When Is "Undersight" Unconstitutional?

If oversight is when a superior has the right to disapprove of an underling’s decision, what is “undersight”?

It’s my term for when an underling has the right to disapprove of a superior’s decision.? It’s not surprising to see principal-agent contracts with oversight provisions, but in two recent statutes the lame duck Congress has arguably imposed undersight provisions on the President acting as our commander-in-chief:

  1. A?major defense authorization bill, which “both chambers passed on the last day of Congress’s lame-duck session” included a “provision [that] forbids the transfer of any detainee to another country unless Defense Secretary?Robert M. Gates signs off on the safety of doing so.”
  2. The?”Don’t Ask, Don’t Tell Repeal Act of 2010” only becomes effective, inter alia, 60 days after the President “transmits to the congressional defense committees a written certification,?signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating [that] the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”


These acts are constitutionally troubling because they undermine?civilian control of the military.? It might be permissible for Congress to delegate a purely ministerial function to an underlying.? For example, it might be permissible for Congress to condition an appropriation on a non-discretionary accounting (such as when the “Strom Thurmond National Defense Authorization Act for Fiscal Year 1999?suspended DOD affirmative action in any fiscal year directly following a fiscal year in which DOD certified that it awarded at least 5% of its contract dollars to small disadvantaged businesses”).? But it strikes me as impermissible for Congress to give a non-civilian underling veto power of military policy.? And to be clear, our military leaders are constitutional underlings to the President because of the commander-in-chief clause.

These recent undersight provisions remind me of the wrong-headed reconstruction?amendment to the Army Appropriation Act, which required Andrew Johnsonto transmit all orders to military commanders through General of the ArmyUlysees S. Grant.? One way to avoid the constitutional difficulty is take the “commander” in “commander-in-chief” more seriously.? These three underling provisions on policy would not be troubling if the President could simply order his underling to make the requisite statutory certification.? But the intent of Congress in the GITMO, DADT and reconstruction examples seem to be to insert an underling as an independent decision maker.? It’s not surprising that Obama’s lawyers are debating whether to issue a signing statement “asserting that his executive powers would allow him to bypass the restrictions.”? One can make a principled distinction between a President resisting a?Congressional ban on torture and a President resisting a veto from a constitutional underling.


DCLawyer68

But the notion of the "underling" is hardly settled law.

Indeed, when conservatives advanced this notion of a "unitary executive" they get bashed to death for it.

Marie Burns

Right. The same sanctimonious legislators who think God wrote the Second Amendment are the ones who proposed this curb on the presidency. They don't seem to realize that the very purpose of the Second Amendment was to allay the fears of those who worried that the military might take over the country. So what do our modern gun-loving yahoo reps do? They write laws giving the military veto power over the civilian government.

Maybe the tea partiers idea of making legislators identify the clause of the Constitution they think sanctions their bill isn't as superfluous as it seems. Let's see them find the place where the Constitution says Adm. Mullen can override President Obama's decision.

The Constant Weader at www.RealityChex.com

Shawn

The premise of the question doesn't make sense. The president (executive branch of the US government) does not "oversee" Congress (the legislative branch). They are two legs of an equilateral triangle. The balance of power has always shifted back and forth between them to some extent, and it always will, as each branch maneuvers and jockeys to the will of the party that controls it.

james

@shawn - the article is not in reference to the constitutional relationship between the executive and legislative branches, it is to the fact that the legislative branch is requiring the secretary of defense and joint chiefs of staff to sign in ADDITION to the president. Since the president is a constitutional superior to the secretary and joint chief, then it seems like an unusual request of congress.

Tumbolian

The first doesn't undermine civilian control of the military, as SecDef is a civilian. In fact, both POTUS & SecDef constitute National Command Authority (NCA), meaning that the SecDef has independent authority to approve use of nuclear weapons.

JimFive

First, I think this sort of thing happens a lot more than most people expect and it isn't really a problem because all of these people hold their position at the pleasure of the President. He can say "Sign it or resign".

But in the examples I think there are two issues: In the first example, Congress is creating a scapegoat - someone below the President who can be help personally responsible. In the second example Congress is creating a bar to require that the law doesn't go into effect until the military states that it is ready for it.

On the face of it there is nothing wrong with either of these desires. A problem only occurs if there is a dispute between the President and his executive department, in which case we are back at "Sign it or resign."
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JimFive

George Scoville

I agree with what commenter Shawn asserts here. Congress and the presidency do not have a superior/subordinate relationship; rather, they have a lateral relationship (in the eyes of the law). Because this post begins with several false premises, it thus arrives at some weak conclusions.

Additionally, giving Secretary Gates veto power over some of the military's policy doesn't undermine civilian control over the military. Gates is a Cabinet-level civilian bureaucrat, serving at the pleasure of the president, who remains Commander-in-Chief.

