It Came from Beneath the Twilight Zone: Wiretapping and Article II Imperialism

This Article was written for the 2010 Texas Law Review Symposium: National Security, Privacy, and Technological Change. Using the example of federal government wiretapping, the Article examines “exclusivist” invocations of evolving U.S. history. Exclusivity is the view that the President has a constitutional power to circumvent statutory restrictions that interfere with his judgment as to how best to protect national security. In addition to arguing from text, structure, and founding era history, exclusivists sometimes invoke post-founding, or evolving history to defend their position. In the case of the Bush Administration’s warrantless wiretapping program, for example, the administration and its supporters argued that presidents since FDR had wiretapped in the absence of, or even contrary to, statutory authority. This Article first describes the logic of such arguments. It finds that exclusivists, often by implication though sometimes explicitly, discern a historical trend toward congressional acquiescence and presidential initiative, and deem this trend to reflect the natural capacities and hence respective legal prerogatives of the political branches. Alternatively or in addition, exclusivists deem this trend to reflect longstanding support by Congress and Presidents for an exclusivist reading of the Constitution. Second, the Article critiques these exclusivist arguments. The Article deems the former argument to rest on a fundamental mistake that runs throughout much exclusivist reasoning. That is, the argument conflates the President’s structural capacities with a legal prerogative to exercise those capacities in the face of statutory limits. The Article deems the latter argument historically inaccurate in the context of wiretapping. Congressional hearings and other legislative records indicate that exclusivity was virtually absent from political debates over wiretapping, even during wartime, until relatively late in the 20th Century. This second error, too, stems from an exclusivist tendency to conflate structural capacity with legal prerogative. Congress’ structurally driven inertia lends itself to inaction while the President’s structural capacities lend themselves to self-initiation. Exclusivists wrongly interpret this pattern as reflecting an affirmative embrace of exclusivity by the political branches. Finally, this Article makes the descriptive point that exclusivity has made remarkable strides in attaining public, political, and legal respectability over the past few decades. By increasingly influencing legislation, legislative history, and executive branch arguments in the past few decades, exclusivists have themselves become part of the story of the imperial presidency. constitutional law, separation of powers, federalism