.
There is little question that the administration's actions do not comply with FISA. I haven't seen anyone make the argument that they do comply, and I actually heard Karl Rove (in a spech to the Republican party) state pretty clearly that they did not. However, there is a legitimate Constitutional question with regard to whether Bush is subject to FISA. The treatment of prisoners during wartime is an exclusively executive function. Congress can't eliminate executive functions (although, according to the Youngstown decision cited in a previous post, Congress can place limitations on them.)
Were this hypothetical impeachment an ordinary criminal proceeding, the Constitutional issue would be raised in court. However, impeachments are handled in Congress, not a court.
If Bush were impeached and convicted, would he have the opportunity to appeal the Constitutional issue? Does the Supreme Court (or any court) have the ability to overturn an impeachment on Constitutional grounds (i.e., that there was no "high crime or misdemeanor," because the law that was violated was not a Constitutional restriction on executive power)?
posted by Steve72 @ 2:58 PM
22 comments
22 Comments:
Now that's a question!
no appeal.
see "'high crimes and misdemeanors': defining the constitutional limits on presidential impeachment"
especially 1523: "impeachable offenses are not limited to crimes."
http://www-rcf.usc.edu/~usclrev/pdf/072601.pdf
"there is a legitimate Constitutional question with regard to whether Bush is subject to FISA"
answered by the 2002 decision of the FISA appellate court, no?
"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
Thanks for the cite. I think you are correct that there is no appeal. There is a line of cases that describe "political" decisions which have been explicitly granted to another branch (in this case, the legislative). Such decisions are not susceptible to judicial review.
I think the decision to impeach and convict falls pretty clearly in that area.
As for the FISA question, and the quote, no, I do not think it has been decided for a few reasons:
(1) If you read that passage carefully, the court does not rule one way or the other whether the President has such plenary power. They are deciding the case on other grounds, and assume a fact which is unnecessary for the decision for purposes of argument.
(2) The ability to conduct warrantless wiretaps discussed in in re: Sealed Cases (which is the quoted case here) dealt with searches which complied with FISA. That is not the case here. It is more appropriate to cite Truong itself. However, Truong dealt with an individual who was an agent of a foreign government with regard to foreign intelligence information.
Truong did not define either term. "Foreign Power" has been legislatively defined by FISA. If you use the FISA definition, the searches do not work (al Quaeda is not a "foreign power" of the type that would authorize a warrantless search).
Additionally, Truong was decided when there was no explicit legislative act which defined the powers utilized. As discussed during the confirmation hearings, the fact that Congress has acted in an area places Executive powers at their "lowest ebb" (Youngstown, cited a couple posts ago). This can't eliminate an executive power, but it can restrict it severely.
I do agree that it is undecided (both by definition and pre-supreme court review fact).
my reaction was knee-jerk to the argument (by others) that Bush is without legal justification:
[John R. Schmidt, a Justice Department official in the Clinton administration] noted that the Foreign Intelligence Surveillance Court of Review, made up of three federal appeals court judges, addressed this issue in 2002 and said that it took for granted that the president had the inherent constitutional authority to conduct searches without warrants.
"It's utterly indefensible for people to say that there is no plausible legal justification when the only judicial statement on this is a flat statement that the president has this authority," Mr. Schmidt said.
you didn't suggest otherwise, sorry.
to your points (from a naive perspective):
1) that the FISA court took for granted the authority suggests the burden of proof on those who suggest he does not.
(I thought your "there is a legitimate Constitutional question" falsly gave equal weight to both arguments.)
2) I read "FISA could not encroach on the President's constitutional authority" to mean: if FISA infringed on the president's constitutional authority to order warrantless surveillance, it is FISA that would be unconstitutional.
I'm no lawyer (obviously), but since any impeachment procedings would be a matter of politics, not law, the definition of "foreign power" will be left to the public.
and I think most would prefer an elected president, subject to term limits, rather than an appointed-for-life anonymous judge, to define the term.
I don't think the finding of any court against Bush would shift opinion much.
I may be wrong...
