VII. The Separation of Powers
The Constitution of the United States provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . .” (43) It further provides that “[t]he executive Power shall be vested in a President of the United States of America.” (44) And that “…he shall take care that the laws be faithfully executed….” (45)
Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants. The concept that each form of governmental power should be separated was a well-developed one. James Madison wrote that:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. THE FEDERALIST NO. 47, at 301 (James Madison).
The seminal American case in this area, and one on which the government appears to rely, is that of Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) in which Justice Black, for the court, held that the Presidential order in question, to seize steel mills, was not within the constitutional powers of the chief executive. Justice Black wrote that:
The founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. Youngstown, 343 U.S. at 589.
Justice Jackson’s concurring opinion in that case has become historic. He wrote that, although the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers. Youngstown, 343 U.S. at 636-638. But “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any Constitutional powers of Congress over the matter.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
In that case, he wrote that it had been conceded that no congressional authorization existed for the Presidential seizure. Indeed, Congress had several times covered the area with statutory enactments inconsistent with the seizure. He further wrote of the President’s powers that:
The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated. Id. at 641.
After analyzing the more recent experiences of Weimar, Germany, the French Republic, and Great Britain, he wrote that:
This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the ‘inherent powers’ formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience. Id. at 652.
Justice Jackson concluded that:
With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Youngstown, 343 U.S. at 655 (Jackson, J., concurring).
Accordingly, Jackson concurred, the President had acted unlawfully.
In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.
In United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004) a prosecution in which production of enemy combatant witnesses had been refused by the government and the doctrine of Separation of Powers raised, the court, citing Mistretta v. United States, 488 U.S. 361 (1989), noted that it:
“[C]onsistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.” United States v. Moussaoui, 365 F.3d at 305 citing Mistretta v. United States, 488 U.S. 361, 380 (1989)
Finally, in the case of Clinton v. Jones, 520 U.S. 681 (1997), the separation of powers doctrine is again discussed and, again, some overlap of the authorities of two branches is permitted. In that case, although Article III jurisdiction of the federal courts is found intrusive and burdensome to the Chief Executive it did not follow, the court held, that separation of powers principles would be violated by allowing a lawsuit against the Chief Executive to proceed. Id. at 701. Mere burdensomeness or inconvenience did not rise to the level of superceding the doctrine of separation of powers. Id. at 703.
In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undisputedly, has violated the provisions of FISA for a five-year period. Justice Black wrote, in Youngstown:
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President.
In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who make laws which the President is to execute. The first section of the first article says that ‘All legislative powers herein granted shall be vested in a Congress of the United States **’
The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress – it directs that a presidential policy be executed in a manner prescribed by the President. . . . The Constitution did not subject this law-making power of Congress to presidential or military supervision or control. Youngstown, 343 U.S. at 587-588.
These secret authorization orders must, like the executive order in that case, fall. They violate the Separation of Powers ordained by the very Constitution of which this President is a creature.
