Monday, February 13, 2006

 

Day 58 and Counting

What are the "Inherent" Powers of the President? How the Bush Administration Has Mistaken Default Rules for Exclusive Rights By MICHAEL C. DORF in FindLaw Legal News on Monday, Feb. 13, 2006.

Another good analysis of the grounds for Impeachment, this article concentrates on the false argument that the President has exclusive powers as Commander-In-Chief that make FISA unconstitutional.
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.
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[I]nherent Presidential authority to prescribe discipline for the armed forces is only a default setting. It can be changed by Congress. How do we know that? Because the Constitution expressly grants to Congress the power "[t]o make Rules for the Government and Regulation of the land and naval Forces." This Congressional power would not be worth the parchment it's written on, were the President able to flout any and all rules and regulations Congress enacted.
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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.





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