Skip to content
WASHINGTON – Today, Congressman Jim Sensenbrenner sent a follow-up letter to United States Department of Agriculture Secretary Tom Vilsack regarding his lack of response to Sensenbrenner’s oversight questions about blender pumps. Sensenbrenner also raised new concerns over the mislabeling and selling of E-15 at blender pumps. 

Dear Mr. Secretary:

I write to you regarding my letter dated July 28, 2015.  I requested a response by August 31, but to date, I have not received one.  

Your response to my questions is very important to me and thousands of my constituents.  It is troubling that you failed to respond, and instead decided to announce additional “investments” in the Biofuel Infrastructure Partnership (BIP).  Please respond to my letter before the end of this year, and also address some new concerns about blender pumps that have been brought to my attention by the Environmental Protection Agency (EPA).  

The EPA has informed my office that there are problems with gasoline sampling from blender pumps.  To date, the EPA has not informed me of how to resolve the problems that were discovered when collecting samples from these pumps.  

Additionally, there is evidence that some retailers have been relabeling and selling E-15 at blender pumps.  The EPA has been unable to determine if it is legal to relabel and/or sell E-15 as a flex fuel.  

These are very serious concerns that need to be addressed by the EPA, the USDA, and the National Institute for Standards and Technology (NIST).  NIST may need to evaluate the mechanisms in the blender pumps that may be responsible for missampling.  I request that you stop funding for the BIP until Congress, consumers, and retailers are certain that blender pump sampling is accurate, and the legality of relabeling and selling mid-level ethanol blends as flex-fuels is determined.  

In addition to the questions raised in my July 28 letter, please answer these additional questions before the end of this year.

• Were you aware that there were sampling problems at blender pumps?
• Do you know the cause of blender pump misssampling?
• Were you aware of retailers re-labeling and selling E-15 as a flex fuel?  
• Will you halt your Biofuel Infrastructure Partnership programs until these issues are addressed, and Congress, consumers, and retailers are confident that fuel sampling is accurate?

Please be more prompt in your response to this letter.


Member of Congress
There are many different conversations happening in regard to the nation’s safety and security in light of the recent terror attacks in San Bernardino and Paris. Unfortunately, in a heated political climate and never-ending news cycle, facts are easily lost or misconstrued. 

But when it comes to our country’s security, it’s critical to get the facts straight.  

I authored both the PATRIOT and USA FREEDOM Acts, and as the national spotlight shines on the important issue of national security, I want to set the record straight on a few key facts that are often misrepresented in the mainstream media. 

1. Bulk data collection did not effectively prevent recent terror attacks
Select members of Congress and various media outlets claim that had the government continued mass data collection, it would have been able to identify and thwart terrorist activities. However, bulk data collection was still in place at the time of the Boston Marathon and Paris attacks, as well as the lead up to the shootings in San Bernardino, making those claims false. 

2. USA FREEDOM does not end bulk data collection
USA FREEDOM does not take away the ability to collect metadata from terror suspects. It stopped the bulk collection of innocent Americans’ records and established an efficient process for obtaining records from suspects, requiring the government to obtain a lawful order to access information. This respects citizens’ privacy while maintaining the highest standard of national security.

3. Phone companies have, and will continue to, collect phone records
Phone records are collected and stored by phone companies for business purposes. The length of time they decide to maintain these records is up to each individual company. However, it’s important to note that all records are still available for intelligence purposes through a more responsible and Constitutional process.

Debates on national security measures can be convoluted, but the main fact to remember is that USA FREEDOM is carefully balanced, bipartisan legislation that gives intelligence agencies the tools they need to keep America safe. Any claims to the contrary are baseless. Political posturing does not make this country safer and it isn’t a serious approach to the challenges we face. 
More than six months ago, Wisconsin Republican Jim Sensenbrenner won a broad, bipartisan victory in his push to reform the Patriot Act.

Now, he's fending off claims by one of his party's leading presidential candidates that his legislation weakened national security.

Sensenbrenner calls those claims by Florida Sen. Marco Rubio "political posturing."

