The Constitution Did Not Create A Monarchy

Redesigned and more aesthetically-pleasing alternative to Daily Kos Matt asks:

It seems, meanwhile, that beneath all the smokescreens what they're really trying to say is that they think FISA is unconstitutional, so they ought to be allowed to violate it. What I can't understand is why they won't just say so and see if they can get a court to agree. Are the legal arguments here so terrible that there's no chance even the new, Alito-ified court won't agree?

The answer is yes.

Well, to give a more detailed answers, there are two subquestions: 1)Is the argument that FISA is unconstitutional plausible? 2)Would the Court buy them? The first question is easy; the arguments that the President has plenary authority over all areas of foreign policy (including the warrantless surveillance of American citizens on American soil) is transparently wrong. Cass Sunstein recently explained the arguments made by John Yoo, who has attempted to defend the claim that the executive's war-making powers are beyond any Congressional regulation (apart from the power of the purse):

Yoo attributes the same position to Blackstone, according to whose view of the British Constitution "the monarch had no need to declare war before beginning hostilities against another nation." Yoo places a heavy emphasis on the English background. In his view, "the Framers would have looked to recent British political theory as much as to intellectual thought on the separation of powers." In England, the king had the sole power not only to control the armed forces but also to commit the nation to war. While Parliament controlled appropriations, the king had the power of initiative. In England, a formal declaration was not essential to the commencement of hostilities. Yoo believes that the Americans essentially borrowed the British framework.

I think you can see the obvious problem here. The assumption that the Constitution--developed in the aftermath against a monarchical state--simply meant to reinscribe the British conception of the executive is, to put it mildly, implausible. As Sunstein explains:

Yoo emphasizes Blackstone and British practice, arguing that the United States closely followed the British model, in which the executive--the king!--was able to make war on his own. But not so fast. There is specific evidence that the British model was rejected. Just three years after ratification Wilson wrote, with unambiguous disapproval, that "in England, the king has the sole prerogative of making war." Wilson contrasted the United States, where the power "of making war and peace" is in the legislature. Early presidents spoke in similar terms. Facing attacks from Indian tribes along the western frontier, George Washington, whose views on presidential power over war deserve special respect, observed: "The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject, and authorized such a measure." As president, both Thomas Jefferson and John Adams expressed similar views. In his influential Commentaries, written in 1826, James Kent wrote that "war cannot lawfully be commenced on the part of the United States, without an act of Congress."

With the exception only of James Wilson's, Yoo does not explore or even mention any of these statements--a puzzling omission, or worse. While Blackstone and English practice do seem to be on Yoo's side, Blackstone was of course speaking for the distinctive traditions of the British monarchy, and the practices of his country are not a reliable guide to the legal norms of the United States. With respect to Grotius and Vattel, Yoo's reading similarly raises many questions. Grotius wrote that "to exercise Hostility" without a declaration "is not done like a Christian, nor allowable by the Law of Nations." Grotius and Vattel are usually taken to support, not to undermine, the view that a declaration is a legal prerequisite for an offensive war.

Completely right, of course. The idea that the Constitution intended to create an executive whose ability to make war was entirely unreguable--despite the fact that the power to declare war was vested in Congress!--is just unserious. And, of course, there's an additional problem, which is that the "War in Terror" is not a war in any traditional sense, and in particular is almost entirely open-ended, which cuts against the grain of any grant of emergency powers to the executive that may permit rare instances in which it can simply defy the clearly expressed will of Congress.

But, admittedly, the fact that the arguments are extremely bad isn't a guarantee that the Court won't accept them; conservative jurists have, after all, shown some fondness for anachronistically monarchical constitutional doctrines (although the "sovereign immunity" line of cases isn't nearly as indefensible as Yoo's arguments about executive power.) Still,I don't think that an argument that FISA is unconstitutional has any real chance with the Supreme Court. Remember that a Yooian argument would put the (now very expansive) war-making powers of the presidency beyond an judicial review, as well as Congressional regulation. The courts tend to be reluctant to do this even if they're broadly sympathetic to the goals of the current executive. Even pessimistically assuming that Thomas could go along, and that Roberts and Alito are also potential votes, I think that's it the best they could possibly do. I don't think they have Scalia, and nor is there any discernible chance that Kennedy (let alone any of the Court's more liberal members) would go along with the claim that Article II was a straightforward reinscription of 18th century British doctrines about executive power. Maybe the Court is hackish enough to say that the Authorization to Use Military Force supersedes FISA in this instance (and, actually, Thomas/Alito/Roberts would be far, far more likely to make this argument than Yoo's argument.) But to embrace the argument that FISA is unconstitutional? I strongly doubt such a claim would get a single vote from the Supreme Court, and certainly I can't see more than 3 under any circumstances. So the unwillingness of the President's apologists to make this argument in court is quite rational.

...in a related note, I continue to become more and more attracted to the idea of a Russ Feingold candidacy.

...also see Pithlord in comments; I agree that, if anything, Sunstein is too generous to Yoo's argument. Even British constitutionalism did not have the kind of unchecked power Yoo would accord to the executive.