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President Obama Zones Out

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For those wondering how conservatives can support President Bush’s robust use of his Commander-in-Chief powers but decry President Obama’s unilateralism on domestic policy issues like yesterday’s immigration diktat, please consult President Obama’s letter to Congress pursuant to the War Powers Resolution just published by the White House.

Note that President Obama, like President Bush before him, acts pursuant to and cites in his letter the Authorization for the Use of Military Force, Public Law 107-40, when describing their conduct of the war on terror, both in Afghanistan and even when the operations are far removed from the Afghan theater. Many originalists do not believe the War Powers Resolution to be constitutional, but the AUMF is certainly an express provision of additional authority to the Commander-in-Chief that renders the critique about inconsistency with regard to presidential power to be absolutely spurious and revealing only of a lack of understanding of how the Constitution operates. The president has some powers under Article II and enjoys other powers pursuant to grants given by Congress. In other words, the Constitution has meaning, and when presidents act pursuant to it they act legitimately and when they don’t, they act illegitimately.

What provision of the Constitution or federal law can President Obama cite is support of his decree yesterday? None. There isn’t any. In fact, he himself acknowledged as much last year, and he is thus by admission against his own interest acting in Justice Jackson’s third “zone” of presidential power. Read for yourself what this famous concurring opinion says about that zone, and judge for yourself the legitimacy of President Obama’s usurpation of power yesterday:

Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances,[p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [n3]

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject.[n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.



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