Extra-Constitutional Inherent Powers

Self Evident Truths by Tolka Rover.

In case you were at work today and didn't have a chance to listen to Attorney General Gonzales' testimony, you can find coverage and a transcript at the Washingon Post (Reg'n Req'd).

For a more philosophical and rhetorical analysis, Orin Kerr makes an interesting point at the Volokh Conspiracy when he writes:

Gonzales [is] mixing up two different kinds of claims concerning "inherent authority" to conduct surveillance. The first kind of inherent authority is inherent in the sense that Congress does not need to create it for it to exist; the power exists even before Congress grants it.

The second kind of inherent authority is inherent in the sense that Congress cannot extinguish it; the power exists even after Congress tries to take it away.

It is true that there are a number of past precedents on the first type of inherent authority, but there is very little on the second type. My understanding is that Gonzales is using "inherent authority" in the second sense, but I don't think it's particularly helpful to cite precedents on the first type of inherent authority to support a claim of the second type of inherent authority. |VC|(emphasis added)

This post has created a great deal of discussion over at the Volokh Conspiracy.

Some feel that the distinction is specious while others feel there is little authority for either type of inherent power.

The comment that I found to be most insightful was by Lee Kovarsky, who points out yet a third way in which inherent authority seems to be used by the Bush Administration.

[A] third way in which the term inherent authority has been used over the last couple of weeks - to refer to something almost extra-constitutional, that exists in the presidents authority as commander in chief (which of course happens to flow from the constitution, but never mind consistency), which would allow him to do things that would otherwise be unconstitutional. |VC cmt|

The rest of the thread seems to turn into flame war between law professors and a DOJ employee...but I think the question of inherent power and its wellspring in the Constitution is something the U.S. Supreme Court will soon be asked to decide.

And that will be the first of many occasions when we will rue that Bush has installed two arch-conservative white men on the Court.