As published in the Jan. 8, 2006 issue of The Spokesman-Review.
Bush's spying order tests separation of power
Following is an installment of "Supreme Court Watch," a periodic column in which attorney and Whitworth University professor Julia Stronks analyzes legal questions facing the nation.
Julia K. Stronks J.D. Ph.D.
As a lawyer and a political scientist I am struck by the irony of President Bush's defense of the "domestic spying" case during the same period that the Senate will be examining Supreme Court nominee Samuel Alito's judicial philosophy. It's all about separation of powers. Let me explain.
When nominating Alito to the Supreme Court, President Bush made much of Alito's strict construction of the Constitution. Bush believes judges should interpret the law made by legislators. Judges should not make the law, nor should they construe the Constitution in ways that violate its foundational principles expressed by the framers - separation of powers, federalism, representation rather than direct democracy, and government limited by the will of the people.
I value this perspective on the job of judges because I agree with James Madison that concentrated power will be abused. The best way to protect against this abuse is to check it. Power must balance power; interest must balance interest (Federalist 10).
The National Security Agency's domestic spying plan, ordered by President Bush, presents an interesting test of our commitment to separation of powers. Many articulate this matter as one of civil liberty - we should not be spied on by our government. But in time of crisis civil liberties are often restricted. President Lincoln did it, as did President Roosevelt.
The key to our present controversy is not really civil liberties but rather separation of powers. May a president ignore Congress? And, if he does, how should he justify his action?
The debate is not really whether the spying should have occurred. The legal issue is the president's refusal to follow the process Congress laid out in the Foreign Intelligence Surveillance Act (FISA).
When domestic spying involves no U.S. citizens, no warrants are needed. But when a U.S. citizen is involved in the investigation, a warrant is required.
In the aftermath of Watergate, Congress wanted to be sure that Americans would be subject to surveillance only when sufficient cause could be demonstrated. But Congress also knew that in times of crisis the president needs special powers to conduct intelligence gathering.
The president argues that the Constitution gives the executive primary power in determining the country's steps in times of war. Arguably, parts of the FISA, like parts of the War Powers Act passed decades ago, violate the executive's constitutional power. Bush says he does not need warrants, even those required by Congress and provided by the special FISA court, to investigate U.S. citizens he suspects of terrorist activity.
The argument about the division of power between the president and Congress is an old one going back to Madison and Hamilton. Madison believed in a limited executive; Hamilton believed in a powerful executive.
The problem here is that Bush had so many choices, and he picked the one that was most dismissive of Congress and separation of powers. Bush could have said in 2001 that FISA is unconstitutional. Then we the people would be on notice of his lack of interest in separation of powers. He could have gone to Congress and said FISA has some problems - please fix it. He could have taken the route all presidents have taken with the War Powers Act and said long ago that it limits his Article II constitutional powers.
But Bush did none of these. Instead he secretly ordered a plan that violated FISA and slapped Congress in the face. And, at the same time, Bush made a great deal of his desire to have judicial nominees that pick strict constitutional interpretation and separation of powers over expedient political solutions.
Why did Bush do this? Does he think involving Congress or the special court would weaken the executive branch? If so, does he deny that Congress has a constitutional role in shaping domestic law during times of crisis? How can that possibly be squared with a strict construction of the Constitution?
The domestic spying issues are likely to come before the Supreme Court in the future. It will be interesting to see how strict constitutional interpretation plays out in a conflict between Congress and the president.
Note: The opinions expressed in works written by Whitworth faculty and staff do not necessarily represent the views of Whitworth University or members of its community. They are, however, symbolic of Whitworth’s commitment as a Christian college to the free exchange of ideas.