I absolutely think the question is open. Anyone who is saying that it's clear one way or the other is either pushing their agenda, or doesn't understand the issue.
that the FISA court took for granted the authority suggests the burden of proof on those who suggest he does not.
Not necessarily. The court assumed that fact because it had not been questioned, and was not necessary for them to reach their conclusion. Courts often due this. They specifically did not rule on the question.
As for who has the "burden of proof", well, that's an interesting question. In general, legislative acts are given a presumption of Constitutionality. I am not sure whether the same rule applies to Executive acts. If it does, that could set up an interesting issue, since FISA would be presumed a Constitutional limit on electronic surveillance, but the President's act would also be presumed Constitutional...
My head's spinning. I've got another draft post coming. I'll insert my thoughts on this issue into it.
(I thought your "there is a legitimate Constitutional question" falsly gave equal weight to both arguments.)
I would dispute the word "falsely".
2) I read "FISA could not encroach on the President's constitutional authority" to mean: if FISA infringed on the president's constitutional authority to order warrantless surveillance, it is FISA that would be unconstitutional.
That's correct. However, the Youngstown decision pretty clearly tempers that argument. When the Legislature has specifically and explicitly acted in an area, it is difficult for the President to countermand that action (which is what Bush's Constitutional argument requires)
I'm no lawyer (obviously), but since any impeachment procedings would be a matter of politics, not law, the definition of "foreign power" will be left to the public.
and I think most would prefer an elected president, subject to term limits, rather than an appointed-for-life anonymous judge, to define the term.
Actually, if it is a political question (and I believe it is) neither the President nor the Court will have any role in defining that term. It's up to the legislature, and the legislature only.
"It's up to the legislature, and the legislature only."
I meant only that the legislature needs be responsive to public opinion (such that would' seriously shift the balance of power in Congress').
you are familiar with the arguments made here:
http://powerlineblog.com/archives/012975.php
?
I meant only that the legislature needs be responsive to public opinion (such that would' seriously shift the balance of power in Congress').
Then I guess I don't understand what youmeant be saying " I think most would prefer an elected president, subject to term limits, rather than an appointed-for-life anonymous judge" should define the term. Neither one has the option, and it's not up to the people to determine that.
...powerlineblog....
Yes, I read that blog, and he made a very good argument. However, the weakest point of his argument is the discussion of post-FISA law. As I described above, the only post-FISA case does not decide whether existing executive power supercedes FISA (or, if it does, to what extent it does). He also neglects to mention the impact of Youngstown on the issue.
"Neither one has the option, and it's not up to the people to determine that."
if it's political, as you agree it is, it is ultimately left to the public to determine. if they support impeachment, they'll shift the balance of power in Congress.
"the only post-FISA case does not decide whether existing executive power supercedes FISA (or, if it does, to what extent it does)."
?
powerline describes Sealed Case No 02-001 as the "post-FISA case that specifically addresses the question whether the passage of that statute could have changed the pre-existing principle that the President has constitutional power to order warrantless surveillance for foreign intelligence purposes."
does it not?
if it's political, as you agree it is, it is ultimately left to the public to determine. if they support impeachment, they'll shift the balance of power in Congress.
No, it's up to the legislature.
My comment was directed at your statement that the people would rather the President make the determination than a judge.
The people have no say in who makes the decision.
Not only that, but the people only get a say in the actual decision through thier representatives. If it happens, and it happens before Congressional elections, then they get no voice. if it happens after elections, then they get whatever voice is brought to bear in that election.
It's more than a stretch to say it is up to the people.
powerline describes Sealed Case No 02-001 as the "post-FISA case that specifically addresses the question whether the passage of that statute could have changed the pre-existing principle that the President has constitutional power to order warrantless surveillance for foreign intelligence purposes."
does it not?
It does not.
This is the case you quoted above in your second comment on this thread.
"It's more than a stretch to say it is up to the people."
funny how they bother with public opinion polls, huh?
"representatives" do represent.
"This is the case you quoted above in your second comment on this thread."
