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Thereafter, in response, the President issued Executive Order 999 (“the Order”). The Order authorizes the Secretary to issue “National Security Requests,” which require businesses to produce the personal and financial records of their customers to the FBI without a warrant. The Order further authorizes the Secretary to require state and local law enforcement agencies to assist the FBI in obtaining the records.
Concerned about acts of terrorism that had recently occurred in State X, the State X Legislature passed the “Terrorism Prevention Act” (“the Act”), requiring businesses in State X served with National Security Requests pursuant to the Order to produce a copy of the records to the State X Department of Justice.
1. Is the Order within the President’s authority under the United States Constitution? Discuss.
2. Assuming the Order is within the President’s authority, does the Order preempt the Act? Discuss.
3. Assuming the Order is within the President’s authority and does not preempt the Act, do the Order and the Act violate the Fourth Amendment to the United States Constitution on their face? Discuss.
This answer provided by Cal Bar Tutorial Review, 800-783-6168, cbtronline.com.
WHETHER THE ORDER IS WITHIN THE PRESIDENT’S AUTHORITY
Power as Chief Executive Over Domestic Affairs
Generally, the entire executive power is vested in the President by Article II, Section I of the Constitution. His authority over domestic or internal affairs within the United States as the chief executive is less clear.
Although the President does have some power to direct subordinate executive officers through executive orders, the validity of such an order is subject to these guidelines: (1) Where the President acts with the express or implied authority of Congress, his authority and actions are likely valid, (2) Where the President acts where Congress is silent, his action will be upheld as long as the act does not usurp the powers of another branch of government or prevent another branch from carrying out its tasks, (3) Where the President acts against the express will of Congress, he has little authority and his action is likely invalid.
Applied to the facts in our case, the Order could be construed as beyond the President’s authority if its underlying intent is narrowly viewed as applying only to domestic affairs within the United States and not the wider issue of protecting the nation from the external threat of terrorism.
Given the fact “Congress rejected the proposal” when the President initially proposed the enactment of legislation embodying the intent of his subsequent Order, a strong case could be made that the President’s act in authorizing the Order was outside of the express or implied authority of Congress, that Congress was not silent on this matter, and even that the President’s act was against the express will of Congress.
While the President would contend that the Order was valid in directing the Secretary through the FBI as subordinate executive officers to issue the “National Security Requests” requiring businesses to produce the personal and financial records of their customers, Congress would counter that the Order effectively usurps the power of the Judicial branch from carrying out its task of determining the constitutional validity of each Request on a case-by-case basis.
Power as Chief Executive Over External Affairs
Although the President lacks the power to declare or initiate a “formal” war, he does have extensive military powers granted to him as commander in chief of the armed forces and federalized militia under Article II, Section 2 in actual hostilities against the United States without a congressional declaration of war. Although Congress under its power may limit the President to enact military appropriations every two years, its authority to construct the President’s acts over domestic affairs impacted by military necessities is otherwise limited.
Assuming there are actual hostilities against the United States underlying the intent of the President’s Order “to protect the nation against terrorism,” the President would argue that the Order was entirely within his authority pursuant to the military powers granted to him as commander in chief. As discussed above, he would also contend that his authority to direct subordinate executive officers to implement the Order — through the Secretary and FBI — is also within his authority. The President would also urge that the Order’s mandate “requiring state and local law enforcement agencies to assist the FBI in obtaining the business records” was additionally within his authority pursuant to his military power to protect the nation.
Absent a showing of actual hostilities, Congress would be left to argue the less tenable position that the President had exceeded the scope of authority granted to the Executive Branch through the military power. Or, as discussed above, that the Order exceeded the President’s authority because it impacted only domestic affairs.
WHETHER THE ORDER PREEMPTS THE STATE X ACT
Supremacy Clause
Most governmental power is concurrent, belonging to both the states and the federal government. Thus, when the federal government and the states pass legislation on the same matter, the Supremacy Clause provides that the federal law is supreme so that the conflicting state law is rendered void.
Although the Order is not congressional legislation — but assuming it is within the President’s authority — the Supremacy Clause would preempt the State X Act in the event any of the following three criteria are applicable: (1) Where there is a conflict between state and federal laws, (2) where the state Act prevents the achievement of a federal objective, (3) where the State X Act is preempted by the Supremacy Clause.
First, the State X Act could be argued to create an actual conflict with the federal Order because it commands conduct inconsistent with that required by the Order in that it requires businesses to produce a copy of their records to the State X Department of Justice. In contrast, the Order authorizes the Secretary to require state and local law enforcement agencies to assist the FBI in obtaining the records.
Second, an argument may be made that the Act interferes with the achievement of the federal objective to protect the nation from terrorism — even though the Act was enacted for a similar purpose as the Order — because it works to deliver the business records to a different federal entity. Further, that the Order’s objective is also frustrated because the Act requires the businesses themselves to produce the requested information rather than the FBI obtaining the records.
Finally, the State X Act may also fail under the Supremacy Clause so that it should be preempted because the Order appears to “occupy” the entire field of national terrorism protection. This is especially evident given the fact the Order has created a mechanism to enforce the law — through the Secretary and FBI — rather than through State X’s procedure for doing so.
WHETHER THE ORDER AND ACT ON THEIR FACE VIOLATE THE FOURTH AMENDMENT
Fourth Amendment
The Fourth Amendment provides that people should be free in their persons from unreasonable searches and seizures. Here, a search may be defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy. A seizure is defined as the exercise of control by the government over a person or thing. What is reasonable under the Fourth Amendment depends on the circumstances — with some searches and seizures reasonable only if the government has first obtained a warrant and others reasonable without a warrant.
The Order
Applied to the facts of our case, a strong argument may be made that the Order violates the Fourth Amendment on its face because it unambiguously authorizes the search and seizure of business records without a warrant. This position is compounded because the Order requires state and local law enforcement agencies to comply with any request made by the Secretary. Absent from the language of the Order is a mechanism that would allow a neutral and detached magistrate to review the evidence to make a determination that a warrant should issue — such as is the case in authorizing electronic surveillance for domestic organizations.
While the procurement of business records by the federal government through the “National Security Request” procedure certainly qualifies as governmental intrusion for the purpose of exercising control over private records, there is no way to determine from the Order’s language whether it is reasonable in the absence of a warrant. Without such language, the constitutionality of the Order as invalid on its face under the Fourth Amendment seems clear. The government would need to more precisely clarify the “no warrant” aspect of the Order’s language — and especially in identifying national terrorism criteria. The government’s other argument would be that the interests of national security demands expedience and security that would be impeded by review of the evidence through the magistrate process.
The Act
In contrast, the State X Act does not seem to be violative of the Fourth Amendment on its face because it does not authorize the procurement of the business records without a warrant. In fact, the Act merely requires any business served with a Request to submit their records to the State X Department of Justice. This would seem to satisfy the reasonableness requirement of the Fourth Amendment in allowing a review of the business record evidence by the State Justice Department so that they may then make a determination as to whether a search warrant should be obtained.