At issue: the National Security Agency's mass collection and storage of phone "metadata" — records of whom Americans call and when (not the content of those calls).

That program "was not effective" in preventing terrorism, Sensenbrenner said in an interview Wednesday. "It didn't stop anything. Why should innocent Americans' phone records be grabbed by the government when it's of no use at all?"

In the aftermath of the Paris and California attacks, Rubio has sponsored a bill to restore the NSA program and has stepped up his criticism of Sensenbrenner's legislation, known as the USA Freedom Act.

"If, God forbid, there's an attack tomorrow morning in another major U.S. city, the first question everyone is going to have is: Why didn't we know about them, and how come we didn't stop it?" Rubio said Sunday night on Fox News. "And the answer better not be: Because a tool we once had that could have allowed us to identify them is no longer available to us. And there are members of my party that through their votes, and by siding with isolationists and people who hold on to these theories that are false, have put potentially our nation in a position where we can't gather this information any longer."

Rubio has sought to use the issue against a GOP presidential rival, Texas Sen. Ted Cruz, who voted for Sensenbrenner's bill.

"He's wrong," said Sensenbrenner, who hasn't endorsed in the GOP presidential race.

"I have worked on the issue since 9-11...When the NSA was asked to provide which terrorist plot in the U.S. was stopped as a result of the metadata collection, there was no evidence any of it was stopped, including the Boston Marathon bombing," said Sensenbrenner, who was the lead author of the original Patriot Act in 2001.

Supporters of the mass surveillance program are "still operating under the assumption that everything that the NSA does is good and is effective and helps protect Americans," said the lawmaker.

Sensenbrenner notes that the NSA program was still in effect during the run-up to both the Paris and California attacks. It didn't actually end until Dec. 1.

A White House official said Wednesday that the data was only used to investigate individuals after a suspect had been identified, so it would not have come into play in the San Bernadino case, where the perpetrators were not under suspicion before that attack.

And the data will still be available in terrorism investigations. The primary difference now is that the records will be kept by the phone companies, not stored by the government, and investigators will get a court order to obtain them when needed.

"If the U.S. government wants to access it, they can (do it) as soon as you have a terrorism suspect," deputy national security adviser Ben Rhodes told a small group of reporters when asked about the issue at a briefing. "We don't see any need to change the reform" that was enacted this past summer.

While Sensenbrenner's bill passed both houses this summer with huge, bipartisan majorities, the issue still sparks divisions within the GOP over the proper balance between civil liberties and national security.

Among those siding with Rubio is presidential hopeful and New Jersey Gov. Chris Christie, who said this week: "The end of the metadata program has made America weaker and more vulnerable. The San Bernardino terrorist attack should prove to everyone just how exposed we are as a nation."

Gov. Scott Walker supported the NSA's bulk data collection when he was running for president earlier this year, a position that drew fire from Sensenbrenner. Wisconsin Republican Sen. Ron Johnson, chairman of the Senate Homeland Security panel, also favors restoring the program. Johnson voted for Sensenbrenner's bill last June but says he did so because it renewed other parts of the Patriot Act that he supports.

But there doesn't appear to be a groundswell in the GOP-controlled Congress to reinstate the mass surveillance program.

The chairman of the House panel on homeland security, Texas Republican Michael McCaul, said the warehousing of phone records by the NSA "gave a lot of Americans a lot of heartburn."

A former prosecutor, McCaul said the data is still accessible when the government needs it.

"I don't see the USA Freedom Act being rescinded," he said.

View this article online here.

Privacy is not the problem

December 9, 2015

In the wake of last month’s monstrous terrorist attacks in Paris and the recent massacre in San Bernardino, national security hawks wasted no time in declaring their verdict of who was truly responsible. The USA FREEDOM Act and encryption are the culprits. They don’t offer evidence to back their statements—instead, they rely on a preconceived narrative of truthiness.

