32. Extra-Constitutional Authority

Rupert Murdoch's Weekly Standard has an article by conservative think-tanker Gary Schmitt that advocates "a serious debate about abolishing FISA and restoring the president's inherent constitutional authority to conduct warrantless searches for foreign intelligence purposes."  After pausing for a moment to consider what Mr. Schmitt and his colleagues would have said about President Clinton authorizing warrantless searches, let's take a look at his choice of words.

Schmitt's phrase "inherent constitutional authority" is self-contradictory.  If authority is granted by the Constitution, then by definition it's not inherent in the office: it's granted by an external source.  The phrase "inherent power" has meaning only if it refers to powers that are not granted by the Constitution.

This leads to another basic point.  In our society, the government has no power that is not granted by the Constitution.  Right?  So whenever one of the branches of government lays claim to "inherent powers" -- powers not actually granted to it by the Constitution -- it necessarily must be seizing powers that are either [1] prohibited by the Constitution, or [2] assigned by the Constitution to one of the other branches.  To the extent this is permissible, it must be on the basis of necessity.  For example, the judiciary can claim the power to announce a dress code for lawyers so long as the legislature has not gotten around to it, because otherwise there would be no dress code and -- the horror!!

The judiciary, and particularly the state judiciary, is in a poor position to complain about the executive branch exercising extra-constitutional powers, because state courts have been extremely aggressive about announcing their own inherent powers to do such things as promulgate statutes (er, I mean, rules) prospectively determining citizens' rights (er, I mean, regulating courtroom practice and procedure).  This Tennessee case, which quotes the Tennessee Supreme Court in full King Kong chest-thumping mode, is  just one of thousands of equally preposterous cases that could be linked to.

Pity the poor legislative branch.  On one side its authority to make prospective rules of universal application has been taken over in significant part by the judiciary.  On the other side, its power to define the government's relationship to its citizenry has been assumed in surprisingly significant part by the President. 

Nah, on second thought, what's to pity?  Congress and the state legislatures can reclaim their power any time they wish.  All they need to do is halve the budgets of their antagonists (er, I mean, their co-equal branches).  That'll earn 'em all the respect they need.

If you like your discussion of inherent power to be conducted at a more rarefied level, I recommend this from Prawf's Blawg, and if that's not abstract enough for your taste check out Cass Sunstein's contribution to the University of Chicago Law Professors Collective.  For a discussion that pays respectful attention to arguments I don't think deserve it, take a look at SCOTUSblog.  (But does "SCOTUSblog" sounds more like an embarrassing medical condition or more like a person making fun of Norwegian cooking?)