Arlen Specter Displays His Near Total Ignorance of Basic Constitutional Law

(updated)

Senator Arlen Specter has penned an op-ed in Monday's Washington Post defending the "compromise" surveillance bill that he announced last week. Assuming the piece reflects Specter's genuine views on this subject, I think I finally understand how the White House got him to sign on to a bill that essentially repeals FISA. It's simple, Specter has no understanding of basic constitutional law.

In the op-ed, Specter writes:

Critics complain that the bill acknowledges the president's
inherent Article II power and does not insist on FISA's being
the exclusive procedure for the authorization of wiretapping.
They are wrong. The president's constitutional power either
exists or does not exist, no matter what any statute may say.
If the appellate court precedents cited above are correct, FISA
is not the exclusive procedure. If the president's assertion of
inherent executive authority meets the Fourth Amendment's
"reasonableness" test, it provides an alternative legal basis
for surveillance, however FISA may purport to limit
presidential power. The bill does not accede to the president's
claims of inherent presidential power; that is for the courts
either to affirm or reject. It merely acknowledges them, to
whatever extent they may exist.

Good lord. Can someone please get Senator Specter a copy of Youngstown? As Marty Lederman puts it:

[T]his is utter malarkey. Whether the President has the
"inherent" authority to engage in such surveillance . . . tells
us absolutely nothing about whether a statute can
constitutionally limit that authority, as FISA does. To be or not
to be -- whether "the president's constitutional power exists or
does not exist" -- is not the question. This basic
misunderstanding of modern separation-of-powers doctrine,
and of Youngstown and Hamdan, continues to trip up Specter.
(Where's his staff? Haven't they shown him footnote 23 of
Hamdan?)

Seriously, if Specter had written the above-quoted paragraph on a constitutional law exam, his professor would have flunked him. His description of the interplay between statutes and the president's article II authority runs contrary to the long-established Youngstown framework, which--as the Court's various opinions in Hamdan demonstrate--all nine of the current Supreme Court justices accept as controlling.

As Specter should know, there is a world of difference between what a president has the power to do in the absence of a statute and what he has the power to do in the face of a statutory prohibition. That's constitutional law 101.

Much has been made of Specter's willingness to legislate in the dark. He has, after all, agreed to sponsor legislation legalizing a program about which he has not even been briefed. But far more disturbing to me is his apparent inability to get his head around a basic principle of constitutional law. As I noted last week, the very wording and structure of his bill--like his op-ed--reflects a fundamental misconception of presidential authority. And there's really no excuse for that. Someone on Specter's staff really does need to sit him down and force him to read Youngstown. Or if he doesn't have time, footnote 23 of the Hamdan decision will suffice:

Whether or not the President has independent power, absent
congressional authorization, to convene military commissions,
he may not disregard limitations that Congress has, in proper
exercise of its own war powers, placed on his powers.

Senator Specter, please pay special attention to the phrase "whether or not." That's the key. It doesn't matter whether the pre-FISA cases you cite in your op-ed held that the president has inherent authority to conduct warrantless surveillance. A duly enacted statute, like FISA, may nevertheless place enforceable limits on the president's authority. This is not controversial.

Now I suppose it's possible that Sen. Specter already knows all this and is intentionally misleading people in order to build support for his bill. I certainly wouldn't put it past him. But I've been following this issue pretty closely, and my impression, for what it's worth, is that Specter is genuinely confused. That would explain why he thought he had negotiated something of value and why he seems to have been caught off guard by the harsh criticism his bill has received. I think Specter just doesn't get it. He doesn't understand that by replacing FISA's exclusivity clause with an explicit acknowledgement of the president's article II authority, FISA itself is rendered totally worthless.

UPDATE: Specter's op-ed was so bone-headed that the Washington Post editorial board felt the need to correct the record. In an editorial today (h/t Steve Benen), the Post writes:

In an op-ed in these pages Monday, Mr. Specter described
his proposal as a compromise with President Bush to ensure
judicial review of the NSA program, which he called "a
festering sore on our body politic." Yet his legislation would
essentially respond to this festering sore by shooting the
patient.

No matter how adamantly Mr. Specter denies that his bill
would give Congress's blessing to domestic spying outside of
FISA's strictures, it does so explicitly and unambiguously. . . .

Mr. Specter argues that the bill doesn't accept the president's
assertions of unilateral power but merely acknowledges them.
But this is incorrect.

Under the Supreme Court's decades-old understanding,
presidential power is at its lowest ebb when the president is
acting contrary to the will of Congress, and at its zenith when
he is using his own powers in concert with legislative
authorization. Right now, to conduct warrantless surveillance
domestically Mr. Bush must act at the very least in sharp
tension with FISA. Under Mr. Specter's bill, however, the
legislature would be explicitly acknowledging an alternative
source of authority for snooping. It would thereby legitimize
not only whatever the NSA may now be doing but lots of
other surveillance it might dream up.