Presidential candidate Jeb Bush called for the restoration of Section 215 of the PATRIOT Act "I think we need to restore the metadata program, which was part of the Patriot Act… I think that was a useful tool to keep us safe and also to protect civil liberties.” Not to be outdone Sen. Marco Rubio (R-Fla.) slammed rival presidential candidate Sen. Ted Cruz (R-Texas) for supporting the USA FREEDOM Act, which Rubio argues “leaves Americans vulnerable.”

This in spite of the fact that both the Director of National Intelligence, James Clapper and Attorney General Loretta Lynch penned a joint letter endorsing the USA Freedom Act explaining “We believe that it is a reasonable compromise that preserves vital national security authorities, enhances privacy and civil liberties and codifies requirements for increased transparency.”
USA FREEDOM is not without its flaws, but its drafters aimed to strike balances between national-security concerns and real issues centering on government overreach and intrusiveness. Even the author of the PATRIOT Act, Rep. Jim Sensenbrenner (R-Wis.) recognized that Section 215 went too far and was ineffective which is why he penned the USA FREEDOM Act to curtail an obvious abuse of the intelligence community.  Worse, it’s indisputable that the metadata program of Section 215 was never successful in disrupting a terrorist plot.

Sensenbrenner hasn’t changed his tune, despite the attacks. Instead he has continued to call for a balanced approach to the serious national security threats facing us, blaming fellow Republicans for hyperbole saying, “these horrific actions are no excuse for the knee-jerk reactions, political platitudes, and fear mongering we've been experiencing from some of my colleagues in its aftermath.”

Efforts to undermine the USA FREEDOM reforms shouldn’t be taken seriously. The metadata program, which is domestic, would never been used to ensnare a plot in Europe. Additionally, we know for a fact that these terrorists were already under surveillance by European intelligence authorities but steps were not taken to actually apprehend them.

This is a scenario we in America understand. Whether it was the 9/11 hijackers or the Boston Marathon bombers, there have been times when a weak link in the chain between intelligence community surveillance and law enforcement halted efforts to catch the bad guys. Instead of creating a bigger haystack to find the needle, but following Constitutional methods to catch those who seek ways to carry out terrorism. This year’s surveillance reforms did just that.

Instead of waiting for facts from the French-led investigation Senate Intelligence Committee Chairman, Richard Burr (R-N.C.) jumped to the conclusion telling the press “It is likely that end-to-end encryption was used to communicate between those individuals in Belgium, in France, and in Syria.” This notwithstanding facts that French authorities found unencrypted SMS text messages between the perpetrators. (It’s not even clear yet that there’s a Syrian connection to the attacks.)

Over the past few months there has been a revamped effort to curtail encryption. This debate was highlighted by FBI Director James Comey’s hearing in July where he called for a “golden key” that will enable the government to access encrypted information. While at the time his plea did not move the needle for legislative action, in the aftermath of Paris momentum is stirring to enable government entities to have backdoor access into encrypted communication.

The rationale used by national security hawks is that terrorists could potentially encrypt their messages making it impossible for monitoring. While it is possible that terrorists could use encrypted messages, it is a benefit that everyday Americans also enjoy in every facet of their lives. Online banking, establishing a secure Internet connection, purchasing a product on Amazon, or even missionaries helping religious minorities in a far-off nation are all enabled because of strong encryption. Opening a backdoor wouldn’t just help the intelligence community but would also expose users to vulnerabilities from hackers and other entities wishing to do harm. Every right we have is a right that bad guys might use against us, but that’s not an argument for security “backdoors.” And when truly secure encryption is outlawed, only outlaws will have truly secure communications. That’s a crazy outcome.

The old adage that a good politician never lets a crisis go to waste might raise your profile but it also makes for terrible policy. Instead of undermining Internet security and the privacy of Americans policymakers should work with tech and privacy experts to discern the right, balanced approach to handling of these delicate issues. 

Leamer is outreach manager and a senior policy analyst at the R Street Institute, a free-market think tank.

