Drones to Drachms

Presidential Power

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.

********************