http://mcculloughllc.wordpress.com/2013/02/21/presidential-power/
by Michael McCullough
From Drones to Drachms
By Michael McCullough
From the very beginning of the Republic, Americans have always
delighted in accusing their chief magistrate of having totalitarian
ambitions. With extraordinary derisiveness, every president since FDR
has been called a “fascist” for alleged subversion of the Constitution,
even in spite of Orwell’s observation in 1944 that misuse of the term
had rendered it “almost entirely meaningless.”
...
Thus, it’s not surprising to find two very different demonstrations
of the royal prerogative being criticized in recent weeks: the use of
drones to kill Americans and import restrictions on ancient coins. And
if you are remotely interested in the proper functioning of our
government, each example provides ample opportunity for evaluation and
reflection.
It is widely known that the “executive power” of the President
enumerated in Article II of the Constitution was meant to create a
strong executive. ... It’s less known
that the role of the Federal courts in explicating constitutional law is
mentioned nowhere in the Constitution. Judicial review of executive and
legislative actions was created out of whole cloth by the Supreme Court
itself in the famous case of
Marbury v. Madison.
....
Recently, the Department of Justice released a “White Paper” on the
legality of killing American citizens who are believed to be “senior
operational leaders” of al-Qaida or “an associated force.” Despite the
obvious vagueness of terms that leaves one wondering how remote the
“association” need be to avoid the breach, the central concern here is
use of executive power without some form of judicial review.
...
The “White Paper,” written by government lawyers, makes a pointed but
unsubstantiated case for an unconstrained executive, necessary to deal
with the security threats of today’s world. This new view sees terrorism
and associated threats to Homeland America as qualitatively different
from past security threats. As a result, a more flexible kind of
“executive power” is required; one that cannot be readily accommodated
within the traditional scheme of judicial and legislative oversight.
...
The problem with this new theory of executive power is that neither
the nature of structural constitutional interpretation nor the security
policy premises on which these claims are based support the case for the
kind of expansive executive power found in the “White Paper.”
...
For the purpose of contrast, the President’s imposition of import
restrictions on ancient coins provides a more traditional look at
“executive power.” Last week, the Ancient Coin Collectors Guild filed a
Petition of Certiorari asking the Supreme Court to review the lower
courts’ failure to conduct a “political question” analysis of the
President’s actions before dismissing the Guild’s complaint.
Three years ago, the Guild filed its lawsuit alleging that the
government failed to comply with specific statutory requirements of the
Convention on Cultural Property Implementation Act (“CPIA”). The CPIA
imposes certain procedural and substantive constraints on the
President’s authority to impose import restrictions on cultural objects.
Over time, the President’s authority was delegated down to the
Assistant Secretary of State, Bureau of Educational and Cultural Affairs
of the State Department. Once the State Department authorized import
restrictions on coins from Cyprus and China, U.S. Customs and Border
Protection published regulations in the Federal Register imposing those
import restrictions.
After briefing and oral argument, the district court dismissed the
case without allowing any discovery, prompting an appeal. On appeal, the
Guild asked the circuit court to rule that the district court had the
authority to review the President’s action and that any import
restrictions on coins must be written to comply with the plain meaning
of the CPIA (N.B., This correspondent represented three coin
organizations in filing an amicus curiae brief in support of the Guild).
The court of appeals declined the Guild’s request, saying that anything
but the most cursory review of the Federal Register “would draw the
judicial system too heavily and intimately into negotiations between the
Department of State and foreign countries.”
The Guild wishes to address the Supreme Court to argue that the power
and duty to decide constitutional disputes was accepted by the
judiciary in
Marbury v. Madison. Moreover, the Supreme Court decided over a quarter of a century ago, in a case called
Japan Whaling Association v. American Cetacean Society,
that “one of the Judiciary’s characteristic roles is to interpret
statutes, and [it] cannot shirk this responsibility merely because of
the interplay between the statute and the conduct of the Nation’s
foreign relations.” And if the Supreme Court agrees, then the Guild will
ask the Court to direct the court of appeals to apply the “political
question” analysis enunciated in
Baker v. Carr, which says that
a court can decide to review a presidential decision by applying “a
discriminating analysis of the particular question posed, in terms of
the history of its management by the political branches, of its
susceptibility to judicial handling in light of its nature and posture
in a specific case, and the possible consequences of judicial action.”
The “particular question” posed by the Guild is quite narrow: whether
the Government promulgated and applied import restrictions on coins in
compliance with the CPIA. Courts have ample experience in determining
whether a specific grant of power by the legislature is being followed
by the President. This matter, argues the Guild, is thus well within the
competence of a court to handle. Furthermore, the court of appeals’
dismissal of the Guild’s case because it touched on “foreign policy,”
but without performing any further analysis of the particular legal
issue actually before the court, places its decision making squarely at
odds with that of the Supreme Court and other federal appeals courts,
which have applied the “political question” analysis found in
Baker v. Carr
in a “foreign policy” context. Under these circumstances, the Guild
asks the Supreme Court to grant certiorari to secure and maintain the
applicability of its decisions by bringing the court of appeals and the
two other circuits that have not addressed the issue into line with the
decisions of the Court.
While I doubt that Mr. Obama is giving this case much thought, it’s
equally doubtful that Supreme Court will ever get another case
presenting less benign “consequences of judicial action.” Although, I
wouldn’t be taking any bets on the Guild’s chances of getting through
the golden doors, as the Supreme Court accepts a mere 1-2% of the cases
submitted on appeal. However, the odds get considerably better once the
doors close behind the Guild; the Supreme Court has reversed or vacated
this court of appeals in 61% of past cases.
...
********************
COMMENTARY
********************
> ... the Supreme Court accepts a mere 1-2% of the cases
submitted on appeal.
On is face, that statistic is intimidating. But if ever the circumstances of a case have demanded judicial review, the petition by the ACCG sets forth that case.
The issue here is not so much the limitations of Presidential power, as whether bureaucrats who are effectively not being overseen by any higher authority can pursue a hidden agenda detrimental to the interests of American citizens through the uncontrolled exercise of authority delegated by the President.
The State Department's Bureau of Educational and Cultural Affairs, controlled by archaeologist Maria Kouroupas, has done that in its grossly unfair and biased administration of authority granted to the President by the 1983 Convention on Cultural Property Implementation Act.
The principle at stake has an importance extending far beyond the interests of the approximately 50,000 US collectors of ancient coins. If unelected and apparently unaccountable bureaucrats can persecute coin collectors in this manner, without any recourse to judicial review of their actions, then what is to prevent other bureaucrats from following that precedent to persecute other US citizens concerned about their Second Amendment rights, freedom of religion and many other issues?
This observer believes that it is vital that this case should be heard by the Supreme Court. No employee of the US Government should be allowed to exercise regulatory power without responsible judicial review. The necessity of that review is so obvious and compelling that no further argument should be necessary.
********************
