Richard Epstein is a friend and former teacher, but I have to take issue with his contention that the president cannot conduct warrantless surveillance of enemy communications. His position is based on a strained reading of the Commander in Chief clause and ignores other relevant constitutional text and existing Supreme Court precedent.
Prof. Epstein challenges the president's claim of inherent power by noting that the word "power" does not appear in the Commander in Chief clause, but the word "command," fairly implied in the noun "Commander," is a more-than-adequate substitute for "power." Was it really necessary for the drafters of the Constitution to say that the president shall have the power to command? Moreover, Prof. Epstein ignores completely the first clause of Article II -- the Vesting clause, which provides quite clearly that "The executive Power shall be vested in a President." The relevant inquiry is whether those who ratified the Constitution understood these powers to include interception of enemy communications in time of war without the permission of a judge, and on this there is really no doubt; they clearly did, which means that Congress cannot restrict the president's authority by mere statute.
Prof. Epstein's own description of the Commander in Chief clause recognizes this. One of the "critical functions" performed by the clause, he notes, is that "Congress cannot circumvent the president's position as commander in chief by assigning any of his responsibilities to anyone else." Yet FISA does precisely that, assigning to the FISA court a core command authority, namely, the ability to authorize interception of enemy communications. This authority has been exercised by every wartime president since George Washington.
Prof. Epstein also disputes the Justice Department's claim of congressional support via the Use-of-Force Authorization that was passed overwhelmingly in 2001, contending that "AUMF does not contain one word that dislodges FISA." Here, Prof. Epstein's position is at odds not only with Justice, but with the Supreme Court as well. A nearly identical argument was made unsuccessfully in the Hamdi case. Hamdi argued that federal law prohibited detention of citizens "except pursuant to an Act of Congress," and that the AUMF was not such an act because it did not contain a single word dislodging the anti-detention law. Justice O'Connor, writing for a court plurality, held that the AUMF was sufficient because detentions of enemy combatants had always been considered an incident of war. So, too, with the interception of enemy communications.
Finally, Prof. Epstein contends that Congress can restrict the president's constitutional power by virtue of its own constitutional power "to make rules for the government and regulation of the land and naval forces." This is a novel reading of that clause, which was designed to permit Congress to adopt things like the Code of Military Justice, not to determine operational tactics. It is Prof. Epstein's broad reading of congressional power, not the president's historically- and textually-grounded reading of his own power, that threatens to "upset a carefully wrought constitutional balance." Our nation's founders designed a chief executive, answerable directly to the people, that was strong enough to defend our national security, even acting "with secrecy and dispatch," if necessary. We should be very wary about restricting the president's constitutional powers at the very moment they are most critically needed.
John C. Eastman, Ph.D., J.D.
Professor of Law
Chapman University School of Law
Director, The Claremont Institute Center for Constitutional Jurisprudence