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Constitutional Interpretation

Statement by Louis Fisher, appearing before the House Committee on the Budget, “Line-Item Veto — Constitutional Issues” (PDF, 236KB), June 8, 2006. It is possible to write legislation giving the President a form of item-veto authority that satisfies the standards set forth in Clinton v. City of New York (1998). However, Members of Congress have an independent and non-delegable obligation to protect their institutional rights, duties, and prestige. The item-veto proposal before the committee damages the prerogatives of Congress by signaling to the public that lawmakers cannot properly conduct their constitutional duties over federal spending. Moreover, no evidence supports the view that that the President is more responsible on fiscal affairs, either on aggregate amounts or particular projects.

Louis Fisher, “Interpreting the Constitution: More than What the Supreme Court Says” (PDF, 108KB), Extensions, Fall 2008. In a democratic society, questions of constitutional law require a political dialogue that involves all three branches of the national government, all fifty states, and the general public. If the meaning of the Constitution depended solely on unelected judges, popular sovereignty would be undermined and replaced by judicial, hyper-technical interpretations increasingly alien to the public. There is no historical support for the view that judges are better positioned to safeguard minority and individual rights. Mutual respect among the branches and between the branches and the public provide continuing legitimacy and life to the Constitution.

Executive Privilege

Louis Fisher, "Congressional Access to National Security Information" (PDF, 73KB), 45 Harv. J. on Legis. 219 (2008). When invoking executive privilege, administrations often claim that their justification for withholding documents or testimony from Congress is particularly strong when the subject is national security. This article argues that such a claim mischaracterizes the President's constitutional role and fails to acknowledge the independent institutional needs of Congress to have access to national security information to fulfill the constitutional duties of enacting legislation, conducting oversight, and protecting the system of checks and balances. Also, judicial access to national security information has increased dramatically in the last half century to enforce the separation of powers and vindicate individual rights.

Book: Louis Fisher, The Politics of Executive Privilege (Durham: Carolina Academic Press, 2004), 272 pp.  Presidents and their advisers cite various legal principles when they withhold documents from Congress and refuse to allow executive officials to testify before congressional committees. Congress can marshal its own impressive list of legal citations to defend legislative access to information, even when Presidents assert executive privilege. These legal and constitutional principles, finely-honed as they might be, are often overridden by the politics of the moment and practical considerations. Efforts to discover enduring and enforceable norms in this area invariably fall short.

This book (individual chapters attached) explains the political settlements that decide most information disputes. Courts play a role, but it is a misconception to believe that handy cites from judicial opinions will win the day. Efforts to resolve interbranch disputes on purely legal grounds may have to give ground in the face of superior political muscle by a Congress determined to exercise the many coercive tools available to it. By the same token, a Congress that is internally divided or uncertain about its institutional powers, or unwilling to grind it out until the documents are delivered, will lose out in the quest for information. Moreover, both branches are at the mercy of political developments that can come around the corner without warning and tilt the advantage decisively to one side.

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War Powers

Louis Fisher, "Scholarly Support for Presidential Wars" (PDF, 68KB), 35 Pres. Stud. Q. (2005). For the past half-century, political scientists, law professors, and historians have promoted a greatly strengthened presidency, including the authority to take the country to war without a declaration or authorization from Congress. In justifying this shift of power, scholars have given little thought to legal boundaries and constitutional principles, including checks and balances and the system of separated powers. Students in high school, college, and law schools need a more balanced and constitutional instruction on the presidency. Those who speak to the public have a duty to explain (and understand) basic principles and the rule of law.

"Presidential Power in National Security: A Guide to the President-Elect" (PDF, 500KB), by Louis Fisher, included among papers prepared for the White House Transition Project, 2008. Over the last half century. Presidents have read their national security powers in sweeping terms, doing great damage to themselves, their parties, the nation, and regions around the world. The effective use of military force and foreign policy initiatives require the building of consensus, public understanding, and acting within the law. Too often, Presidents have claimed the unilateral power to commit the nation to war by making uninformed references to the Commander in Chief Clause. Heavy political and constitutional costs flow from the failure to adhere to the rule of law, checks and balances, and the system of separation of powers.

Louis Fisher, "To War or Not to War: That is Still the Question for Congress, not the President" (PDF, 94KB), Legal Times, March 10, 2008, pp. 44-45. During the 2008 presidential campaign, candidates spoke deferentially about popular control. They said the election was not about them but about the voters, and that change had to come from the bottom rather than the top. Yet when the subject was the President's power as commander in chief, they switched course and spoke about their unilateral powers to act and to decide on military commitments. The record is clear that the framers placed in Congress (the people's representatives) the decision to send the nation to war and deliberately rejected the available monarchical models that vested all powers of war and foreign relations in the Executive.

