From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
Date: Sun, 17 Nov 1996 19:17:55 -0800 (PST)
To: Charles Platt <cp@panix.com>
Subject: Re: Emergency powers
In-Reply-To: <Pine.SUN.3.91.961117164425.15672A-100000@panix.com>
Message-ID: <Pine.SUN.3.95.961117220716.9703C-100000@viper.law.miami.edu>
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On Sun, 17 Nov 1996, Charles Platt wrote:

> Of course, Michael Froomkin is right in everything he says about
> presidential emergency powers. But an unconstitutional abuse of power is

After this start, how could I be churlish enough to quibble with anything
you say?

> surely not acceptable merely because it has become a routine method for
> accomplishing everyday legislative tasks.  First, it allows significant

We need to be careful here.  Which is the unconstitutional abuse?

a) The Act giving the President emergency powers (IEEPA)
b) The President's use of the act (in this case or in other cases)
c) The courts' decision that the existence of an emergency (as opposed to
the way the powers are used) is not reviewable (more or less on political
question grounds).
d) all of the above.

If I had to pick, my first choice is probably b, then c, then a.  I have
some sympathy for the willingness of courts to duck national security
issues, although not enough sympathy to encompass the amount of ducking we
get.

> possibility for future abuse; and second, if the Constitution is routinely
> circumvented, this diminishes its general power (as any law loses its

Again, what's the circumvention?  The administration, let us assume
honestly, believes that the spread of strong reliable crypto abroad is a
big threat;  if it happens it cannot be undone. They think it ("reliable") 
hasn't happened yet.  I'm inclined to think they're right about the facts
(see e.g. the thread on c'punx or coderpunx about lousy DES
implementations), so far. 

Is it "unconstitutional" to call this an emergency?  Judgment call.  I
think it's an abuse, but it is (1) routinized (EEA lapses have been dealt
with this way before and NO ONE COMPLAINED, not Congress, not the press,
not the courts, not the exporters, not the public); the administration
could reasonably think this was not a controversial thing to do; (2)
within the letter of the act as interpreted (too loosely) by the courts

So all three branches of government agree this is constitutional, and the
public hasn't complained.   Not exactly the foundation for a revolutionary
moment.  Rather, it is time to complain -- while understanding the
context.

> power when it is routinely flouted). The situation is all the more
> troubling because it receives so little publicity, outside of militant
> "extremist" groups (i.e. those that are crazy enough to believe that
> presidential power should be limited in accordance with the law of the
> land). When a president can take almost action under the excuse that it's

Recall that the President almost certainly couldn't do this if Congress
hadn't passed a statute ("the law of the land").  I still think that
Congress is the place where this should, and perhaps ultimately will, be
decided.

I also bet that if Congress did get sensitized to this issue ... they'd
respond by reactivating the EAA.  I don't get the feeling there is a
groundswell in Congress for abandoning export control (recall that the EAA
controls all dual use munitions -- including missile guidance systems).
This is why the courts are all too likely to allow it.  No one in
government wants to allow weapons parts to be freely exported.

[...]

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law |
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm here.