Drill-Baby-Drill drill Team

A government employee has two roles, hopefully most of the time they are not in conflict:

1. Employee hired to perform a job.

2. Constitutional role that upholds the principles and practice of the US Constitution.

(3. Obey the Law. This provision is assumed.)

As a human being we are free to oppose any task that violates our conscience, morality or ethics. We MUST conscientiously object to moral catastrophes, .ie Nazi orders during WW II.

We may be fired. Or disowned by an unjust government. But we must live with our conscience for the rest of our lives. I would make a lousy soldier.

Ian Kemmish

Most countries have armies of highly trained civil servants to ensure that proposed legislation does not contain basic legal errors. At least, I assume that Professor Ayres is claiming some such error, using words like "permissible".

Has Professor Ayres written to them to ask their opinion on this point? If yes, what did they say? If no, why on earth not?

Ben Gubernick

As several people have pointed out already, as a legal matter the provisions aren't very troubling. The president still has the absolute authority to fire the secretary of defense and the joint chiefs chairmen.

That said, the provisions' optics are horrible. Civilian control of the military isn't preserved by courts. It's preserved by society's general consensus that the military does not control the executive branch. The harm caused by provisions like these is that they undermine this consensus. It's the same reason why George W. Bush's repeated decelerations that he'd do what the generals on the ground told him to do was worrisome.

Once people start to assume that decisions made by the executive branch are best left to the military, you're well on your way to not having a representative democracy anymore, regardless of what courts say.

Joshua

Another way to look at it:

Congress has the power to regulate the military. It desires to pass laws conditionally, i.e. on the condition that they won't have adverse consequences according to the experts. So, in effect, they are exercising their right to regulate (though not oversee) the military but only in a conditional sense.

Similarly, PAYGO doesn't undermine the power of the executive with the undersight of the head of the CBO (and JCT?) but instead their determination is a pre-condition of a bill passing. In DADT, we simply find post-conditions instead.

Eric M. Jones

I wish Professor Ayres wouldn't start inventing words like undersight.

Frunobulax

More troubling to me, as with the omission of a severability clause in the Health Care act, is why no one bothers to read these statutes before they are passed. The easy argument against these provisions is that, irrespective of legislative intent, the Executive, as Gates's superior, would have constitutionally presumptive power to sign off in the Secretary's stead

DullSheep

great blog, well done NyTimes! We follow you :-)

Mike B

It seems that Congress is trying to claw back some of that executive power that they handed over willy nilly during the Bush administration. In any event the President is empowered to force the resignation of any underling he or she chooses so it is more of a speed bump than a veto. In both of these cases if the President is unable to get the concurrence of a member of his own cabinet or military it suggests that there is a real problem somewhere in the works.

Last I checked our government is full of small impromptu checks and balances that prevent the President from making all sorts of decisions by fiat. The military is a bit of a special animal where in the President under some interpretations has the final say as commander in chief, but still has some restrictions imposed by congress, like the original DADT law. in the absence of an independent governing body for the military such minor requirements merely try to institute some basic degree of thoughtfulness in the decision making process to about decisions being made my pure politics.

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Xian

The reason for 'undersight' is quick reaction to correct 'uninetended consequences', though giving an underling override power over their superior though strange is something that should become more common, not in a singular sense but a colaberative sense.
Give democratic right to choose the best boss to the workers, it's what we do now, imagine a CEO choosen by the workers & stockholders, all the employees vote for their supervisors, their supervisors, vote for their supervisors, ad nauseum, till we reach the board of directors, We rely on the wisdom of the board to provide several canidates for everybody to vote on as their leader for the next term say 2years, with ability for special session when necessary.

Nick

The "undersight" is legislatively unnecessary since any congress that felt it important surely has enough power to revoke the law in the event that the president improprely applies it (which is the goal of the clauses to begin with).

I think that rather than being a legislative attempt at "undersight" of the executive, it's a attempt to pass the buck. In effect, the legislature is ceeding their authority to pass legislation to the executive (in the form of the Sec Def), so perhaps they are undersighting themselves.

Michael Froomkin

I don't see the problem with requiring the Secretary of Defense to certify something as a condition of an exercise of executive power unless that power is a plenary power constitutionally committed to the President (e.g. the Pardon power). First, contrary to Ian's suggestion above, he's a civilian. Second, he serves at the pleasure of the President. So the President can fire him if he won't give the certification a President wants. Yes, there's a political cost, but that's the point.

We have all sorts of rules -- most of the Administrative Procedures Act -- that condition executive power on proper actions by underlings. These are good things.

The second example is more troubling in that it requires a certification by a military officer which I agree is a bad idea. Even so, I think the same Constitutional logic applies: so long as the President can relieve him of his post (He can, can't he? He's Commander-in-Chief, after all.) and replace him with an acting someone else, at the end of the day the President's constitutional powers remain intact.

The potential Constitutional problems arise only when authority like this is given to anyone who has some formal degree of insulation from removal.

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