Truman & Youngstown Steel, we're gonna need to know about this one

[HereSince1628]

Here is a case we are going to get to know well during the debate over the use of presidential power that exceeds the constitution. A president's assertion of authority on claims based on "inherent power" and Commander in Chief was struck down.

http://usinfo.state.gov/usa/infousa/facts/democrac/59.htm

The following is my take on this, and beware, my doctorate is in a field of science, not jurisprudence. I may not have emphasized the right points but it seems this is a case we are going to here a lot about.

Once upon a time, well actually in 1952...

Truman attempted to forestall strikes among steelworkers by having the federal government seize the steel industry (Yeah, that got my attention, too). Truman felt that during a time of war (Korea)he had this power although it seemed to exceed his constitutional authority.

Not surprisingly, this sort of intervention in labor disputes had no basis in any law. For our current problem of unwarranted surveillance on Americans it is important to recognize that Truman argued that his authority stemmed from his role as Executive, from implied aggregate powers _AND_ as Commander and Chief. Yes, this sounds very familiar doesn't it?

Well, the steel industry brought suite against the seizure on the grounds that the presidential ruling violated the principle of separation of powers. They won; Truman and his argument deriving authority from the inherent presidential power and also as Commander and Chief failed.

The the Court felt that Truman's role as executive required him to faithfully execute the law (This is clearly gonna be important to the case against Bush). There were no laws that authorized Truman such power and so his order violated that. Moreover (and this is also gonna be important to the case against Bush)), the decision also determined that Truman's order amounted to making law, an authority not constitutionally granted to the presidency. The Court felt this violated the principle of separation of powers. He should have asked for a law providing the authority.

They felt that his claim of authority to take control of he steel industry under Commander and Chief authority was not credible, after all else it was an effort to control a strike not wage war, although (and this may be important to Bush's supporters) they left open the notion that a theater of war (remember the actual fighting was in Korea) might include the United States.

But, (and this seems important to the case against Bush) they felt that Commander and Chief authority did not extend to seizing property which is protected against by the Fourth Amendment (which just happens to also protect our lives from guess what--unwarranted surveillance).

[radio4progressives]

1. I've warned people that this CRIME was going to morph into a "debate"

in the Corporate MSM.

Domestic Spying was a very serious concern during the passage of the 1947 National Security Act, and so safegaurds protecting Amercian Citizens from potential abuse was written into the 1947 NSA.

The Supreme Court decision on Youngstown is considered (correctly) as "Decided" on the question of presidential authority powers overiding the rights of citizens.

I certainly hope we will not be advancing the notion that this question needs to be "debated" under the rubric of "this is a different age, new technology, war on terrorism" rubric.

:banghead:

[HereSince1628]

2. I'm being honest, as an investigation gets going there will be an

on-going debate. Can you imagine the pundits not talking about it and at least some of them presenting an attempt at a defense for the Worst President Ever?

As Bush's abuse of power moves from a probe to charges of high crimes and misdemeanors we will hear plenty from the other side. Maybe you'd rather be blind-sided.

[radio4progressives]

4. I think you misunderstand...

I absolutely do not want to be blind sided, in fact that's exactly what i was sounding the alarms about the other day, so that people would not be blind sided - in fact so that people would be prepared for this deliberate morphing of a clear crime of the highest offense a president could make against the constitution and the citizenry which it represents, to something that is "up for debate".

what i'm saying is, this is NOT an issue that should be considered up for "debate" - you know, like the the invasion in Iraq, - that should NEVER have been something we should be debating "after the fact" ...

i'm pressing people to be vigilent on this, do not allow the MSM or Congress for that matter to morph this in a "legal argument".

slam anyone to the ground that even tries to get away with that..

Congress members, Senators, (Democrat or Republican) Media Pundits etc...

[many a good man]

3. bush* doesn't have a legal leg to stand on

Not one. Gonzo and Yoo's attempts to create these powers out of whole cloth are laughable. There's not a single respectable legal scholar in all the land or any case law supporting this position. Bush is toast if the case ever makes it to a court of law in the United States.

The conditions ARE present for the development of a perfect storm.

[radio4progressives]

5. nice bumper sticker ... did you create that? N/T

:hi:

[many a good man]

10. Thanks. Yes I did!

And it felt good the whole time I was making it! I wanted to mimic the "understated elegance" of some of their campaign stickers, including the pompous curly double-yoo.

I feel its time to put one on my car, but I'm hoping to find something better. Most Americans can't seem to admit that something's a big deal unless the MSM OKs it. We need to create that groundswell of PO that forces the politicians and media to confront the issue.

[HereSince1628]

6. I think Bush has violated the Constitution and the law, too.

However, he isn't the first president to claim such power and John Yoo didn't create his rationale, or his entire bloody book on the topic, _de novo_, but rather out of the writings and decisions of others. Youngstown v Truman is part of that. All those who have written about it probably are not unrespectable, allowing that John Yoo might be. Perhaps you know every bit of relevant hisotry and law, most of us don't. Youngstown v Truman is history and case law in which the President did not prevail. Bush's defense will try to steer around arguments and decisions presented there.

At this time it seems pretty clear that charges that Bush acted outside established law and beyond the constitution will include:

Bush violated his oath of office and failed to defend the Constitution and faithfully execute the laws of the United States.

He violated protections guaranteed citizens under the fourth amendment.

He violated existing law, the FISA law and the US Criminal Code as it concerns requirements for wire tapping.

He probably violated the separation of powers outlined in the Constitution, in at least 2 ways. First, the executive order (or orders), that we have not seen and that enabled the warrantless wiretapping, seem to have created authority where none expressly existed. That is essentially the establishment of new law by Presidential decree and creation of law belongs not to the Executive but to the Congress.

