Statement by Louis Fisher presented to the Senate Committee on the Judiciary for hearings on "Restoring the Rule of Law" (PDF, 67KB), September 16, 2008. In previous periods of emergency and threats to national security, the rule of law has often taken a backseat to presidential initiatives and abuses. This statement explains some basic steps for returning to the rule of law and constitutional government, including the hazards of state secrets, secret law, signing statements, misuse of executive privilege, and dependence on the illusory claim of "inherent" powers and the false "sole organ" doctrine. The rule of law is always at risk when Congress and the judiciary defer to claims and assertions by executive authorities and fail to protect the system of checks and balances.
Louis Fisher, "Extraordinary Rendition: The Price of Secrecy" (PDF, 319KB), 57 Am. U. L. Rev. 1405 (2008). Assertions of inherent power after 9/11 led to the practice of "extraordinary rendition," claiming that the President possesses independent and plenary authority to seize individuals and transfer them to other countries for interrogation and torture. This article analyzes the source of authority for extradition, rendition, forcible abduction, and extraordinary rendition. For all categories except the latter, the individual is taken to a country for trial and given access to regular procedural safeguards. The article concludes by examining recent litigation on extraordinary rendition.
Louis Fisher, "Treaty Negotiation: A Presidential Monopoly?" (PDF, 95KB), 38 Pres. Stud. Q. 144 (2008). This article examines the claim by Justice George Sutherland in United States v. Curtiss-Wright (1936) that the President makes treaties with the advice and consent of the Senate "but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it." This statement was dicta and extraneous to the issue before the Court, but it is also at odds with Senate history and Sutherland's own experience as a U.S. Senator from Utah. Senators (and Representatives) have often been involved in the negotiation of treaties.
Statement by Louis Fisher, appearing before the House Committee on the Judiciary, "Constitutional Limitations on Domestic Surveillance" (PDF, 111KB), June 7, 2007. This testimony reviews what happened in the 1960s and 1970s with regard to domestic surveillance by the executive branch, leading to federal courts rejecting the theory that the President has "inherent" constitutional authority to engaged in warrantless domestic surveillance. House and Senate hearings prepared the way for enactment of the Foreign Intelligence Surveillance Act (FISA) of 1978. The balance of the testimony analyzes the legal defense by the Bush administration for the Terrorist Surveillance Program (TSP) conducted after 9/11, including statutory and constitutional justifications and briefings to the "Gang of Eight."
Louis Fisher, "Signing Statements: Constitutional and Practical Limits" (PDF, 179KB), 16 William & Mary Bill of Rights J. 183 (2007). May a President, through a signing statement, nullify or dilute a bill that both houses of Congress had just passed and presented to him? Does that assertion of authority give him, in effect, an item veto? What happens to the President's constitutional obligation to "take Care that the Laws be faithfully executed"? If signing statements replace Congress-made law with Executive-made law and treat a statute as a mere non-binding starting point for what executive officials want to do, the rule of law is undermined. The threat is especially grave when the implementation of a law is not made public, as in interrogating detainees.
Louis Fisher, "Presidential Inherent Power: The 'Sole Organ' Doctrine" (PDF, 95KB), 37 Pres. Stud. Q. 139 (2007). The executive branch often relies on the "sole organ" doctrine to define presidential power broadly in foreign relations and national security, including assertions of inherent executive power that is not subject to legislative or judicial constraints. The doctrine draws from a statement by John Marshall when he served as member of the U.S. House of Representatives in 1800: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." In dicta in the case of United States v. Curtiss-Wright (1936), Justice George Sutherland took Marshall's statement out of context to advocate an independent, plenary, exclusive, and extra-constitutional power for the President, but Marshall made no such claim in his speech or in his public service as Secretary of State and Chief Justice of the Supreme Court.
Louis Fisher, "Invoking Inherent Powers: A Primer" (PDF, 124KB), 37 Pres. Stud. Q. 1 (2007). At various times in American history, Presidents have claimed "inherent" powers to take certain actions in periods of emergency. President Truman's seizure of steel mills in 1952 is one example. Another is the claim by President Nixon that he could order domestic surveillance. Those claims were struck down in court. This article provides an overview of inherent powers and focuses particularly on its application during the presidency of George W. Bush to military commissions, detaining "enemy combatants," the "torture memos" prepared by attorneys in the Justice Department, extraordinary rendition, and NSA eavesdropping.
Louis Fisher, "The 'Sole Organ' Doctrine" (PDF, 334KB), August 2006, a paper prepared for the Law Library as part of a series of studies on presidential power in foreign relations. The paper provides a detailed examination of the "sole organ" doctrine made popular by Justice George Sutherland in his opinion in United States v. Curtiss-Wright (1936). The study explains why his use mischaracterizes what John Marshall said in a floor speech in 1800, while a member of the U.S. House of Representatives, and includes critiques and analyses by scholars and judicial citations to "sole organ." Although the Supreme Court has at times described the President's foreign relations power as "exclusive," it has not denied to Congress its constitutional authority to enter the field and reverse or modify presidential decisions in the area of national security and foreign affairs.
For more information on the United States Constitution see:
- Constitution of the United States: World Digital Library
- Constitution Day and Citizenship Day
- Creating the United States Constitution
- Guide to Law Online: United States Constitution
- Legal Blawgs Archive: Constitutional Law
- U.S. Constitution: Primary Documents of American History
Last Updated: 05/01/2015