Saturday, January 27, 2007

Cole on the Nixon Precedent and Contemporary Executive Power


In contemporary scholarship on executive power, invoking Richard Nixon seems to be the equivalent of invocations of Lochner in arguments about judicial review. David Cole, Georgetown, makes this move in a new article, just posted on SSRN, Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror. It has been published in the Washington and Lee Journal of Civil Rights and Social Justice. Here's the abstract:
“When the President does it, that means that it is not illegal. So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement in the 1970s. For thirty years Nixon's defense has stood as the apogee of presidential arrogance. But of course Nixon was proved wrong. The wiretapping plan was shelved when FBI Director J. Edgar Hoover, of all people, objected to it. Nixon's approval of the program was listed in the articles of impeachment, and ultimately he was forced to resign. Nixon learned the hard way that presidents are not above the law.
In defending the NSA spying program, at least until the recent about-face, as well as in its views on enemy combatants and torture, the Bush administration has essentially revived the Nixon doctrine. This essay argues that the Bush administration's defense of the NSA spying program (and of unchecked presidential authority over enemy combatants and interrogation techniques) is fundamentally flawed, both as a matter of law and as a matter of national security policy. The argument that Congress authorized the program defies the most basic principles of statutory construction. The claim that the Commander in Chief has uncheckable authority with respect to “the means and methods of engaging the enemy” is contrary to the text of the Constitution, the structure of checks and balances, and a long line of Supreme Court precedent. And no Fourth Amendment precedent supports the notion that the president may wiretap Americans without probable cause or a warrant.

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