The Chief Executive/Commander-In-Chief Must Follow the Laws That Congress Passes - And No More

From OpEd News, there is this:

The President Has No Inherent Power Which Permits Him To Violate FISA Or Any Other Law Duly Enacted By Congress

If Bush Wants To Conduct This Surveillance, Congress Must Change The Law. See LITTLE v. BARREME, 6 U.S. 170 (1804)

by Rev. Bill McGinnis

Yesterday, Sen. Pat Roberts wrote that President Bush's warrantless surveillance program is "legal, necessary and reasonable," and that, "Congress, by statute, cannot extinguish a core constitutional authority of the president."

Source: http://www.chron.com/disp/story.mpl/ap/politics/3635190.html

Unfortunately for the Country, Sen. Roberts got it wrong. The program may possibly be necessary: that is debatable. But it certainly is not legal. Nor can it be justified by any supposed "core constitutional authority of the president."

The Supreme Court ruled directly on a very similar case in the early days of our Country, when the Founders' intentions were fresh and clear in people's minds. The question involved the President going against a direct Law of Congress, regarding a military action in a time of semi-declared war. And the Supreme Court ruled that the President's actions were illegal, because they violated a Law passed by Congress.

In the case "Little v. Barreme," in 1804 The Supreme Court ruled that a part of President John Adams' instructions to seize ships was in conflict with an act of Congress and therefore illegal. Congress had passed a law instructing the President to seize certain ships going to France. President Adams changed that to include certain ships that were either going to or coming from France. A ship was seized coming from France. So the seizure followed the Presidential instructions, but violated the Law passed by Congress, which only involved ships going to France. On appeal, the case came before the Supreme Court.

Chief Justice Marshall wrote, "On an appeal to the circuit court this sentence was reversed, because the Flying Fish was on a voyage from, not to, a French port, and was therefore, had she even been an American vessel, not liable to capture on the high seas."

One scholar described the case like this: "But Chief Justice Marshall wrote that even in his capacity as commander in chief, the president could not authorize a military officer to perform illegal acts. Only Congress can make laws, Marshall argued, and regardless of the fact that the president may have ordered his subordinate officer to perform an illegal act, that act was still illegal, and the officer performing that act was responsible for his behavior. Not even a military officer, Marshall wrote, could use the 'instruction of the executive' as an excuse for performing an illegal act."

Source: http://www.questia.com/PM.qst?a=o&d=59816596

You can read this decision at
LITTLE v. BARREME, 6 U.S. 170 (1804): http://laws.findlaw.com/us/6/170.html

Now, compare what the Constitution says about war, the Congress and the President:

ARTICLE 1, SECTION 8

The Congress shall have Power:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress....

ARTICLE II, SECTION 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States....

"and make Rules concerning Captures on Land and Water" in its clear language means that the Congess tells ALL the military what rules to follow IN ALL OF THEIR ACTIONS, as concern captures - which would include POWS, and - pertinent in today's world - so-called "enemy combatants." This would also cover treatment of any captures beyond the battlefield.

It is of prime interest at this very time that the clear language here would certainly include THE PRESIDENT IN HIS ROLE AS COMMANDER-IN-CHIEF, since he, in that role, is a member of both the Army and Navy.

"To make Rules for the Government and Regulation of the land and naval Forces" - This clause is the most important clause in regards to Bush's claims of a unitary and unfettered Presidency during war. CONGRESS and only CONGRESS has the power to make rules for governing the land and naval forces, AND THIS INCLUDES THE PRESIDENT WHEN HE ASSUMES THE ROLE OF COMMANDER-IN-CHIEF. Bush and his administration do NOT have the authority under the Consitution to make carte-blanche decisions. He has NO POWER to make rules - only to execute the ones Congress has made.

"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States" in its clear language gives to the Congress ALONE the governing of the "Militia", i.e., the state military units and their personnel, meaning the National Guard and the Reserves. In this invasion of Iraq, with all the Guard units on duty, this means that Congress determines what Bush can do with them and what he cannot.

. . . . TD