President’s Eavesdropping Order Violates Constitution
by: Michael Anthony Lawrence
Discussions surrounding the still-bubbling controversy about the President’s post-9/11 decision to allow secret domestic eavesdropping on American citizens – including last Friday’s report from the non-partisan Congressional Research Service stating that Bush's decision was not “well grounded” in the law - brings to mind a comment made by Chief Justice John Roberts during his confirmation hearings last September. Asked if he adhered to a view of the Court as Congress’s taskmaster, then-nominee Roberts responded, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.”
Justice Roberts’ comment nicely captures the axiomatic essence of the political theory underlying this Nation’s system of government (and one that clearly escapes the President and his handlers): It is the Constitution – not Congress, not the Executive, not even the Judiciary – that establishes the baseline conduct to which government must faithfully adhere. It is the Constitution, in other words, that is sovereign; and nothing any official in any branch of government tries to say (current Presidential hubris notwithstanding) can change the underlying core proposition that government, in the conduct of its official duties, simply may not ignore basic constitutional guarantees - here, of individual liberty and freedom from unreasonable governmental intrusion – not even during times of national emergency.
Think of it like this: if your neighbor tried to give away your house, you’d be legally justified to prevent this from occurring – the house simply is not the neighbor’s to give away. Similarly, constitutional protections of individual liberties simply are not the President’s or Congress’s – or the Court’s - to give away.
True enough, there are limited circumstances where the President and Congress may regulate (but not remove outright) an individual’s constitutionally-protected liberties, but only when the government meets a heavy burden of showing its action both is no more intrusive than necessary and is pursuant to an extremely strong government interest.
In the current eavesdropping context, Congress recognized that the Constitution would prohibit highly discretionary governmental eavesdropping, and so required in the Foreign Intelligence Surveillance Act of 1978 (FISA) that the government obtain search warrants from a special secret court before conducting electronic surveillance of people suspected to be terrorists or spies.
By authorizing warrantless eavesdropping and ignoring FISA, President Bush exceeded his constitutional power. As Justice Jackson put it in a case fifty years ago striking down President Truman’s government seizure of private steel mills during the Korean War, “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.…”; whereas, “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.” Here, Bush operated in a way incompatible with the expressed will of Congress, and his power was at its lowest ebb.
But the larger point is that even if Congress did somehow implicitly authorize warrantless searches in the wake of 9/11, as the President claims (and the nuances of this “he said, she said” dispute will surely be a large issue in the promised hearings questioning Attorney General Alberto Gonzales and others before the Senate Judiciary Committee early next month), this just means that Congress, in collaboration with the President, has acted unconstitutionally. It is one thing to say that government may impose limitations on individual liberties if it meets the substantial burdens required in a warrant; it is another, however, to grant the Executive unfettered discretion to spy on citizens free of any judicial oversight whatsoever. Moreover, it is no more acceptable for two branches of government acting in cooperation to violate the Constitution than it would be for one to do so acting alone.
In short, the Constitution is a taskmaster – and it is a stern taskmaster indeed. If we’ve learned anything from 217 years of experience with this Constitution, it’s that government frequently overreaches, and the Constitution steps in to bring the government back into line. So it shall be here as well. Any other result, allowing expansion of an all-powerful government at the expense of individual liberty, plays directly into the hands of the terrorists, and would itself amount to a victory for them.
