Friday, February 17, 2006

Richard Epstein

Richard Epstein is an unquestionably smart person whose ideas are nonetheless not considered sane, let alone sensible, in polite society. He is absolutely not a liberal. Robert Bork's endorsement of some of Epstein's loonier ideas helped scuttle his nomination to the Supreme Court. Context matters, because Brad DeLong posts a Wall Street Journal op-ed by Richard Epstein on the illegal domestic warrantless wiretapping:
I believe our first order of business should be to retool the Foreign Intelligence Surveillance Act (FISA) to meet the challenges of modern communications technology. Yet the key legal struggles over domestic spying go not to its wisdom, but to the thorny issue of whether the president has exceeded his constitutional powers in disregarding FISA. He has. The Constitution gives Congress the power to set policy; it gives to the president the right, and the duty, to execute it.

The president claims first that he has secured the needed congressional blessing for the NSA's domestic surveillance through the Authorization of Use of Military Force Act, passed in the aftermath of Sept. 11, 2001. Not so.... [T]he president can both hound al Qaeda and follow FISA requirements for domestic warrants. If he wants to go further, he should seek explicit congressional authorization.

The administration's more aggressive claim is that an "inherent commander in chief power" lets the president act on his own. To see why this claim fails, it is critical to set out -- they're short -- the precise provisions.... Congress has the explicit power "to make rules for the government and regulation of the land and naval forces."... Congress's power applies in both peace and wartime, and is subject to no express limitations on the nature and content of its general rules.

On the other side of the ledger, "[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the militia when called into actual service of the United States." Note the word "power" appears no where in this sentence. The operative verb is "shall be."...

Words matter. Only powers allow for a change in legal status of the persons over whom some power is directed. Thus the president's power to grant reprieves and pardons is rightly described as "plenary," precisely because Congress has no stated power to hedge it in by legislation, for example by declaring certain offenses unpardonable. The president's power to make treaties is likewise plenary, but now subject to the explicit check of Senatorial advice and consent. At no time, however, can Congress send its own delegation off to negotiate with Iraq.

So understood, subtly adding in some "inherent commander in chief power" upsets a carefully wrought constitutional balance.... [W]hy twist accurate constitutional language to make a shambles of our basic governance structure? Congress gets to set the general rules governing military efforts. The Constitution does not confer the identical power on the president....

The president's defenders insist that any gap in his power is filled because the Constitution provides that the president "shall take Care that the laws be faithfully executed." But this clause cuts in exactly the opposite direction. FISA is one law that the president must "take care" to enforce: He cannot choose to flout or ignore it.... Nor can the president obviate the need for legislation by making selective disclosures of his activities to certain members of Congress whom he then subjects to a vow of secrecy. Our constitutional structure of checks and balances is not subject to unilateral presidential circumvention by ad hoc procedures....

So who cares about these close textual and formal arguments? We all do, or should. The major danger with presidential surveillance does not lie in this particular overreaching of executive power. It's what comes next.... His defenders often claim that national defense is too important to be left to a wobbly Congress -- which on my view might prohibit the use of live ammunition in combat. And so it could. But political forces are always in play, and no legal institutions are simultaneously robust against all forms of incompetence.... Over the long haul, we'll do best by sticking to the original game plan on military matters rather than rewriting the Constitution to let the president alter the rules of the game. Under our Constitution, that power belongs to Congress. May it use the power wisely.
There is a debate to be had about the right way to go about surveilling people with possible links to al Qaeda. There may be a case to be made that the exigencies of a post-9/11 world require a rethinking of FISA. But no one has made that case. There hasn't been a debate about whether every wiretap involving a citizen or resident of this country must involve a warrant, or whether we want to create circumstances which don't involve warrants. I'd oppose that, and I think it violates the spirit of the 4th amendment. But we aren't having that debate yet, because we're still trying to convince the cult of Bush that any law could possibly constrain the President's whims.

The President simply arrogated himself the power to follow laws only when it was convenient. Such monarchal powers are explicitly refused to him by the Founding Fathers. John "undermine notions of democratic accountability" Yoo may be a wonderful person, as may Attorney General Alberto "Bind, Torture, Kill" Gonzales, but neither they nor the President are on a plane with Madison, Hamilton, Jay, Adams, Jefferson or any of the others who wrote the Constitution.

I can find common ground with Grover Norquist, Sam Brownback, Richard Epstein, Bob Barr, and a host of other conservatives on this because, we all agree that the Constitution is basically a good thing. We disagree on many things, even on many Constitutional matters (Epstein thinks all government regulations are "takings," I think that's ahistorical sophistry at best, anachronistic babbling at worst), but we agree that the Founders had some pretty good ideas, and that changes to the scheme they laid out ought to be carefully considered and debated, not simply imposed by fiat.

That's what a God-king does, not what a President does.