October 19, 2007

MY EARLIER POST ON ATRIOS AND EX POST FACTO LAWS got me thinking — some of the backlash against things that the Bush Administration has been doing probably stems from a lack of understanding of just how bad the law has always been in many areas, leading to a false impression that things represent shocking new departures from the Constitution when they really represent . . . er, . . well-settled departures from the Constitution. Search, seizure, and privacy law, of course, was already seriously damaged by the Drug War long before Bush ever took office, something that tends to be forgotten in discussions of FISA or the Patriot Act. But it goes beyond that sort of thing. Sweeping Executive authority, for example, is nothing new.

One of my favorite examples of this is a case I used to teach back when I taught International Business Transactions, a Ninth Circuit case called U.S. v. Spawr Optical Research, 685 F.2d 1076 (9th Cir. 1982). As far as I can tell, it’s not online for free anywhere. But here’s the gist: Spawr was charged with selling laser mirrors to the Soviet Union in violation of U.S. export law. It seemed as if Spawr had a pretty strong defense, in that the governing statute, the Export Administration Act, had expired at the time the sale took place.

But President Ford had issued an Executive Order extending the statute despite its expiration — yes, you read that right — and the Ninth Circuit held that this act by the President was within his legal powers under another statute, the Trading With the Enemy Act. Here’s an excerpt, with footnotes omitted:

In light of the pending expiration of the Export Administration Act of 1969 (EAA),[FN3] President Gerald Ford issued Executive Order No. 11940[FN4] on September 30, 1976 to maintain the EAA regulations forbidding the shipment of specified strategic items to certain foreign countries. He acted pursuant to s 5(b) of the Trading with the Enemy Act (TWEA), 50 U.S.C. app. ss 1-44. When the Order was issued and while it remained in effect, the TWEA empowered the President, during a presidentially-declared national emergency, to “regulate, .. prevent or prohibit … any exportation of … or transactions involving any property in which a foreign country … has any interest.”Id. at s 5(b) (1)(B).[FN5] Rather than declare a new national emergency to support the Executive Order, President Ford relied on the continued existence of national emergencies declared in 1950 by President Truman relating to the Korean War and in 1971 by President Nixon concerning*1080 an international monetary crisis.

The Spawrs exported laser mirrors for the second Soviet Order, however, after the EAA had expired and before it was reenacted on June 22, 1977,[FN6] when the sole basis for the regulations was the Executive Order. The Spawrs assert that the Order did not preserve the export regulations and, therefore, the Government lacked authority to prosecute them for their exporting mirrors for the second Soviet orders because: (1) there was no genuine national emergency, (2) the regulations were not rationally related to any emergency then in existence, and (3) the lapse of the EAA shows that Congress intended to terminate the regulations.

Former section 5(b) of the TWEA delegated to the President broad and extensive powers; “it could not have been otherwise if the President were to have, within constitutional boundaries, the flexibility required to meet problems surrounding a national emergency with the success desired by Congress.” United States v. Yoshida International, Inc., 526 F.2d 560, 573 (Cust. & Pat.App.1975) (footnote omitted). Wary of impairing the flexibility necessary to such a broad delegation, courts have not normally reviewed “the essentially political questions surrounding the declaration or continuance of a national emergency” under former s 5(b). Id. at 579.[FN8] The statute contained no standards by which to determine whether a national emergency existed or continued; in fact, Congress had delegated to the President the authority to define all of the terms in that subsection of the TWEA including “national emergency,” as long as the definitions were consistent with the purposes of the TWEA. 50 U.S.C. app. s 5(b)(3). In the absence of a compelling reason to address the difficult questions concerning the declaration and duration of a national emergency under former s 5(b), we decline to do so.

Moreover, the EAA apparently was allowed to lapse only because Congress could not resolve questions relating to the antiboycott provisions. See Arab Boycott Hearings on S. 69 and S. 92, Before the Subcommittee on International Finance of the Senate Committee on Banking, Housing and Urban Affairs, 95th Congress, 1st Sess. 1 (Senator Stevenson) (1977). The Spawrs have offered no evidence that Congress intended to dismantle the export controls.

In conclusion, even under the demanding scrutiny the Spawrs argue is appropriate because of the criminal nature of this case, *1082 it is unmistakable that Congress intended to permit the President to use the TWEA to employ the same regulatory tools during a national emergency as it had employed under the EAA. We, therefore, conclude that the President had the authority during the nine-month lapse in the EAA to maintain the export regulations.

So Congress had basically delegated all the authority within the Export Administration Act to the President anyway, allowing him to, in effect, enact a statute by issuing an Executive Order. And it doesn’t matter that Congress let the Export Administration Act expire, because the court “knew” that the expiration was for other reasons. And anyway, Congress had already given the President power to make whatever export laws he wanted to make via executive order regardless.

Worth noting, just in case you thought that sweeping Executive power in these areas was something new.

UPDATE: Reader Dan MacLaughlin emails:

“President Gerald Ford issued Executive Order No. 11940 on September 30, 1976.”

Was this, perhaps, on the recommendation of his then-Chief of Staff, Dick Cheney?

Not that I disagree with your larger point – lurid examples from the New Deal era are easy enough to come up with. But Cheney, at least, has been a consistent advocate of broad executive powers for many years, whether he was in the Executive Branch, Congress or private life.

Heh. I have no idea whether Cheney had anything to do with this decision or not. The answer is probably not, as it probably came from the Department of Commerce, Bureau of Export Administration (now the Bureau of Industry and Security). But I don’t really know.