The current debate over the Homeland Security bill raises fundamental questions about fundamental constitutional principles. The following discussion proves illuminating in a way the political debate has not. This is an excerpt from the Claremont Institute-sponsored panel "The Administrative State Goes to War," Annual Meeting of the American Political Science Association, Sept. 1, 2002.
The roundtable on the domestic politics of the current war featured Mackubin Owens of the Naval War College and John Eastman of Chapman University School of Law. Dr. Owens is a Fellow of the Claremont Institute, decorated Marine veteran of Vietnam, and author of numerous scholarly and popular articles on political philosophy and foreign and domestic politics. Dr. Eastman clerked for Supreme Court Justice Clarence Thomas and heads the Institute's Center for Constitutional Jurisprudence.
"In sports you like to play home games. In war you like to play away games."
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Our theme is very much one involving the key American constitutional principle, which has, however, deteriorated considerably over the past century — the separation of powers. The rise of the administrative state relates directly to the way we wage war: Consider the legislative intrusion on defense, the judicial intrusion on defense, and the executive washing its hands of the primary function. There is then a great mix in each of the branches' role and their respective powers. I take it as an axiom that the executive we have created, in order to be able to respond to situations like we're in must keep vital information secret and we must move quickly, but the administrative state we've established has made it virtually impossible for us to accomplish our foreign policy tasks secretly or quickly.
For example, on the eve of the launching of the first strike against Iraq in 1991, there was a Cabinet meeting in the Bush White House, and the Secretary of the Interior objected to going to war because the government had not run an environmental impact report to take governmental action. Apparently, there was a wildlife complication under the Endangered Species Act. The whole litany of environmental law was that we were about to violate it. It is going to cause harm to the environment! That's the whole point!
And there's no statute that can restrict your powers under Article II that can trump those powers of the commander-in-chief and the obligation that all the laws are faithfully executed. The power of the president is superior to the power of legislature. It shows you that anybody who takes it seriously cans how you how far down the path we've gone with the regulatory regime. And we see a lot of that today. We see, with the president reconstituting several of our executive departments, such as the new department of Homeland Security. It's more about exemption from a number of these bureaucratic requirements, civil service protection, and yet underlying this whole notion, that in fact those things do bind the president in his exercise of Article II powers. Another aspect of this is the tendency of the administrative state itself to render itself inefficient in every available opportunity....
Our administrative state tends to have direction and so one has to think through what we're trying to accomplish. And the natural tendency to want to divert our military has least of all gone that direction. But you see what Mac was talking about, with the natural tendency to want to ask the military to do more and more. And it's not a traditional turf war, the FBI and areas under his command and what have you. On the other hand, the turf war that's going on has nothing to do with the executive branch, because if you bring all these agencies under one Homeland Security Department, you only have one Senate and one House oversight committee, instead of eighteen Senate oversight responsibilities. And so, what we're talking about is what underscores the extent to which the oversight committee in the legislature is conducting, undermining the president.
The other part of this is that it not only acts as dispatch, but it also acts as secrecy. Consider, for example, case of the General Accounting Office's suit against Dick Cheney on a whole unrelated matter, over records of who he met with in developing the president's energy policy. The Federal Accounting Office is suing the executive office for internal deliberation or papers for this task force that Dick Cheney had to make a recommendation to the president. And of course, they are all now trying to get the president to reveal certain aspects of the military, and undermining the very secrecy that we wanted. The second aspect of unitary secrecy is that even if the president does comply with these improper requests, but only gives them to a select committee on intelligence. Again, one of the reasons we have this separation is for secrecy.
It is much more difficult to find such agents for future operations. The gathering of intelligence is not something we can do domestically. It's an overseas operation, requiring infiltration of organizations that threaten us before they hit us. And yet, this attempt by the legislature to regulate public disclosure of all activity, makes it impossible to impossible to carry out that kind of intelligence gathering effort. The legislature, for whatever reason, to make a political point to themselves or to the executive, undermines the president's ability to act secretly, unilaterally, or to wage war....