February 4, 2009
Holder on Inherent Presidential Authority
AG Eric Holder in his Senate confirmation materials endorsed a slightly more modest form of inherent presidential authority--and somewhat greater transparency when asserting that authority--than we've seen from the Bush administration. Holder also distinguished Bush administration practices from similar Clinton administration practices based upon claims of inherent executive authority.
Holder most clearly set out his positions in his Q&A with Senator Specter. In the first round (starting on page 18) Specter introduced the topic by asking Holder whether he agreed with Walter Dellinger's famous 1994 memo, which concluded that the President has authority to ignore a statute that unconstitutionally impinges or limits the President's Article II powers. Holder was quick to say that the President's power is at its lowest ebb (referring to Justice Jackson's framework in Youngstown) but that he nevertheless agreed with Dellinger's conclusions:
[T]he President's power is at its lowest ebb when he acts contrary to a statute duly enacted by Congress, but the Constitution is the supreme law of the land. There are circumstances where a President can refuse to comply with a statutory provision. These include a legislative veto, see INS v. Chadha, or a statute purporting to limit the President's removal power in certain circumstances, see Myers v. United States. Moreover, although as far as I know the Supreme Court has never ruled on the issue, I believe that a statute designating the Secretary of Defense (or another subordinate official in the Executive Branch) as the Commander in Chief would also be unconstitutional.
These are the easy cases, of course; harder are those cases without clear Supreme Court guidance. We therefore learn little from Holder's examples. But Holder's first sentence--that the President's authority is at its lowest ebb--is a telling move away from the sweeping claims of the Bush administration, from which we rarely and only grudgingly heard anything suggesting that the President's authority might have a low ebb. (Recall OLC's 2002 "torture memo" outlining broad inherent executive authority and famously neglecting even to mention Youngstown. That memo was later rescinded, but the rescission said nothing about the earlier claims of inherent executive authority.)
Holder was clear in his statement that the President lacks inherent executive authority to ignore a statute like FISA. Holder said that the early, pre-Protect America Act Bush administration surveillance program directly violated FISA, whereas the Clinton administration surveillance program (also based upon claims of inherent executive authority) was conducted in the absence of legislation. The former was not within the President's authority; the latter was. Holder:
Consistent with Judicial precedents, I do believe the President has authority, in the absence of a conflicting statute like FISA, to conduct warrantless foreign intelligence surveillance under certain conditions. As the Second Circuit explained in United States v. Duggan, "virtually every court that had addressed the issue had concluded that the President had the inherent power to collect foreign intelligence information, and that such surveillance constituted an exception to the warrant requirement of the Fourth Amendment." . . .
There is a critical difference between the President's authority to take certain actions in the absence of a statute, and his authority to take the same action in violation of a statute.
(Emphasis added.) And later he refused to fully endorse a 2000 opinion letter on Presidential authority to share Title III electronic surveillance material with the intelligence community. That letter included this language:
Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers." Rainbow Navigation, Inc. v. Department of the Navy (D.C. Cir. 1986) (Scalia, J.).
I do agree that a statute cannot impermissibly infringe the President's constitutional powers, including his authorities in the areas of national security and foreign relations. Statutes that attempt to restrict the President's ability to share critical national security information with his own intelligence agencies in extraordinary circumstances pose special concerns. At the same time, the President's powers are, as Justice Jackson explained, at their lowest ebb when he acts in a manner that conflicts with a congressional enactment.
On signing statements that announce the President's intention not to enforce a statutory provision, Holder said these should be "rare and a last resort." Holder:
Whenever the President determines that a statutory provision is unconstitutional, he should convey that determination to Congress in some manner. Transparency is imperative. The executive should work with the Congress well before bills reach the President's desk to resolve constitutional concerns. . . . When the President determines that an existing statutory provision is unconstitutional, he should work with Congress to enact any necessary legislative changes.
This is a dramatic change from Bush's frequent, vague, and cryptic signing statements.
Finally, in round 2 with Specter, Holder said that torture, including waterboarding, is not authorized under inherent Article II powers:
Torture is prohibited by statute, and the President's power is at its lowest ebb when he acts contrary to a statute. I cannot improve upon the answer given by then-Senator Obama, when asked by the Boston Globe whether the President has authority to instruct his subordinates to employ an interrogation technique that is prohibited by statute: "No. The President is not above the law, and not entitled to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions for all US Government personnel and contractors."
Holder's full Questions for the Record are here.
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