Quis Custodiet Ipsos Custodes? Surveillance and Separation of Powers at the Founding
Slush funds, propaganda in the foreign press, letter-opening campaigns, and plots to overthrow foreign governments. Are these the actions of an imperial President intent on flouting the structure of the Constitution to accomplish the political ends of any given moment? No. They were the actions of our first Presidents, men who—though they had a personal distaste for “the business of intelligence”—believed that the chief executive of the young American republic should possess every power necessary to secure its existence. Though many in the Founding generation fought and died to “secure the [b]lessings of [l]iberty” for themselves and their posterity, their leaders did not hesitate to take dramatic action when they thought it necessary to advance American interests at home and abroad.
Despite modern assertions to the contrary, American presidents from Washington to Biden have always seen the need for—and have always interpreted the Constitution to provide—authority to act unilaterally to protect the interests of the United States against enemies foreign and domestic. One such authority? The ability to surveil for national security purposes.
Depending on the surveillance program or the era of American history in mind, surveillance can mean different things to different people. Therefore, defining the term at the outset is prudent. For purposes of this essay, executive surveillance refers to the authority—whether directed at targets at home or abroad—to initiate, structure, prioritize, and execute surveillance programs as a constitutional entitlement of the executive branch without authorizing legislation from Congress. It is the contention that surveillance is, by nature, an executive act, and discretion to conduct lawful surveillance is rightfully lodged with the President instead of the Congress, the court system, or the state governments by the Constitution—for it surely must vest somewhere.
It is equally important to understand what this essay is not. Here, I make no pretension of analyzing the complicated relationship between executive surveillance and the scope of the Fourth Amendment, or for that matter, any other constitutional restraint. The Fourth Amendment’s original public meaning is hotly debated, and depending on the view taken, it may externally constrain the President’s Article II authority in more or less substantial ways. This essay explicitly puts those debates aside, proceeding instead on the reasoning that—regardless of what the Fourth Amendment actually means—it is imprudent to consider an external limitation to any given authority before its scope and source are delimited on their own terms.
Abstracting from the thorny problems caused by the original public meaning of the Fourth Amendment clears the debate stage for a separation of powers showdown between Articles I and II, creating an analytical framework than can be used to more easily assess whether Congress, and not the Constitution itself, has any authority to limit the executive surveillance power. In the present work, my much more modest objective is to exhaustively canvas the relevant legal history with the goal of showing that, as a matter of original meaning, the executive branch has a much better claim to the surveillance powers than the legislative branch does. The implications of such a claim can and should be exposited in further academic work.
The answers to these fundamental questions of executive power have weighty policy consequences. The United States has entered the twentieth year of its formal war on terror, and as boots leave the ground in the Middle East, the executive may soon be unable to rely on the AUMF to justify its snooping. It faces many future decades of great power competition with China and a present wave of domestic faction and violence at home. To meet these challenges, the United States relies on an undertheorized and often misunderstood executive branch: As has been noted elsewhere, constitutional scholars have yet to agree even on the constitutional sources of executive authority, let alone the extent of authority those sources provide.
Building on the unitary theory of the executive first offered in the academic context by Steven Calabresi and Kevin Rhodes and expounded in the context of foreign affairs by Sai Prakash, Michael Ramsey, and Gary Lawson, this essay provides an analysis of the historical pedigree of executive surveillance in hopes of concluding where and to what extent the President is constitutionally empowered to surveil on the basis of his office alone. Specifically, it seeks to answer three questions: (1) where, if anywhere, does the Constitution grant the President authority to conduct surveillance and (2) if such an authority exists, what does the historical record before, during, and after the Revolution have to say about its use.
To accomplish these tasks, Part I examines each of the possible textual hooks in Article II that might justify a warrantless surveillance power and concludes that the Vesting Clause is the most likely candidate. Part II.A makes the argument that the Vesting Clause does convey some unenumerated powers, and Part II.B concludes that, as a matter of original public meaning, the Vesting Clause vests the surveillance power with the President and not Congress. Part III examines contemporaneous developments in privacy law to show that it was the Fourth Amendment (and, impliedly, not any intrinsic limitation on executive power) that acted as a specific response to perceived oversteps of the English government. This is followed by a brief conclusion.