I'm just trying to clarify: you disagree with the powerline description of the case (as 'specifically addressing' v 'not ruling one way or another')?
or am I missing something?
funny how they bother with public opinion polls, huh?
"representatives" do represent.
Stop, you're killing me.
Like I said, to the extent the representatives express the will of the people, then the will of the people will be expressed.
That is not the same as saying "it's up to the people". That is a vast overstatement.
I'm just trying to clarify: you disagree with the powerline description of the case (as 'specifically addressing' v 'not ruling one way or another')?
or am I missing something?
I disagree that it specifically addressed the question that it is being used by you (and powerline) to support. It did not rule on any question regarding plenary executive powers.
"That is a vast overstatement."
no more so than: "If it happens, and it happens before Congressional elections, then they get no voice" is understated.
or do you doubt the Alito confirmation, for instance, wasn't influenced by public opinion?
"...to the extent the representatives express the will of the people, then the will of the people will be expressed."
on this we can agree, obviously.
"I disagree that it specifically addressed the question..."
clarified, thanks.
no more so than: "If it happens, and it happens before Congressional elections, then they get no voice" is understated.
I assume you meant overstated.
I'll concede that "no voice" is overstating the case, but it's much closer to the truth than the statement I disputed.
interesting arguments here:
"Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional."
http://www.morgancunningham.net/downloads/article_18.pdf
Interesting, although it doesn't really add much to the debate.
The Brown decision discussed on page 10 is helpful, but it still falls short of justifying domestic wiretaps.
I do agree strongly with the discussion in III B. I don't believe the President has a duty to follow a law he feels is Unconstitutional...so long as he is willing to abide by the repercussions if he is wrong.
Taba, is there a reason you are viewing this so myopically? The only thing clear about the issue here is that it's unclear...yet you have stated and re-stated every justification for the act, and either been unable or (I think more likely) simply refused to see the very real arguments on the other side.
It may very well be that these acts were appropriate. however, you appear to have reached that conclusion merely by the fact that the individual who authorized them wears an elephant on his lapel.
...Perhaps that was harsh. I apologize.
funny how those wearing donkeys on their lapels supported the authorization under a democratic president, no?
http://corner.nationalreview.com/06_01_29_corner-archive.asp#089315
http://corner.nationalreview.com/06_01_29_corner-archive.asp#089316
http://corner.nationalreview.com/06_01_29_corner-archive.asp#089313
does the argument they made then address your reservations?
or is it no more convincing than the republican argument made now?
I think the Donkeys are just as guilty of partisan hackery. That doesn't make Elephant partisan hackery any more justifiable, however.
As for the documents you linked, those go to the points raised in IIIB of the memo you linked earlier (which I stated I agreed with): The ability of the President to ignore or decline to enforce Unconstitutional statutes.
I don't think either of us disputes that...if the President felt the law was Unconstitutional, he has no duty to go to Congress to ask that it be changed.
The question is whether the law is Unconstitutional. Nothing you have posted changes that analysis...and it remains unclear.
The legal memo you posted a few days ago essentially boils down to the same analysis I posted several weeks ago (albeit much more rigorously written), then saying "thiese acts fall within the permissible powers." It would be just as easy to write a similar opinion and say that the acts fall outside the permisssible powers.
can you imagine the Senate Judiciary Committee making things clear? by way of new argument or interpretation? in a way convincing to otherwise-inclined partisans?
or will not their determination of the law's constitutionality be seen as (essentially) political?
No. I can't see the judiciary doing anything good with regard to expounding on the law. I think it's going to be a lot of posturing and posing on the left, and a lot of poo-pooing and praise on the right (Alito hearings part deux). It's why the Supreme Court is (supposedly) apolitical.
That was, in fact, one of the things I was thinking when I made the initial post. Regardless of what Congress does with regard to this issue, it's not going to resolve the Constitutional issue present. Congress's interpretation of its own powers (or those of the President) is not binding.
Not only will their determination be seen as poitical, but I don't think I'm going out on a limb to say it will be political (regardless of which way they decide).
you don't find this helpful?
Specter to Gonzales: "You think you're right, but a lot of people think you're wrong."
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