Putting to Rest the Administration's "Inherent Authority" Argument

I'm not sure how I missed this when it came out a few weeks ago, but Professor Michael Dorf of Columbia Law School (who, incidentally, taught me most of what I know about constitutional law) published an excellent column on the meaning of the phrase "inherent authority" and how it is being misused by the Bush Administration and its defenders. Dorf has a real talent for explaining principles of constitutional law in a non-legalistic way, and this column is no exception. Dorf begins by noting that in defense of both its torture and surveillance practices, the Bush administration has asserted that Congress lacks the power to infringe on the president's "inherent authority." He writes:

Common to both of these assertions is the
notion that the President has certain inherent
powers that Congress may not limit. That
notion is true--as far as it goes. There are
some powers of the President that cannot be
limited by Congress.

But not every action that the President would
be permitted to take on his own is therefore his
to take in the teeth of a Congressional
prohibition. We can, and should, distinguish
between those inherent Presidential powers that
are mere default powers--exercisable by the
President even without Congressional
authorization but nonetheless subject to
Congressional override--and those inherent
Presidential powers that are exclusive powers--
unregulable by Congress. The arguments of the
Administration and its defenders conflate
these very different concepts. . . .

In advancing the argument that Congress may
not limit the President's powers as
Commander in Chief, the Administration and
its defenders draw a false analogy to bona fide
exclusive Presidential powers like the pardon
power and the power to demand written
advice from Cabinet officials.

For with respect to war, the Constitution
assigns to Congress numerous powers that
operate concurrently with the President's
powers. . . .

The Administration claims that the President
has inherent authority to order wartime
warrantless surveillance of American citizens
as Commander in Chief.

That claim is probably correct, although the
Supreme Court has never squarely rejected
the argument that such surveillance violates
the Fourth Amendment.

But even if we put aside any Fourth
Amendment objection, there is a world of
difference between warrantless surveillance
conducted on the President's own authority,
and such surveillance conducted in violation
of a Congressional prohibition such as FISA.

For if the President's default power to order
warrantless surveillance stems from his
inherent default authority as Commander in
Chief of the armed forces, then surely the
specific authority of Congress, expressly
granted by the Constitution, to prescribe
rules and regulations of those same forces
can change the default.

(To be sure, one might object that the
Congressional power to write rules and
regulations for the armed forces does not
apply to the NSA, because the NSA is a
civilian rather than a military agency. But if
so, then the President likewise lacks
authority over the NSA as Commander in
Chief. And in any event, Congressional
power to create the NSA in the first place
surely includes the subsidiary power to write
rules constraining the agency. If not, then
nearly all of modern administrative law is
unconstitutional.)

Accordingly, whatever power the President
has to order wartime warrantless surveillance
of Americans can, constitutionally, be limited by
Congress. It is a default power, not an
exclusive power. . . .

Dorf ends his column with the following:

Ultimately, the flaw in the Bush
Administration's repeated conflation of default
Presidential powers with exclusive powers is
not that it contradicts my analysis, or even that
it contradicts Justice Jackson's. The problem is
that it makes a mockery of much of the
Constitution the President has sworn to uphold.

Amen. I've been making this same argument for months now, but never quite as clearly as Dorf does here (and by the way, the rest of the column is worth reading too). Next time you hear one of the administration's defenders throw around the phrase "inherent authority" or "inherent powers," keep this column in mind. In almost every instance, Bush's defenders conflate the concepts of exclusive and default authority. While there is some case law supporting the notion that the president has the default power to conduct warrantless surveillance (i.e. the power to act in the absence of a statute on point), there is no case law whatsoever supporting the claim that the president has exclusive authority in this regard. Nor, for that matter, is there any language in the Constitution or even any logical argument that supports that assertion. The administration's "inherent authority" argument is, quite simply, totally bereft of substance. It's a slogan, not a coherent legal position.