Congressional Research Service: Presidential Authority to Conduct Warrantless Electronic Surveillance

... Foreign intelligence collection is not among Congress’s powers enumerated in Article I of the Constitution, nor is it expressly mentioned in Article II as a responsibility of the President. Yet it is difficult to imagine that the Framers intended to reserve foreign intelligence collection to the states or to deny the authority to the federal government altogether. It is more likely that the power to collect intelligence resides somewhere within the domain of foreign affairs and war powers, both of which areas are inhabited to some degree by the President together with the Congress.

The Steel Seizure Case12 is frequentlycited as providing a framework for decide the extent of the President’s authority, particularly in matters involving security. In that Korean War-era case, the Supreme Court declared unconstitutional presidential order seizing control of steel mills that had ceased production dispute, an action justified by President Truman on the basis of wartime exigencies role as Commander-in-Chief,13 despite the fact that Congress had considered earlier legislation that would have authorized the measure,14 and that other statutory were available to address the steel shortage.15 The Court remarked that

It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that ‘The executive Power shall be vested in a President . . .’; that ‘he shall take Care that the Laws be faithfully executed’; and that he ‘shall be Commander in Chief of the Army and Navy of the United States.’

The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.

The Court also rejected the argument that past similar assertions of authority by presidents bolstered the executive claims of constitutional power:

It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution ‘in the Government of the United States, or any Department or Officer thereof.’17

The Steel Seizure Case is not remembered as much for the majority opinion as it is for the concurring opinion of Justice Robert Jackson, who took a more nuanced view and laid out what is commonly regarded as the seminal explication of separation-of-powers matters between Congress and the President. Justice Jackson set forth the following oft-cited formula:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . . A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3.When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.18

To ascertain where in this framework the President’s claimed authority might fall appears to require a determination of the Congress’s will and an assessment of how the Constitution allocates the asserted power between the President and Congress, if at all. If the Constitution forbids the conduct, then the court has a duty to find the conduct invalid, even if the President and Congress have acted in concert. In the absence of a constitutional bar, Congress’s support matters, except in the rare case where the President alone is entrusted with the specific power in question. In other words, under this view, the President may sometimes have the effective power to take unilateral action in the absence of any action on the part of Congress to indicate its will, but this should not be taken to mean that the President possesses the inherent authority to exercise full authority in a particular field without Congress’s ability to encroach.

William Rehnquist, at the time an Associate Justice of the Supreme Court, took the opportunity in Dames & Moore v. Regan19 to refine Justice Jackson’s formula with respect to the cases falling within the second classification, the “zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.”20

In such a case the analysis becomes more complicated, and the validity of the President’s action, at least so far as separation-of-powers principles are concerned, hinges on a consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action, including “congressional inertia, indifference or quiescence.”21

[I]t is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.22

In Dames & Moore, petitioners had challenged President Carter’s executive order establishing regulations to further compliance with the terms of an executive agreement he had entered into for the purpose of ending the hostage crisis with Iran. The orders, among other things, directed that legal recourse for breaches of contract with Iran and other causes of action must be pursued before a special tribunal established by the Algiers Accords. President Carter relied largely on the International Economic Emergency Powers Act (IEEPA),23 which provided explicit support for most of the measures taken, but could not be read to authorize actions affecting the suspension of claims in U.S. courts. The Carter Administration also cited the broad language of the Hostage Act, which states that “the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release” of the hostages.24 Justice Rehnquist wrote for the majority

Although we have declined to conclude that the IEEPA or the Hostage Act directly authorizes the President’s suspension of claims for the reasons noted, we cannot ignore the general tenor of Congress’ legislation in this area in trying to determine whether the President is acting alone or at least with the acceptance of Congress. As we have noted, Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, “especially . . . in the areas of foreign policy and national security,” imply “congressional disapproval” of action taken by the Executive. On the contrary, the enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to “invite” “measures on independent presidential responsibility.” At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President.25

The Court remarked that Congress’s implicit approval of the longstanding presidential practice of settling international claims by executive agreement was critical to its holding that the challenged actions were not in conflict with acts of Congress.26 The Court cited Justice Frankfurter’s concurrence in Youngstown stating that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on ‘Executive Power’ vested in the President by § 1 of Art. II.”27 Finally, the Court stressed that its holding was narrow:

We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. . . . But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President’s action, we are not prepared to say that the President lacks the power to settle such claims.28

A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.29...

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