Justice Jackson, Walter Dellinger,
    and “extraordinary circumstances”

Yes, sometimes the President can Constitutionally act in contravention of express or implied Congressional intent, as for example by refusing to carry out an unconstitutional law. But for the President or order his subordinates to violate criminal statutes is a different matter entirely.

Two thoughtful readers challenge my assertion that the Alito nomination, coupled with the President’s ordering of warrantless wiretapping of U.S. persons in defiance of a law making such wiretapping a felony, constitutes an “extraordinary circumstance.”

One reader points me to Youngstown Sheet, the Korean War-era steel-mill seizure case, the other to Walter Dellinger’s memo about Bill Clinton’s justification in refusing to carry out Congressional enactments he deemed unconstitutional.

In a word, distinguo.

Youngstown Sheet involved a Presidential claim of inherent wartime powers: a claim the Court rejected as applied in that instance, though producing steel is arguably as clear an incident of warfare as gathering intelligence. As Justice Frankfurter said in his concurrence, “It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation.” It seems to me that the supporters of the President’s claimed authority in this case are contending precisely what Frankfurter said couldn’t be contended: they argue that, once we are at war, the President as Commander-in-Chief has inherent and uncheckable power to do anything necessary to prosecute that war.

Again quoting Justice Frankfurter:

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.

This, it seems to me, is on all fours with the FISA statute: Congress, having criminalized wiretapping generally except under court order, provided some limited exceptions in national-security cases. President Bush argues that he has inherent authority to expand those exceptions into realms which Congress had explicitly forbidden.

But my reader points to Justice Jackson’s concurrence:

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.

and glosses Alito’s comment as no more than a restatement of Justice Jackson’s analysis. That seems to me a generous reading (since my correspondent himself opposes Alito’s confirmation), but I don’t find it a convincing one. After all, GWB didn’t just “take measures incompatible with the expressed or implied will of Congress;” instead he ordered his subordinates to act in defiance of a criminal statute. To argue that the President may sometimes act against Congress’s intention is very different from arguing that the President may sometimes order the violation of criminal laws.

Update Anonyomous Liberal reviews all the opinions in Youngstown Sheet, reaching the same conclusion as above.

Another reader, identifying himself as a conservative, cites the Dellinger memo’s justification for Clinton’s refusal to carry out what he thought were unconstitutional mandates and asks, “Would you take the position that Dellinger, whose view here is both absolutely mainstream and widely held, would also, like Alito, pose an extraordinary circumstance as a nominee to the court?”

Again, it seems to me that action in defiance of criminal law is a different case from inaction in defiance of a Congressional mandate. Transparently, if the Congress were to pass a statute ordering the President to execute all the members of the Supreme Court forthwith, the President ought not to carry out that order. But if the President can do something the statutes criminalize — in this case secretly — then his power is limited only by his own judgment, not by the law. That’s the claim that seems to me extraordinary.

Footnote One element of the Dellinger memo does seem to me completely over the top: the claim that a President may properly sign a law he deems unconstitutional, and then proceed to ignore that law due to its unconstitutionality. The President is sworn to uphold the Constitution; I can’t square that commitment with the act of signing a law the President believes to contravene the Constitution.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com