"Activist" Executive?

In his speech last night, President Bush said that he was doing everything within his power to fight terrorism. I believe that he also said that the NSA taps he ordered were within his power under Art. II of the Constitution, presumably the commander in chief powers.

Two things struck me: does he have the power and is he an "activist" executive?

The first thing that jumped in my mind was a case I reviewed while studying for exams last night, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), where it was held that the President did not have the authority to order the Sec. of Commerce to take over and operate steel mills. The majority opinion gave a comparative analysis of the competencies of the legislature and the executive and found that there was nothing inthe Constitution that gave tea President that power. Specifically, the order to take over the steel mills could not be supported by the President's role as Commander in Chief. The framework of the Constitution could not support it either because it limits limits the executive's legislative powers to recommendations and vetos. The Court reasoned that takings were legislative functions.

Justice Jackson, in concurring judgment, gave an opinion Justice Scalia could be proud of. In it, he attacks, among other things, the appeal to "inherent, "implied," "incidental," "plenary, "war," or "emergency" powers. He continued:

The vagueness and generality of the clauses that set forth presidential powers
afford a plausible basis for pressures within and without an administration for
presidential action beyond that supported by those whose responsibility it is to
defend his actions in court. The claim of inherent and unrestricted presidential
powers has long been a persuasive dialectical weapon in political controversy.
While it is not surprising that counsel should grasp support from such
unadjudicated claims of power, a judge cannot accept self-serving press
statements of the attorney for one of the interested parties as authority in
answering a constitutional question, even if the advocate was himself.

If Congress had passed an act granting the power to take steel mills, then it would have been within the executive purview. In the NSA wiretaps case, Pres. Bush seems to try to gain validity through the fact that he advises members of Congress of what is going on and has 45-day reviews. Unfortunately, that is not enough. The executive does not gain powers simply because the legislature has failed to act; there must be an affirmative empowerment--an act of Congress.

Pres. Bush may have recourse in his War Powers, but this relies on the US being in a constant state of "emergency" as long as there are terrorists who want to harm us. How long is that? How immediate is the threat?

The other "activist" prong that I found interesting is similar to both the majority and Justice Jackson's opinions in Youngstown Steel. First, the most common critique of the Judiciary is that it "legislates from the bench" too often, and that law-making is reserved to Congress. This same critique applies to a strong executive who may "legislate from the oval office." The Court is entrusted with protecting the Constitution and the citizens' rights under it, and a strong Court will expand its power as far as possible in that arena rather than use restraint. The executive is entrusted with the military and protecting citizens' lives. A strong executive will expand his power as far as possible in that arena rather than use restraint. Should there be a strong movement against "activist executives" in conjunction with the attacks on the judiciary?

The second way that Pres. Bush (and most executives in general) is like a so-called "activist court" is in not strictly interpreting the words of texts. The Court found a penumbra of rights implied by and necessary to the Fourteenth Amend. Similarly, Pres. Bush wants to find a penumbra of powers under the Commander in Chief or War Powers. Should he pay more attention to the four-corners of the Constitution as he wants Supreme Court Justices to?