Executive power

  • October 9, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press. His second book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published next year by the University of Wisconsin Press.

    Sen. John McCain said of waterboarding that “it is not a complicated procedure. It is torture.” Experts, including those who have experienced waterboarding, agree. Waterboarding is sometimes incorrectly described as “simulated” drowning. In fact, “[t]here is no way to simulate the lungs filling with fluid, and the victim does not need to be convinced physiologically. The [person being waterboarded is] in the process of drowning.” Those who have experienced waterboarding describe it as “controlled death.” The United States has prosecuted both Americans and members of foreign militaries for waterboarding prisoners.

    The Bush administration relied on implausible statutory definitions and dangerous theories of unrestrained executive power to conclude that it could authorize waterboarding. Since waterboarding is torture, it is a crime, and waterboarding (since it is torture) cannot be justified by emergency. Apart from the fact that it is illegal, there is no evidence that waterboarding produces reliable intelligence. Some who are waterboarded simply tell their interrogators anything they think will get the waterboarding to stop. A Senate report concluded that Khalid Sheikh Muhammed provided fabricated information after being subjected to waterboarding and other interrogation methods.

    To his credit, President Obama has rejected waterboarding, correctly identifying it as torture. He issued an executive order in 2009 that would rule out interrogation methods not authorized by and listed in the Army Field Manual (the manual specifically prohibits waterboarding). However, his administration has not prosecuted anyone for authorizing or carrying out waterboarding.

  • June 3, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Chris is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    Presidential candidates may find it easy to score political points by talking tough, especially when there are lots of things for Americans to be afraid of in the context of national security.  Governor Scott Walker, a candidate for the Republican nomination, is showing his ability to play this game.  However, while this approach may score Walker points with voters, the governor is playing a dangerous game when it comes to presidential power under the Constitution.  This is a scenario that has become all too familiar since 9/11.

    While campaigning in New Hampshire last weekend, Walker told voters that “I'm not eager to go into open-ended engagements, but I'm not afraid to lay down the law when we have to.”  He declared that “I just want people to know that while I'm ready to be firm, my first intention, my first instinct, isn't to send in military forces.  But I'm certainly not going to rule it out.”  He further explained that “In Iraq, people ask me, 'Would you put boots on the ground?’  I don't rule anything out.  The last thing you want to do is send a message to your adversaries, how far you're willing to go, how long you want to be there.  That's a foolhardy military strategy that sets up failure.  So I wouldn't rule it out.  But I wouldn't lead with it.”

    Walker’s rhetoric may remind some of dialogue from a John Wayne movie or Tom Clancy novel, but what’s more important is his assumption that it would be up to him, as president, to make these decisions unilaterally.  In this vein, Walker argued that “We need a commander-in-chief who understands going forward that radical Islamic terrorism is a threat to us all and will act to do something about it. . . . I'd rather take the fight to them instead of waiting until they bring the fight to us."  Note the first person references.  Walker’s model for decisions about the use of military force doesn’t seem to include much of a role for Congress.  Instead, he envisions a decision-making process dominated by the president.  Walker imagines himself making unilateral decisions as to when, whether, and how to use military force.

  • May 21, 2015
    Guest Post

    by Ilya Somin, Professor of Law, George Mason University School of Law; author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press).

    The Obama administration’s immigration policy deferring deportation for more than four million illegal immigrants has been the focus of extensive constitutional debate since it was announced last fall. One conservative federal trial judge has ruled that the policy is unconstitutional, and another has concluded that it violates the Administrative Procedure Act, on the basis of arguments that suggest it is likely unconstitutional as well.  Despite these rulings, the Obama policy is constitutional, and appellate courts would do well to uphold it. Ironically, the case for it is particularly strong if we accept two principles that many of the policy’s conservative critics strongly support in other contexts: the unitary executive and limiting the scope of congressional power  as close as possible to its original meaning. At the same time, the Obama policy highlights the dangers posed by executive discretion in a world where there is far more federal law than any administration can effectively enforce.

    In many ways, the administration policy is simply an exercise of longstanding executive discretion in deciding when to enforce federal laws. There are more than 11 million illegal immigrants in the United States, and no administration is likely to deport more than a small fraction of them. Similarly, scholars estimate that a majority of Americans have violated federal criminal law at some point in their lives. Only a small fraction of these offenders are ever prosecuted. The executive generally has broad discretion to decide which suspected lawbreakers to go after and which ones to ignore.

    Many of  the administration’s critics claim that, by choosing not to enforce deportation against a large category of aliens, Obama is violating the Take Care Clause of the Constitution, which requires the president to “take care that the laws are faithfully executed.” But whatever else that Clause might mean, it surely does not require the president to enforce every federal law to the hilt, especially in a world where it would be literally impossible to even come close to doing so. Otherwise, virtually every president would be in constant violation of the Clause.

    Both judicial rulings against the Obama policy emphasize that it goes beyond ordinary executive discretion because it replaces “case by case” discretion with a general rule imposed by the president that categorically excludes broad categories of aliens from deportation. The categories in question cover numerous undocumented migrants who are either parents of U.S. citizens or permanent residents, or entered the U.S. as children. As Judge Arthur Schwab put it in the first ruling, the policy “provides for a systematic and rigid process by which a broad group of individuals will be treated differently from others… rather than case-by-case examination.” But the difference between case by case examination and categorical rules is one of degree rather than kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense or the danger posed by the offender. And if such general rules can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president. After all, lower-level law enforcement officials are ultimately merely the president’s agents and subordinates.