Second, Bush willfully abandoned the oversight by FISC, or any other court, and assumed plenary powers in surveillance cases which FISA and the criminal code specifically placed in the hands of the Judiciary. More generally Bush and or his agents asserted and assumed authority to interpret laws and the Constitution. These actions usurp powers and authority granted in the Constitution to the Judiciary.

Although no president has done all these things or done them in exactly the same manner, or under the exact circumstances as Bush has done, similar charges either were made or could be made against other presidents. These charges have been discussed by presidential and constitution scholars, and in some cases the court has made earlier rulings that will influence the proceedings. Youngstown v Truman addresses a number of these issues and will be relevant to arguments and legal sophistry that we encounter over the coming months.

[many a good man]

11. Other Presidents

Presidents going all the way back to Adams have tried to stretch executive powers and have been beaten back by the other two branches every time. :spank:

The only real exceptions occur during times of extreme national crisis. The separation of powers is the centerpiece of the Constitution. Its main purpose was to prevent TYRANNY.

I certainly hope someone (Conyers?) is compiling a list of all the relevant court decisions and will publish it soon. I'm certainly no constitutional scholar (I didn't sleep in a Holiday Inn last night, either) but everything I've been taught and read indicates its a slam dunk.

The FISA act (and its amendments and court decisions) is the operable law concerning domestic surveillance.

Of course, another 911 could convince the jurists that we really are in period of extreme national crisis.
:scared:

[HereSince1628]

12. The principle of separation of powers is critical to defend.

Bush pretty clearly violated laws, but he also has assumed powers and authority granted only to the other branches of government. Hopefully that can be made obvious, and will motivate the House to action.

[ProSense]

7. Bush broke the law.

Bush defied Congress, but those who compare his actions to Truman or anyone prior to Nixon are being disingenuous. The FISA law was enacted in 1978 to prevent exactly the kind of abuses brought to fever pitch by Watergate. The law was amended to change the post-surveillance warrant application requirement from 24 hours to 72 hours.



NATIONAL SECURITY ACT OF 1947
ACT OF JULY 26, 1947
(As Amended)
AN ACT To promote the national security by providing for a Secretary of Defense; for a National Military Establishment; for a Department of the Army, a Department of the Navy, and a Department of the Air Force; and for the coordination of the activities of the National Military Establishment with other departments and agencies of the Government concerned with the national security.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SHORT TITLE
That <50 U.S..C. 401 note> this Act may be cited as the "National Security Act of 1947".


Snip…


(6) establish requirements and priorities for foreign intelligence information to be collected under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.. 1801 et seq.), and provide assistance to the Attorney General to ensure that information derived from electronic surveillance or physical searches under that Act is disseminated so it may be used efficiently and effectively for foreign intelligence purposes, except that the Director shall have no authority to direct, manage, or undertake electronic surveillance or physical search operations pursuant to that Act unless otherwise authorized by statute or Executive Order;


http://www.intelligence.gov/0-natsecact_1947.shtml


H.R.2883
Title: To authorize appropriations for fiscal year 2002 for intelligence and intelligence-related activities of the United States Government, the Community Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other purposes.
Sponsor: Rep Goss, Porter J. (introduced 9/13/2001) Cosponsors (None)
Related Bills: H.RES.252, H.RES.312, S.1428
Latest Major Action: Became Public Law No: 107-108
House Reports: 107-219; Latest Conference Report: 107-328 (in Congressional Record H9058-9065)

snip...

(Sec. 314) Amends the Foreign Intelligence Surveillance Act of 1978 to extend from 24 to 72 hours the time for judicial ratification of an emergency surveillance or search conducted under such Act.

http://thomas.loc.gov/cgi-bin/bdquery/z?d107:HR02883:@@@D&summ2=m&


http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001805----000-.html



Bush broke the law. He lied not only about obtaining warrants, but also about only spying on terrorists. And he knew it was illegal to spy on Americans.



Trying to reconcile what Bush said here and what he did
The White House denies that President Bush's domestic spying actions contradict a speech he made in Buffalo and elsewhere.

By DOUGLAS TURNER
News Washington Bureau Chief
12/25/2005

Bush had told a select audience:

"It's important for our fellow citizens to understand, when you think "Patriot Act,' constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

"Any time you hear the United States government talking about wiretap, it requires - a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."


http://www.buffalonews.com/editorial/20051225/1069912.asp




Power We Didn't Grant
By Tom Daschle
Friday, December 23, 2005; A21

Snip….

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrantless eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information.

Still, Bush and his advisers have said they need to operate outside the FISA system in order to move quickly against suspected terrorists. In explaining the program, Bush has made the distinction between detecting threats and plots and monitoring likely, known targets, as FISA would allow.

http://www.msnbc.msn.com/id/10564931/

[HereSince1628]

8. I never said he didn't. See my post in 6 just above...

The manner in which Bush broke the law also results in Bush's violation of the Constitution.

The decision in Youngstown was a denial of the concept of inherent powers of the presidency. I think we would assert that Bush should be denied this, too.

But is also somewhat more. It shows how a successful prosecution for violation of separation of powers might be derived from presidential actions taken under the inherent powers concept.

I think that we want to throw the entire book at Bush, including as many violations of the Constitution as can possibly be mustered.

[ProSense]

9. My apologies. The opening point in my post

about being disingenuous wasn't directed at you. I was in the process of writing this in response to a number of MSM articles comparing Bush's actions to past presidents. Since it was relevant to your point, I posted it here instead of starting a new thread. It should have been edited to state "those in the MSM."