Tapped Out


Conservative pundit Mona Charen is on On Point talking an impressive amount of nonsense about the NSA wiretap program (which we're now told we must question-beggingly refer to as the "terrorist surveillance program").

She opens with a familiar the-other-side-is-Bush-Deranged line, conceding that "reasonable people can disagree" about whether the president overstepped his bounds in authorizing the program, but that suggestion that a crime (or, heaven forfend, impeachable offense) has been committed is loony and beyond the pale. But if the president doesn't have some independent legal basis, superceding FISA, to conduct such surveillance, then FISA itself pretty clearly stipulates that such surveillance is a crime. There's not some squishy, "reasonable" middle ground here where wiretaps were unlawful but not criminal.

Second, she's acting on a kind of dualist understanding of presidential power that's seemed implicit in a fair amount of commentary on the wiretap program: Either the president has no inherent constitutional authority that might have allowed him to authorize taps under any circumstances, or he has, in which case FISA is unconstitutional to the extent it limits those powers. But that picture ignores the framework laid out in Justice Jackson's concurrence in the Youngstown Steel case:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate…. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain…. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

Now, insofar as the administration is relying on the president's Article II powers as commander-in-chief of American military forces, it's pretty clear that this is one of those zones of overlap or "concurrent authority," for among the enumerated powers of Congress is the power "To make Rules for the Government and Regulation of the land and naval Forces," which are the same forces to which the president's "commander-in-chief" authority explicitly applies. If you include intelligence agencies in that category (fair enough), you've got to do it for both branches. So it might well be that the president has the power to improvise, as it were, when Congress has not laid down rules. But that doesn't mean that the president cannot then be limited by rules Congress has laid down, that his inherent authority somehow squeezes out all congressional authority.