View this article online here.
WASHINGTON, D.C. – Today, Congressman Jim Sensenbrenner released the following statement:

Congressman Sensenbrenner: “Political posturing does not make this country safer and it certainly isn’t a serious approach to the challenges we face. The bulk collection of innocent Americans’ data is not only a government intrusion, but it also overwhelms intelligence agents, increasing the likelihood they miss crucial information. Further, the promulgation that the terrorist onslaught in Paris could’ve been prevented under the NSA’s overbearing bulk data collection program is fundamentally false. It was still in effect at the time of the Boston Marathon and Paris attacks, as well as the lead up to the attacks in San Bernardino. USA FREEDOM is carefully balanced legislation that gives intelligence agencies the tools they need to keep America safe. Claims to the contrary are fear mongering, plain and simple.”
A lead author of the U.S. Patriot Act has some advice for European officials as they wrestle with the balance between personal liberties and security in the wake of the Paris terror attacks.

“The cautionary tale is that democracy depends upon a respect for civil liberties,” Jim Sensenbrenner, the former chairman of the House Judiciary Committee, told POLITICO this week. “In France this goes all the way back to their revolution, which was right after ours and the Declaration of the Rights of Man following that revolution.”

He should know. The 18-term Wisconsin Republican, who helped push through President George W. Bush’s post-September 11 sweeping law enforcement and surveillance legislation in 2001, has long since concluded that the U.S. intelligence establishment went far beyond its mandate. That’s why after the Snowden revelations of 2013, he led the charge to scale back the Patriot Act and end the National Security Agency’s bulk collection of data earlier this year, resulting in the USA Freedom Act.

“Talking about it in practical terms, the answer is to target the people which you know are up to bad stuff rather than bringing in the 99.8 percent of the inhabitants there, including the vast majority of followers of Islam, who have no intention whatsoever of conducting a terrorist attack,” he said.

While he’s been in Washington for nearly four decades, Sensenbrenner is actually no stranger to many European lawmakers, so he’s sensitive to the higher priority that many Europeans place on personal privacy. In mid-October, Europe’s largest political party — the EPP, which is center-right ideologically — awarded him its Robert Schuman Medal for his work on data-protection issues. The only other American to get the award is former President George H.W. Bush.

Sensenbrenner says the aftermath of the Paris attacks reminds him of the dark, confusing days after 9/11.

On the Sunday after the attacks on New York City and the Pentagon 14 years ago, Sensenbrenner returned to his home state of Wisconsin and received the Bush administration’s first draft of the Patriot Act. Sensenbrenner describes the proposal as an almost complete suspension of civil liberties, and a grab bag of proposals that Congress had previously rejected.

Sensenbrenner defends his role in writing the law, and says he insisted to President George W. Bush that the programs couldn’t go on in perpetuity. Sunset provisions were therefore included, requiring the programs to be renewed. He notes that at the time, a broad range of lawmakers, from security hawks to civil libertarians, voted for the bill. The House passed the bill on a 357-66 vote on Oct. 24, 2001; the Senate cleared the bill a day later on a 98-1 vote, with only Democrat Russ Feingold of Wisconsin dissenting.

After the Snowden revelations brought NSA spying concerns to the fore, however, Sensenbrenner joined with other former supporters to rein in its surveillance authorities. The USA Freedom Act was signed into law in June, and government’s authority for bulk data collection ended this week.

“We strongly agree that the dragnet collection of millions of Americans’ phone records every day — whether they have any connection at all to terrorism — goes far beyond what Congress envisioned or intended to authorize. More important, we agree it must stop,” Sensenbrenner wrote in POLITICO along with another author of the Patriot Act —Sen. Patrick Leahy (D-VT) — days before introducing the Patriot Act rollback in 2013.

The Patriot Act was already a dirty phrase in Europe, particularly in the wake of the Snowden revelations, synonymous with limiting freedoms under the guise of protecting national security.

A Pew Research Center poll last year found that 82 percent of French respondents said it was “unacceptable” for the U.S to monitor French citizens. That was the second highest percentage of objections in Europe after Greece. The French were equally displeased with American spying on its own citizens, according to the same poll.

And as European governments propose new security measures post-Paris, wary privacy advocates sometimes cite the U.S. law.