  • April 6, 2015
    Guest Post

    by Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law; Professional Lecturer in Law, George Washington University Law School

    The area near the border between Texas and Mexico is a dangerous one, especially if you are a liberal Democrat from the North trying to deal with about 11.3 million individuals who are not lawfully in the United States, when the budget and the personnel to operate existing systems will not enable you to deport more than 400,000 a year. And judging from the February 16 opinion in Texas v. United States by District Judge Andrew Hanen, who sits in the Brownsville Federal Court located there, the courthouse is not a safe place to be either.

    Judge Hanen’s ruling, which runs 123 pages and was followed by a three-page preliminary injunction, has so much in it that it is impossible to do more in an essay like this than to summarize the key points. Meanwhile, the Federal Government has appealed and is seeking a stay in the Fifth Circuit, which will be heard on April 17. But first, let’s start with what Judge Hanen did and then take a look at the appellate posture. 

    The first step is to recognize who in the Executive Branch did what that precipitated the lawsuit. Although the popular notion is that it was a decision of President Obama that was being challenged, the President did not issue an executive order or anything else to bring about these changes: he left those to the Secretary of Homeland Security, Jeb Johnson.  This choice may actually matter here because the flaw that Judge Hanen identified – failure to comply with the Administrative Procedure Act (APA) – applies only to agency officials, which excludes the President. 

    Secretary Johnson, acting with at least the president’s blessing, if not at his direction, created a new program for parents of children lawfully in the United States – Deferred Action for Parents of Americans and Lawful Aliens (DAPA) – and expanded the existing program for children – Deferred Action for Childhood Arrivals (DACA).  Each has two major components.  First, they direct agency officials not to deport otherwise deportable aliens who fall into certain categories whose presence in the U.S. does not present significant dangers to the country, mainly parents of others authorized to be in the U.S. Second, they authorize the estimated 4.3 million individuals who fall in each category to receive federal work authorizations, which aliens need to obtain a legal job, as well as other benefits that flow from being authorized to work. The legal issues for the two parts are different, but before turning to those questions, there is the ever-present and often devilish issue of standing or, in lay language, what says you have a right to sue over this claim?

  • March 16, 2015
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Decades ago, the late constitutional scholar Charles Black offered an important functional justification for giving federal courts the power to say “no” to unconstitutional laws and executive actions: It is the judicial power to say “no” that gives the judicial power to say “yes” its legitimating force. Government benefits mightily when a judicial opinion upholding official action puts at rest, if not an underlying policy debate, then at least the public’s interest in prolonging a constitutional battle about whether the challenged action is at least lawful.  Such seems to have been the result in 2011when the Supreme Court upheld the Affordable Care Act.  A judicial imprimatur can have this beneficial impact, however, only if the public understands that courts make independent judgments.

    For this reason, despite powerful legal arguments that U.S. District Court Judge Andrew Hanen should not have reached the merits of any issue regarding the Department of Homeland Security’s program of “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), the country may be better off once a court does so. My difficulty with Judge Hanen’s massively overwritten 123-page opinion in Texas v. United States is not that Texas got past threshold procedural barriers to judicial review. It is that, in an ideologically driven opinion, Judge Hanen simply gets the law wrong.

    As a formal matter, Judge Hanen grants Texas the preliminary injunction it seeks because he deems Texas likely to succeed in challenging the DAPA policy on a procedural basis, namely, publication of the policy without an opportunity for public comment under the Administrative Procedure Act. His conclusion on this point is wrong, as I discuss below, but perhaps foreordained by a more glaring error. Although Judge Hanen purports to rule only on procedural grounds, his opinion makes crystal clear that he thinks DAPA exceeds the DHS Secretary’s legal authority. His analysis is framed by an overarching narrative about how a supposedly feckless federal government is victimizing the helpless states by simultaneously hoarding to itself all authority over immigration and then abandoning a constitutional duty to protect the states from the burdens imposed by the presence in the U.S. of millions of undocumented immigrants. (If you want to see what judicial empathy for a plaintiff looks like, reading Judge Hanen’s 47-page analysis of Texas’s standing to sue would make a good start.) 

    Judge Hanen’s framing is doubly unfortunate. First, it ignores the ways in which the DAPA program would boost state economies and accompanying tax revenues. As 14 states and the District of Columbia have argued in an amicus brief supporting DAPA: “When immigrants are able to work legally—even for a limited time—their wages increase, they seek work compatible with their skill level, and they enhance their skills to obtain higher wages, all of which benefits State economies by increasing income and growing the tax base.” Moreover, Judge Hanen’s narrative of states as victims leads him to four outright mischaracterizations of DAPA.

    To see these misconceptions starkly, it is helpful to consider that the measures DHS Secretary Jeh Johnson implemented through two memoranda on November 20, 2014 effectively accomplish three things. First, they establish national immigration enforcement priorities, instructing all immigration agencies within DHS as to the highest priorities for detention and removal, as well as the criteria for a new program of deferred action for parents of U.S. citizens and other legally permanent residents. With or without DAPA, DHS’s immigration components would be free to follow these priorities in their law enforcement activities.