More Journamalism from the New York Times
Covering the Economy: February 14: Readings: Ben Bernanke and the Fed

Grownup Republican Watch: Richard Epstein

Richard Epstein appears--on FISA at least--to be a grownup Republican. Welcome: - Executive Power on Steroids : I believe our first order of business should be to retool the Foreign Intelligence Surveillance Act (FISA) to meet the challenges of modern communications technology. Yet the key legal struggles over domestic spying go not to its wisdom, but to the thorny issue of whether the president has exceeded his constitutional powers in disregarding FISA. He has. The Constitution gives Congress the power to set policy; it gives to the president the right, and the duty, to execute it.

The president claims first that he has secured the needed congressional blessing for the NSA's domestic surveillance through the Authorization of Use of Military Force Act, passed in the aftermath of Sept. 11, 2001. Not so.... [T]he president can both hound al Qaeda and follow FISA requirements for domestic warrants. If he wants to go further, he should seek explicit congressional authorization.

The administration's more aggressive claim is that an "inherent commander in chief power" lets the president act on his own. To see why this claim fails, it is critical to set out -- they're short -- the precise provisions.... Congress has the explicit power "to make rules for the government and regulation of the land and naval forces."... Congress's power applies in both peace and wartime, and is subject to no express limitations on the nature and content of its general rules.

On the other side of the ledger, "[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the militia when called into actual service of the United States." Note the word "power" appears no where in this sentence. The operative verb is "shall be."...

Words matter. Only powers allow for a change in legal status of the persons over whom some power is directed. Thus the president's power to grant reprieves and pardons is rightly described as "plenary," precisely because Congress has no stated power to hedge it in by legislation, for example by declaring certain offenses unpardonable. The president's power to make treaties is likewise plenary, but now subject to the explicit check of Senatorial advice and consent. At no time, however, can Congress send its own delegation off to negotiate with Iraq.

So understood, subtly adding in some "inherent commander in chief power" upsets a carefully wrought constitutional balance.... [W]hy twist accurate constitutional language to make a shambles of our basic governance structure? Congress gets to set the general rules governing military efforts. The Constitution does not confer the identical power on the president....

The president's defenders insist that any gap in his power is filled because the Constitution provides that the president "shall take Care that the laws be faithfully executed." But this clause cuts in exactly the opposite direction. FISA is one law that the president must "take care" to enforce: He cannot choose to flout or ignore it.... Nor can the president obviate the need for legislation by making selective disclosures of his activities to certain members of Congress whom he then subjects to a vow of secrecy. Our constitutional structure of checks and balances is not subject to unilateral presidential circumvention by ad hoc procedures....

So who cares about these close textual and formal arguments? We all do, or should. The major danger with presidential surveillance does not lie in this particular overreaching of executive power. It's what comes next.... His defenders often claim that national defense is too important to be left to a wobbly Congress -- which on my view might prohibit the use of live ammunition in combat. And so it could. But political forces are always in play, and no legal institutions are simultaneously robust against all forms of incompetence.... Over the long haul, we'll do best by sticking to the original game plan on military matters rather than rewriting the Constitution to let the president alter the rules of the game. Under our Constitution, that power belongs to Congress. May it use the power wisely.