“We refuse [to support] a Belgian Patriot Act,” said Patrick Dewael, the leader of a liberal Belgian political party said on the floor of the Belgian parliament last month, after the country’s prime minister announced a slate of proposals aimed at cracking down on extremism. Among other things, the prime minister proposed allowing authorities to hold suspects for 72 hours without a warrant and tag extremist young people with electronic tethers. “We must always preserve the balance between safety, freedom and privacy of citizens,” he said.

In France, the current state of emergency, which lawmakers quickly agreed to extend for three months, allows authorities to raid homes without warrants. The country’s interior minister said Wednesday that since November 13, French authorities have conducted 2,235 searches and arrested 263 people.

Like Sensenbrenner, former French diplomat Pierre Vimont sees parallels with the post-Sept. 11 American response.

“You are going to see, exactly as you saw in America with 9/11, that pressure is building up to do something,” said Vimont, who is now a senior associate at Carnegie Europe.

Still, Vimont, who has served as French ambassador to the United States and the European Union, and also as the first Executive Secretary General of the European External Action Service, predicted that his country would never create a Patriot Act. Instead, he said, it would search for a “European way” of dealing with the moment.

The reason? The legacy of what played out in Washington in 2001 looms large for European policy makers.

“I don’t think you can go as far as that precisely because we have the experience now — the American experience — that a lot of political leaders are somewhat scared of,” said Vimont. “We may not go as far as that, but I’m sure you will see some change in legislation if not in constitution.”

Nonetheless, since the Snowden revelations and the Charlie Hebdo attacks, France has broadened its surveillance mandate to allow the government to monitor phone calls and emails of suspected terrorists without a warrant. And it goes even farther, compelling internet service providers to collect the metadata and the web movements of millions from overseas and make that available to intelligences services.

Back in Washington, when asked if the actions taken by the French government go too far, Sensenbrenner demurs. He says he won’t get “involved in the nuances of French law and what the French constitution allows.” He says only that good intelligence must make its way into the right hands, so that attacks like the one in Paris can be prevented.

“The bottom line is really the effectiveness of whether what the French government has done since the attacks in Paris will be able to stop future attacks,” he said. “And stopping future attacks depends on good intelligence, which is shared worldwide.”

View this online here.
WASHINGTON, D.C. – Today, Congressman Sensenbrenner released the following statement on the United States Environmental Protection Agency’s (EPA) decision to increase the amount of biofuels it will require under 2016’s Renewable Fuel Standards (RFS): 

Congressman Sensenbrenner: “Calling for more than 18 billion gallons of ethanol to be incorporated into the fuel supply breaks the blend wall and is a slap in the face to the millions of Americans who don’t want it. According to data from the Energy Information Administration, the overall demand for ethanol-free gas is increasing, and it’s easy to see why.

“Increasing the ethanol mandate is a dangerous decision that will lead to misfueling, damaged engines, and more emissions and pollution. It is a giveaway to corn farmers and ethanol refiners that guarantees that Americans will be paying more to drive their cars, mow their lawns, and plow their driveways.  

“The President is continuing to pick winners and losers when it comes to ethanol. The EPA’s decision should be immediately reversed.”

Rein in farm bill spending

November 28, 2015

The 2014 farm bill is failing to produce the cost savings promised taxpayers. That’s why Congress should fix the holes in the bill that have let $5.2 billion more than expected flow out in one fiscal year.

A proposal sponsored by two Wisconsin congressmen offers a good starting point.

Democrat Ron Kind of La Crosse and Republican Jim Sensenbrenner of Menomonee Falls introduced the plan, which would rein in subsidies received by farmers and insurance companies from the farm bill’s $9-billion-a-year crop insurance program. Some of the proposed spending cuts, totaling $24 billion over 10 years, may be an overreaction to unusual circumstances.

But the proposal — the Assisting Family Farmers through Insurance Reform Measures Act — should prompt Congress to attack runaway spending in agriculture programs.

The stakes for Wisconsin are high. Agriculture contributes about $60 billion a year to the state’s economy. The state is home to more dairy farms than any other state, produces more cheese than any other state and is among the top 10 corn-producing states.

