The Right Coast

February 15, 2006
Richard Epstein on the NSA Anti-Terror Program
By Mike Rappaport

Richard Epstein, one of my heroes, publishes an op ed in the WSJ($), which argues that the NSA Antiterror program is illegal. Epstein argues that the Commander in Chief Clause is narrow and does not provide authority for the program. He also argues that the Authorization of Military Force statute clearly does not provide the President with authority for the program.

I part company with Epstein's claim that the Authorization of Military Force statute clearly does not provide the requisite authority, as I have discussed before. As to his Commander in Chief argument, while I basically agree with his conclusion that the original meaning of the Clause provides narrow authority, I disagree with his reasoning.

He writes:

[The Constitution provides that] "[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the militia when called into actual service of the United States." Note the word "power" appears no where in this sentence. The operative verb is "shall be."

The choice of words is not inadvertent. Later in the same section the Constitution provides that the president "shall have the Power to grant Reprieves and Pardons for offenses against the United States, except in cases of impeachment," and the "Power, by and with the Advice and consent of the Senate to make Treaties." Elsewhere the president shall "receive" ambassadors and "require" reports from his subordinates.

Words matter. Only powers allow for a change in legal status of the persons over whom some power is directed. Thus the president's power to grant reprieves and pardons is rightly described as "plenary," precisely because Congress has no stated power to hedge it in by legislation, for example by declaring certain offenses unpardonable. The president's power to make treaties is likewise plenary, but now subject to the explicit check of Senatorial advice and consent. (Emphasis added)
This argument does not work, since there is a clear counterexample: The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officers of the United States, including Supreme Court justices. Clearly, the appointment of a Supreme Court justice changes the legal status of the person appointed, yet there is no mention of power.

It is not entirely clear why the Constitution sometimes uses power and sometimes not, but I have a different hypothesis: the Constitution uses power when it is conferring a discretionary power on the President (that the Congress cannot mandate); by contrast, in cases when it uses "shall," it imposes a binding obligation, including one that the Congress can mandate. So the President is Commander in Chief and must take care that the laws be faithfully executed. Similarly, he must make appointments to various offices (if Congress requires it). By contrast, he need not make recess appointments ("The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate").