Executive power

  • February 17, 2016
    Guest Post

    by William Marshall, the William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law; Marshall is also a member of the ACS Board of Directors.

    I understand that some have vehemently criticized Senator McConnell for proclaiming that “[t]he American people‎ should have a voice in the selection of their next Supreme Court Justice.” But Senator McConnell is right. The American people should have a voice in the selection of Supreme Court justices. And, as long as we are on the subject, we might also note that the American people should have a voice in the selection of judges appointed to the lower courts.

    The problem is that Senator McConnell has apparently forgotten that the American people have already exercised this right. In 2012, they elected Barack Obama President of the United States. This means that the American people have already voiced their decision that Barack Obama, under Article II § 2 of the United States Constitution should, among his other duties and obligations, “nominate Judges of the supreme Court.”

    It is really that simple. So simple, in fact, that John Adams, the second president of the United States, saw no problem in appointing John Marshall to be the Chief Justice of the Supreme Court even after Thomas Jefferson defeated Adams in the election of 1800. So simple that the United States Senate in 1801 confirmed Adams’ nominee event though Jefferson was only weeks away from assuming office. So simple that in 2016, no presidential candidate from either party has even remotely suggested that he or she would not nominate a candidate to the Supreme Court if a vacancy arose during his or her last year in office. (Where else has there been such unanimity in this race?)

    The contrary conclusion that a president should abrogate his duty to appoint judges at the end of his term simply cannot be squared with the Constitution. Article II sets the term of the presidency at four years; not three years, not three years and a quarter, and not three years and one half. The Twenty-Second Amendment to the Constitution imposes a two-term limit on the presidency – it does not impose a mid-term limit. Neither Article II nor Amendment XXII (or for that matter any other constitutional provision) suggests or implies that some presidential powers should be exercised until the president’s last day in office while others should be abandoned months or years before.

    Few constitutional questions are this easy. The president appoints Supreme Court justices, and the Senate provides advice and consent. Both should start doing their jobs.

  • February 17, 2016
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson’s book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published in spring 2016 by the University of Wisconsin Press.

    Most people probably haven’t heard of the unitary executive theory, the radical notion that the president can set aside laws‒even criminal laws‒that, in the president’s view, infringe on executive power. This is a theory that effectively places the president above the law. The Bush-Cheney administration invoked the unitary executive theory to justify, among other things, warrantless surveillance prohibited by the Foreign Intelligence Surveillance Act and torture prohibited by U.S. anti-torture law.

    Vice President Cheney was the administration’s leading advocate for the unitary executive theory, but John Yoo, then a lawyer in the Office of Legal Counsel (OLC), wrote memos explaining it. When Yoo’s once-secret memos were made public, commentators were rightly shocked. As Elizabeth Drew observed, “Yoo…took the view that the president had the power to do pretty much whatever he wanted to do.” In an August 1, 2002, memo signed by his boss Jay Bybee, Yoo concluded that for an act to constitute torture, it must be intended to inflict pain “equivalent to that associated with ‘death, organ failure, or serious impairment of body functions.’” Yoo based this definition on out-of-context language he found in a health care statute. This grotesquely narrow definition of torture allowed the OLC to conclude that waterboarding, a method of controlled drowning in which the lungs are filled with water, was legally permissible. But OLC’s back-up argument went even further, concluding that the president could authorize any interrogation method he or she deems necessary. If the president wants to authorize torture which is, by definition, illegal, the president can simply set aside statutory limits enacted by Congress. This is so, OLC concluded, because the president possesses “inherent constitutional authority” as Commander in Chief to manage military campaigns. “Inherent” authority suggests plenary, unrestricted authority—even extra-constitutional authority that simply cannot be limited by the other branches of government.

    One might think it would now be out of bounds to endorse this theory of unrestrained presidential power. But presidential candidate Ted Cruz has suggested he is very comfortable with the Bush-Cheney-Yoo approach. This is something that ought to make the rest of us very uncomfortable.

  • January 22, 2016

    by Christopher Durocher

    Presidents Obama’s executive actions on guns, announced this month, have drawn unfair and unwarranted criticism, according to Erwin Chemerinsky, dean of the University of California, Irvine School of Law and one of the nation’s leading legal scholars. In testimony submitted to the Senate in advance of a hearing held this past Wednesday, Chemerinsky, who is also a member of ACS’s board of directors, explains that the president’s actions “are clearly constitutional. The new policies announced by President Obama are relatively modest and are entirely focused on enforcing existing statutes. Thus all are within the permissible scope of executive power without infringing the Second Amendment.”

    Among the president’s executive actions, Chemerinsky notes, is guidance from the Bureau of Alcohol, Tobacco and Firearms (ATF) that “clarifies which gun sellers are ‘engaged in the business’ of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers” and directives to the ATF and FBI to “prosecute individuals who illegally attempt to obtain firearms and also to inform state law enforcement whenever a prohibited person in their state fails a background check.” Chemerinsky describes both measures as “common sense” efforts to better enforce existing federal law. He further notes that, “Not one federal court ever has questioned the constitutionality of the federal laws being enforced by President Obama’s executive order.”

  • January 20, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    Early Tuesday, January 19, 2016 the United States Supreme Court agreed to hear the case of United States v. Texas, a largely political lawsuit brought by a faction of 26 states challenging the legality of two programs announced by President Obama on November 20, 2014. Specifically, the high court agreed to hear arguments on the following issues: “(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.” Rulings on the first three of those issues were requested by the government; the fourth issue was raised on the Court's own initiative.  On November 9, 2015, by a 2-1 majority, a panel of the Fifth Circuit Court of Appeals ruled against the Administration.

    The executive actions being challenged by states are coined as an expansion of “Deferred Action for Childhood Arrivals” (DACA) and the creation of "Deferred Action for Parents of Americans and Legal Residents” (DAPA). These actions would expand a pre-existing deferred action program for young people and create a new program for qualifying parents who have resided in the United States for at least five years. Deferred action is a form (among more than a dozen forms) of prosecutorial discretion in immigration law. When prosecutorial discretion is exercised favorably towards a person, the government (in this case Department of Homeland Security or DHS, the agency whom Congress has specifically delegated to administer and enforce the immigration laws) abstains from bringing a legally valid immigration charge against a person or group of persons. Prosecutorial discretion exists for humanitarian reasons to the extent the individual bear positive equities like intellectual promise or the position as a primary caregiver to a family; and for economic reasons as DHS has limited resources and the responsibility to target its enforcement against true priorities. This dual activity of enforcing the immigration laws against high priorities and exercising prosecutorial discretion favorably towards others lies at the core of the Take Care Clause which I have described in earlier work in the following way:

    Importantly, the President’s faithful execution of the immigration laws is not just limited to bringing enforcement actions against individuals and ultimately deporting them, but also to prioritizing the deportable population in a cost-effective and conscientious manner, and providing benefits to deportable noncitizens when they qualify for them. The President must “walk and chew gum” at the same time to carry out an effective immigration policy. 

    Apart from the deferred action programs is another memo announced on November 20, 2014 entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.”  These policies identify priorities for removal which include but are not limited to those with criminal histories, recent entrants, and those with removal orders issued on or after January 1, 2014. This memo is operational today and has sparked great debate and controversy since the Administration’s announcement to conduct raids against Central American families and unaccompanied children who seemingly fall within these priorities. This same memo contains a primer on the use of prosecutorial discretion, but immigration attorneys and advocates have criticized its actual implementation since its inception.

  • January 20, 2016
    Guest Post

    by Gabriel J. Chin, Martin Luther King Jr. Professor of Law, UC Davis School of Law

    The Supreme Court granted certiorari this week in United States v. Texas; the case will undoubtedly be one of the term’s most interesting, important, or both. In a 2-1 decision, the Fifth Circuit invalidated the Obama Administration’s DAPA program making “deferred action” available to as many as four million unauthorized migrants who are parents of U.S. citizens or green card holders. Deferred action represents a formal decision by the government to exercise prosecutorial discretion not to initiate deportation proceedings; it creates neither a right to remain nor a path to permanent status. However, by regulation, the government may grant work authorization to holders of deferred action.

    The Court will review several critical questions.

    The merits issues are whether the administration had the power to establish the program, and if it did, whether it should have gone through formal notice and comment under the Administrative Procedure Act. As Congress does not appropriate enough money to completely enforce the immigration laws (or any other laws, for that matter) there is no question that prosecutorial discretion, for better or for worse, is inevitable. There is also little doubt that even in the government, bosses are allowed to give direction to subordinates about how programs are to be carried out.

    The line between permissible “guidance” and formal, binding enforcement rules requiring notice and comment is debated by the parties. But given that the program does not purport to give noncitizens enforceable rights to relief and allows for case by case, discretionary evaluation of applications in the field, there is a strong reason to believe that the program constitutes permissible enforcement guidance. Certainly it is hard to dispute the idea that, in principle, discretion should be exercised consistently, transparently, and based on reasons rather than at the whims of individual officers in the field. I consider it unlikely that a majority of the Court will rule that general, non-binding guidance of this sort is impermissible.