The goal of any farm bill should be to provide consumers with a stable, affordable food supply by protecting farmers from boom-and-bust cycles. The bill also should keep the nation competitive in the global marketplace, encourage environmental stewardship and remain fiscally responsible.

The farm bill passed in early 2014 began with a sound idea: Rein in costly subsidies for farm production in favor of expanding a subsidized insurance safety net. The goal was to allow farmers to buy protection from risks to their income while eliminating direct government payments to farmers.

The plan was projected to save $16.6 billion over 10 years, compared to the old farm bill. But, as the State Journal editorial page warned before the farm bill passed, the insurance subsidies are too generous. Consequently, while the idea remains worthy, the cost savings have vanished, making taxpayers the losers.

Part of the reason is an unusual crop price decline, especially for corn. Farmers who received a corn price of $7.63 per bushel in August of 2012 received $3.68 per bushel in August of this year. Because of the steep price decline, many farmers will collect huge insurance payments.

The situation also exposed other faults in the insurance system, including how big, wealthy farmers collect large payments and how insurers collect subsidies for offering policies and filing claims.

The Kind-Sensenbrenner proposal would place caps on subsidies, disqualify high-income farmers from receiving subsidies and make other changes to cut costs. Sen. Jeff Flake, R-Ariz., introduced a companion bill in the Senate.

The legislation is expected to receive stiff opposition. While some compromises are warranted, Congress should use the Kind-Sensenbrenner bill as a guide to give taxpayers the victory they were originally promised.

View this online here.
There are many things that make Thanksgiving a special time of year. It’s an opportunity to sit down and spend time with our family and friends. It’s a time to reflect on the many blessings we enjoy throughout the year, and of course, it’s a time for great food. 

This Thanksgiving, as you prepare your meals, take pride in knowing that many of the Thanksgiving foods we enjoy are produced right here in Wisconsin. 

Take dinner rolls, for example. 
Wisconsin is famous for being “America’s Dairyland,” but we also have been known as “America’s Breadbasket.” From 1840- 1880, one-sixth of the nation’s wheat came from Wisconsin fields, and although we are no longer the country’s top wheat producer, it is still among  Wisconsin’s leading industries.

How about those mashed potatoes… 
When you think of potatoes, Wisconsin may not come to mind, but our state is actually the third leading potato producer in the country, just behind Idaho and Washington. 

…with a side of corn?
More than 15,000 farmers in Wisconsin grow corn on approximately three million acres, and the state is one of the top producers in the nation. In addition to food, Wisconsin corn is used for livestock feed, and about 10 percent of the state’s production is exported. 

What would a Wisconsin meal be without cheese?
They don’t call us “cheeseheads” for nothing. Wisconsin ranks number one in the United States for cheese production. Whether it’s cheese and crackers before dinner, shredded cheese sprinkled in our salads or on our potatoes, or baked with love into our green bean casseroles, it’s hard to imagine Thanksgiving without delicious Wisconsin cheese.

Wash it down with an ice-cold glass of milk. 
Wisconsin has been the country’s leading dairy state since 1915, and it’s a proud tradition we hold today. Our state is a national leader in milk production with more than 10,000 dairy farms, each with an average of 120 dairy cows. 

And don’t forget the cranberry sauce.
Wisconsin has been the largest producer of cranberries in the country for the last 20 years. In fact, Wisconsin is the largest producer of cranberries in the world. They are Wisconsin’s largest fruit industry, and the cranberry was declared the official state fruit in 2004. More than 250 growers throughout the state produce cranberries on land that spans 20 counties. That’s a lot of cranberries! 

I’m thankful for many things, including my family, friends, health, and the privilege of serving the people of Wisconsin’s Fifth District. Thank you for the opportunity to be your representative. Have a safe and blessed Thanksgiving Day.
In a recent Post op-ed, Gregory B. Craig, former White House counsel, and Cliff Sloan, former special envoy for Guantanamo closure, argued that President Obama has the legal authority to ignore the law and transfer some of the world’s most dangerous terrorists to the United States.

