Guest Column

By Perry J. Mitchell
Special to the Coastal Point

The president has defended his action as totally within the law and said that he has power under his commander-in-chief powers in the Constitution to make this order to protect American citizens.

For those who are older than 50, these issues seem like déjà vu. Let’s go back to the 1970s and look at activities of the Nixon administration, which was accused of similar activity.

In 1970, President Nixon approved of a plan for those who “pose major threat to our internal security.” It was called the Huston plan and called for the warrantless search of domestic mails, and monitoring of overseas mail, cable and phone communications by American citizens.

Hoover, the FBI director (who was no friend of civil liberties), claimed the plan was illegal. Nevertheless, the administration went ahead with the parts of the plan and searched Daniel Ellsberg’s psychiatrist’s office and attempted to bug the Watergate building, which housed the Democrat National Committee. Thus, the Watergate scandal was born.

Later, part of the House’s bill of impeachment against Nixon charged that he had violated the rights of American citizens with these tactics. Nixon resigned from office rather than be removed from office.

While Nixon consciously sought to expand presidential power and authority, one of the outcomes of the Watergate affair was that presidential power was eclipsed by the Supreme Court and the Congress.

The Court handed down a decision on the issue of domestic wiretapping in 1972. The case was U.S. v. U.S. District Court and held that no inherent power of the president existed to conduct electronic surveillance for domestic security purposes without judicial approval.

This is a stunning case that fits into our present-day scenario.

In 1976, Congress passed the National Emergencies Act terminating many grants of power going back to the Roosevelt administration. It also provided a procedure for the president to establish an emergency with congressional safeguards. This is a law that limits presidential power to use emergencies as a pretext to carry out illegal activity.

Later, in 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) to authorize the president to monitor communications in national security and international terrorism. It provided a procedure and a special court for obtaining warrants in national security cases.

FISA allows a window of 15 days for the president to use warrantless searches in wartime. It also has retroactive power to approve of warrants in genuine national security cases. It further provides penalties for searches that are beyond the scope of this law.

Thus far, the FISA Court has only denied four out of 4,713 requests for warrants. Again, this is a law that limits presidential authority — except within the scope of FISA.

Does the president have plenary power from the Constitution? To be sure, presidents like Lincoln have fallen back on executive prerogative power, but they have been exceptional.

The Youngstown Sheet and Tube v. Sawyer case handed down in 1952 may shed light on this question. The Supreme Court held that President Truman’s seizure of the steel mills in the midst of a union strike was unconstitutional. The president had issued his order under his commander-in-chief power in Article II of the Constitution.

Justice Black in the 6-3 opinion for the Court rejected the theory of executive prerogative, rejected any theory of inherent power and any power flowing from the president’s commander-in-chief role to seize and control these steel plants. He emphasized that the president is not above the law.

As succinct as Justice Black was, I believe that presidential inherent power can be utilized if the situation is dire enough and the emergency was real. Many political scientists would agree, when the emergency is real and poses a substantial threat to our existence.

For example, who would say that if planes with nuclear weapons were headed toward us across the Artic Circle the president should not act to prevent their attacking us?

Congressional committees may start an investigation in 2006, and I am sure we will hear more on this tale of presidential power. The holiday season has a tradition of being blah and boring for news. News junkies’ alert: Just maybe, that will not be true this holiday season.

Perry J. Mitchell is a retired political science professor living in Ocean View.