Louis Fisher, "Domestic Commander in Chief: Early Checks by Other Branches" (PDF, 235KB), 29 Cardozo L. Rev. 961 (2008).  This article looks to the early years of the republic to understand the scope, purpose, and boundaries of the Commander in Chief Clause.  The framers viewed the Clause within the context of republican government where ultimate power is placed not in a single executive but with the people and their elected representatives.  Covered within this article is the distinction between offensive and defensive wars, military actions against Indians, the militia act of 1792, the Neutrality Proclamation of 1793, the Whiskey Rebellion of 1794, the Alien and Sedition Acts of 1798, and judicial rulings from 1800 to 1806.

Statement by Louis Fisher, appearing before the Senate Committee on the Judiciary, "Exercising Congress's Constitutional Power to End a War" (PDF, 99KB), January 30, 2007.  This testimony explains the democratic principles that guided the framers, the rejection of monarchical power, the distinction between offensive and defensive wars, separation of purse and sword, the scope of the Commander in Chief Clause, the Constitution in practice, and contemporary statutory restrictions, including the cutoff of funds in 1973 to end the Vietnam War, prohibitions on CIA paramilitary activities in Angola, limitations imposed on assistance to the Contras in Nicaragua leading to the Iran-Contra scandal in 1987, authority for the Gulf War of 1991, and statutory requirements to withdraw U.S. troops from Somalia by March 31, 1994.

Louis Fisher, "Lost Constitutional Moorings: Recovering the War Power" (PDF, 430KB), 81 Ind. L. Rev. 1199 (2006).

For the past half century. Presidents have claimed constitutional authority to take the country from a state of peace to a state of war against another nation. That was precisely the power that the Framers denied to the President and vested exclusively in Congress. That allocation of power was understood by all three branches until President Harry Truman went to war against North Korea in 1950. He never came to Congress for authority before he acted or any time thereafter. The persistence of unilateral presidential wars does severe damage to the U.S. constitutional system, separation of powers, checks and balances, and the principle of self-government.

Louis Fisher, "Deciding on War Against Iraq: Institutional Failures" (PDF, 1.48MB), 118 Pol. Sci. Q. 389 (2003).  This article analyses the performance of U.S. political institutions in authorizing the war against Iraq in October 2002.  It concludes that the Bush administration failed to provide reliable information to Congress to justify the war and relied on tenuous, unsubstantiated claims that were regularly discredited.  The article also concludes that Congress failed in its institutional duties, both by voting on the Iraq Resolution without sufficient evidence and by drafting the legislation in such a way that it left the power to initiate war in the hands of the President, exactly what the framers had tried to prevent.

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War Powers Resolution

Louis Fisher, “The Baker-Christopher War Powers Commission” (PDF, 82KB), 39 Pres. Stud. Q. 128 (2009). In July 2008, the National War Powers Commission recommended the repeal of the War Powers Resolution and its replacement with the War Powers Consultation Act. Co-chaired by former Secretaries of State James A. Baker III and Warren Christopher, the commission report promised “equal respect” to the legislative and executive branches. In fact, it greatly strengthens the President’s capacity to initiate war and weakens congressional and public control. Instead of addressing the framers’ fear of placing the war power in the hands of a single executive, the report claims that the U.S. Constitution is “ambiguous” about war powers and that federal courts “for the most part” have declined jurisdiction over war powers cases. Both assertions are false.

Louis Fisher, "When the Shooting Starts" (PDF, 117KB), Legal Times, July 28, 2008, p. 44. The Baker-Christopher commission recommends that Congress pass legislation guided by the principles of the rule of law and equal respect for all three branches. The proposed statute would require Congress to vote on a non-binding resolution of approval for any significant use of military force. If that failed, any lawmaker could require Congress to vote on a joint resolution of disapproval, which would be subject to a presidential veto. The article concludes that the mechanism would weaken the legislative branch, play to executive strengths, and undercut popular government and the rule of law.

Statement by Louis Fisher, appearing before the House Foreign Affairs Committee, "War Powers for the 21st Century: The Constitutional Perspective" (PDF, 48KB), April 10, 2008. This testimony analyzes the pending bill, H. J. Res. 43, and generally holds that it succeeds in correcting serious deficiencies with the War Powers Resolution (WPR) of 1973. The pending bill is designed to safeguard and reinforce the constitutional system, representative government, and democratic values, whereas the WPR failed in its announced purpose to "fulfill the intent of the framers" and ensure "collective judgment" of the legislative and executive branches. Fisher's testimony raises caveats about language in H. J. Res. 53 regarding military actions pursuant to resolutions passed by the UN Security Council, creation of a consultative committee, and congressional reliance on judicial review.

Louis Fisher, "Thomas F. Eagleton: A Model of Integrity" (PDF, 64KB), 52 St. Louis U. L. J. 97 (2007).  This article describes the leadership of Senator Eagleton from 1971 to 1973 with the War Powers Resolution.  He backed a bill that tracked closely the intentions of the framers, permitting unilateral presidential action only in selected areas (e.g, repelling sudden attacks).  The House passed legislation placing no such restrictions but relying on presidential reporting.  The bill that emerged from conference committee so favored presidential power, in Eagleton's view, that he opposed it and spoke strongly for constitutional principles and legislative prerogatives.  Senator Eagleton "had taken an oath to support and defend the Constitution and that dedication provided all the lodestar he ever needed."

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Presidential Inherent Powers

Statement by Louis Fisher presented to the Senate Committee on the Judiciary for hearings on "Restoring the Rule of Law" (PDf, 67KB) September 16, 2008. In previous periods of emergency and threats to national security, the rule of law has often taken a backseat to presidential initiatives and abuses. This statement explains some basic steps for returning to the rule of law and constitutional government, including the hazards of state secrets, secret law, signing statements, misuse of executive privilege, and dependence on the illusory claim of "inherent" powers and the false "sole organ" doctrine. The rule of law is always at risk when Congress and the judiciary defer to claims and assertions by executive authorities and fail to protect the system of checks and balances.

Louis Fisher, "Extraordinary Rendition: The Price of Secrecy" (PDF, 319KB), 57 Am. U. L. Rev. 1405 (2008). Assertions of inherent power after 9/11 led to the practice of "extraordinary rendition," claiming that the President possesses independent and plenary authority to seize individuals and transfer them to other countries for interrogation and torture. This article analyzes the source of authority for extradition, rendition, forcible abduction, and extraordinary rendition. For all categories except the latter, the individual is taken to a country for trial and given access to regular procedural safeguards. The article concludes by examining recent litigation on extraordinary rendition.

Louis Fisher, "Treaty Negotiation: A Presidential Monopoly?" (PDF, 95KB), 38 Pres. Stud. Q. 144 (2008).  This article examines the claim by Justice George Sutherland in United States v. Curtiss-Wright (1936) that the President makes treaties with the advice and consent of the Senate "but he alone negotiates.  Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it."  This statement was dicta  and extraneous to the issue before the Court, but it is also at odds with Senate history and Sutherland's own experience as a U.S. Senator from Utah.  Senators (and Representatives) have often been involved in the negotiation of treaties.

Statement by Louis Fisher, appearing before the House Committee on the Judiciary, "Constitutional Limitations on Domestic Surveillance" (PDF, 111KB), June 7, 2007. This testimony reviews what happened in the 1960s and 1970s with regard to domestic surveillance by the executive branch, leading to federal courts rejecting the theory that the President has "inherent" constitutional authority to engaged in warrantless domestic surveillance. House and Senate hearings prepared the way for enactment of the Foreign Intelligence Surveillance Act (FISA) of 1978. The balance of the testimony analyzes the legal defense by the Bush administration for the Terrorist Surveillance Program (TSP) conducted after 9/11, including statutory and constitutional justifications and briefings to the "Gang of Eight."

Louis Fisher, "Signing Statements: Constitutional and Practical Limits" (PDF, 179KB), 16 William & Mary Bill of Rights J. 183 (2007). May a President, through a signing statement, nullify or dilute a bill that both houses of Congress had just passed and presented to him? Does that assertion of authority give him, in effect, an item veto? What happens to the President's constitutional obligation to "take Care that the Laws be faithfully executed"? If signing statements replace Congress-made law with Executive-made law and treat a statute as a mere non-binding starting point for what executive officials want to do, the rule of law is undermined. The threat is especially grave when the implementation of a law is not made public, as in interrogating detainees.

Louis Fisher, "Presidential Inherent Power: The 'Sole Organ' Doctrine" (PDF, 95KB), 37 Pres. Stud. Q. 139 (2007).  The executive branch often relies on the "sole organ" doctrine to define presidential power broadly in foreign relations and national security, including assertions of inherent executive power that is not subject to legislative or judicial constraints.  The doctrine draws from a statement by John Marshall when he served as member of the U.S. House of Representatives in 1800: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."  In dicta in the case of United States v. Curtiss-Wright (1936), Justice George Sutherland took Marshall's statement out of context to advocate an independent, plenary, exclusive, and extra-constitutional power for the President, but Marshall made no such claim in his speech or in his public service as Secretary of State and Chief Justice of the Supreme Court.

Louis Fisher, "Invoking Inherent Powers: A Primer" (PDF, 124KB), 37 Pres. Stud. Q. 1 (2007).  At various times in American history, Presidents have claimed "inherent" powers to take certain actions in periods of emergency.  President Truman's seizure of steel mills in 1952 is one example.  Another is the claim by President Nixon that he could order domestic surveillance.  Those claims were struck down in court.  This article provides an overview of inherent powers and focuses particularly on its application during the presidency of George W. Bush to military commissions, detaining "enemy combatants," the "torture memos" prepared by attorneys in the Justice Department, extraordinary rendition, and NSA eavesdropping.

Louis Fisher, "The 'Sole Organ' Doctrine" (PDF, 334KB), August 2006, a paper prepared for the Law Library as part of a series of studies on presidential power in foreign relations.  The paper provides a detailed examination of the "sole organ" doctrine made popular by Justice George Sutherland in his opinion in United States v. Curtiss-Wright (1936).  The study explains why his use mischaracterizes what John Marshall said in a floor speech in 1800, while a member of the U.S. House of Representatives, and includes critiques and analyses by scholars and judicial citations to "sole organ."  Although the Supreme Court has at times described the President's foreign relations power as "exclusive," it has not denied to Congress its constitutional authority to enter the field and reverse or modify presidential decisions in the area of national security and foreign affairs.

State Secrets Privilege

Louis Fisher, "Judges Need to Look" (PDF, 146KB), Legal Times, November 24, 2008, pp. 34-35. Executive Order 12958 establishes administration policy for classifying national security information. It directs agencies not to use classification to "conceal violations of law." When private citizens seek government documents under the Freedom of Information Act (FOIA), at times to uncover agency violations, Congress specifically authorized federal judges to examine highly classified documents in their chambers. In a recent case, District Judge Royce Lamberth was asked by private litigants to look at classified transcripts from Guantanamo to determine if there had been torture or abusive interrogations. Instead, he chose to examine what the Central Intelligence Agency said about the transcripts in an affidavit.

Louis Fisher, "Secret Documents: Why Classify Legal Memos?" (PDF, 126KB), National Law Journal, July 14, 2008. On March 31, 2008, the Bush administration declassified a legal memo issued five years earlier by John Yoo of the Justice Department. The memo is entitled "Military Interrogation of Alien Unlawful Combatants Held Outside the United States." Although declassified, there is no explanation of when it was classified, why it was classified, and who classified it, all of which is required by Executive Order 12958. The memo consists purely of legal analysis without indicating any matter clearly sensitive and deserving of some level of classification. How can the rule of law be protected when policy is governed by secret legal memos?

Statement by Louis Fisher, appearing before the Senate Committee on the Judiciary, "Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability" (PDF, 96KB), February 13, 2008. The state secrets privilege is now a central issue and Congress is the appropriate branch of government to supply much needed procedures and governing principles. It is critical that we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to another. The executive branch is not entitled to "utmost deference" or even "deference." In the past, federal courts have been misled by executive claims about national security, including in the seminal case of United States v. Reynolds (1953).

Statement by Louis Fisher, presented to the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Committee on the Judiciary, "Reform of the State Secrets Privilege" (PDF, 68KB), January 29, 2008. Following the terrorist attacks of 9/11, assertions of the state secrets privilege pose a greater threat to constitutional government and individual liberties in such cases as NSA surveillance and extraordinary rendition. Even if it appears that the administration has acted illegally, the executive branch advises federal judges that a case cannot allow access to documents without jeopardizing national security. Self-interested executive claims may override the independence of the federal judiciary, the corrective mechanism of checks and balances, and the right of private litigants to have their day in court. Congress needs to enact legislation to strengthen the adversary process that we use to pursue truth in the courtroom.