I sincerely hope that, as former Obama administration officials, they are not laying the groundwork for a course of conduct from the White House that can end only in constitutional crisis. In a recent letter, I respectfully requested that the president reject Craig and Sloan’s legal reasoning and assure Congress that he will not transfer detainees from the military prison at Guantanamo Bay, Cuba, to the United States in violation of the law.

The Constitution gives Congress the power to declare war but reserves to the president, as commander in chief, the ability to “make war.” This led Craig and Sloan to conclude that Congress cannot “direct specific facilities in which specific detainees must be held.”

Stated this broadly, I agree. But in framing the question as “whether Congress can tell the president where military detainees must be held,” they grossly mischaracterized the issue.

Congress has not required that any individual detainee be held in a specific facility. Rather, it prohibited the use of federal funds to move detainees from Guantanamo to the United States. This is not a de facto mandate that the president maintain the detention facility at Guantanamo Bay, as Craig and Sloan seemed to assume. It is a legitimate exercise of congressional power to prevent the president from housing some of the world’s most dangerous terrorists on U.S. soil. This, emphatically, Congress can do.

The Constitution’s separation of powers is also a balance of powers. While the president has broad powers as commander in chief, Congress has equally broad authority in its power of the purse and its exclusive grant of legislative powers. The Constitution gives Congress authority to “make all Laws necessary and proper for carrying into Execution the . . . Powers vested by this Constitution in the Government of the United States.” In other words, Congress makes the rules, and the president executes them. Relative to detainees, the Constitution even gives Congress the explicit power to “make Rules concerning Captures on Land and Water.” Congress has done exactly that.

In banning transfers of dangerous terrorists into the United States, Congress is exercising a legitimate legislative function. We saw with the June escape of dangerous criminals in upstate New York that it is impossible to guarantee Guantanamo Bay detainees will remain confined. Congress has the right to legislate to protect against this risk and to protect the emotional security of Americans who may feel justifiably concerned about living in close proximity to enemy combatants responsible for the deadliest attack on the United States since Pearl Harbor.

Moreover, in United States v. Verdugo-Urquidez, the Supreme Court held that the Constitution does not protect noncitizens outside our country. If the president were to unilaterally move alien terrorists into the United States, those terrorists could argue for constitutional protections. Congress has the right to protect against this possibility, especially because Congress, not the president, has the authority to determine how and when the domestic criminal laws should be applied.

Craig and Sloan wrote that Congress can pass military regulations, authorize detentions and military tribunals and broadly regulate the treatment of prisoners of war. But for some reason they emphatically denied that it can prevent known terrorists from being transferred to U.S. soil.

In so arguing, they did not mention Youngstown Sheet & Tube Co. v. Sawyer — the seminal Supreme Court decision on the relative powers of the executive and legislative branches of government.

In Youngstown, a labor dispute led to a strike that threatened to close the nation’s steel mills in the midst of the Korean War. President Harry S. Truman believed this would cripple the war effort and ordered that the U.S. government take control of the nation’s steel mills to prevent their closure. In passing the Taft-Hartley Act, however, Congress specifically considered and rejected an amendment that would authorize government seizures in cases of emergency.

Truman’s order was in direct contravention of congressional will, but he argued it was justified because it was necessary to avoid national catastrophe in a time of war. The Supreme Court disagreed.

In a concurrence that has become a foundation of constitutional law, Justice Robert H. Jackson described executive authority as ebbing and flowing in conjunction with congressional will. When the president acts with congressional authority, this power is “at its maximum.” When the president acts in the absence of either a congressional grant or denial of authority, there is a “zone of twilight” where Congress may have concurrent authority. When the president acts against the express will of Congress, however, his power is at its “lowest ebb.”

Jackson presciently warned of the danger of allowing the president to ignore Congress: “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

With these stakes, and against this precedent, Craig and Sloan concluded that the president can and should ignore the expressed will of Congress and transfer the Guantanamo Bay detainees to the United States. I disagree. Hopefully, as a constitutional scholar, President Obama does as well.
View the op-ed online here.