Louis Fisher, "The State Secrets Privilege: Relying on Reynolds" (PDF, 151KB), 122 Pol. Sci. Q. 385 (2007). The George W. Bush administration has invoked the state secrets privilege as an absolute bar to litigation whenever the administration determines that the disclosure of agency documents would harm national security. The cases involve such areas of law as NSA surveillance and extraordinary rendition. This article analyzes the Supreme Court case relied on primarily by the administration, United States v. Reynolds (1953), which for the first time recognized the state secrets privilege. The Court's decision did great damage to the integrity of the judiciary, the rights of private litigants, and the constitutional system of checks and balances.

Louis Fisher, "People v. State: Security Secrets Must be Weighed Against American's Broader Interests (PDF, 98KB)," Legal Times, October 1, 2007, pp. 66-67. In recent cases involving state secrets, federal judges typically put the plaintiff's interest on one side of the scale and the government's interest (or "national interest") on the other. Under this test, the individual can be guaranteed to lose every time. Judicial analysis following this standard protects neither the plaintiff nor the nation. There is no national interest in picking up the wrong person (Khalid el-Masri, for example) and keeping him in prison for five months. El-Masri was not merely presenting his own interests. He represented every individual, U.S. citizen or alien, who wants to avoid a similar fate. Judicial deference to executive claims does not protect the national interest or the system of checks and balances.

For book-length treatment of the state secrets case and the Reynolds decision by the Supreme Court, see Louis Fisher, In The Name of National Security: Unchecked Presidential Power and the Reynolds Case (Lawrence: University Press of Kansas, 2006).

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Military Tribunals

Louis Fisher, “To Have and To Hold: Those in U.S. custody deserve reliable evidence (PDF, 108KB),” Legal Times, March 16, 2009, pp. 38-39. After the 9/11 terrorist attacks, the Bush administration indefinitely detained U.S. citizens and aliens without charging them with crimes, providing legal assistance, or granting a hearing. Their detention depended on confidential information withheld from them. A similar situation occurred in 1948, when Ellen Knauff arrived in the New York Harbor to join her husband’s family. She was taken to Ellis Island and held there for three years. Confidential information supposedly indicated that her admission would be “prejudicial” to the United States. Eventually she was allowed to enter the country after members of Congress, newspapers, and some federal judges protested the government’s policy.

Review of Honor Bound: Inside the Guantanamo Trials (external link), by Kyndra Miller Rotunda (Durham: Carolina Academic Press, 2008), reviewed by Louis Fisher. US Army Captain (now Major) Kyndra Miller Rotunda served several tours as a Judge Advocate General officer, including an assignment in Guantanamo Bay. Among her criticisms of the administration is "giving detainees more rights than the Geneva Conventions require." However, the detainees at Gitmo needed more rights. Unlike prisoners of war, they were subject to prosecution and possibly the death sentence. Rotunda compares Gitmo with the more restrictive environment of a prison in Ohio, but prisoners have already been charged, tried, given counsel and procedural safeguards, and convicted. Detainees at Gitmo were held year after year without formal charges or trial.

Louis Fisher, "Military Commissions: Problems of Authority and Practice (PDF, 154KB)," 24 Boston U. Int'l L. J. 15 (2006). In deciding to authorize military commissions on November 13, 2001, President George W. Bush relied primarily on the Supreme Court's decision in Ex parte Quirin (1942). A close look at Quirin reveals a process and a decision with so many deficiencies that it should be remembered as a precedent not worth repeating. Other precedents cited by the administration for independent executive authority, including the trial of John Andre in 1780, are also misleading. Allowing military commissions to operate on the exclusive or "inherent" authority of the President poses a serious threat to basic constitutional principles, including the war prerogatives of Congress, separation of powers, and checks and balances.

Louis Fisher, "Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power (PDF, 229KB)," 2 J. Nat'l Sec. L. & Policy 1 (2006). Although the Bush administration after the 9/11 terrorist attacks claimed independent authority to create military tribunals, Congress under the Constitution has primary responsibility over military courts, tribunals "inferior to the Supreme Court," "Offenses against the Law of Nations," the war power, and "Rules concerning Captures on Land and Water." This article covers the key differences between the German saboteur case of Ex parte Quirin (1942) and the Bush tribunals, the importance of the Non-Detention Act of 1971, and the litigation that challenged the Bush military tribunals, including the Supreme Court decisions of Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).

[For book-length treatments of military tribunals, see Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (Lawrence: University Press of Kansas, 2003) and Louis Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (Lawrence: University Press of Kansas, 2005).]

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Last Updated: 06/09/2015