Executive power

  • December 12, 2014
    Guest Post

    by Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He 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.

    In his piece, “Torture Is Who We Are,” Peter Beinart rightly exposes the Pollyanish mindset that would describe the United States as “intrinsically moral” with torture that has occurred since 9/11 “represent[ing] an aberration.” Beinart is of course right to point out that post-9/11 waterboarding is hardly the first time in U.S. history that Americans have been guilty of torture -- he cites slavery, waterboarding of Filipino prisoners during the Spanish-American War and electric shocks delivered to the genitals of prisoners during the Vietnam War as some grotesque examples. There are others. Civilian law enforcement authorities used waterboarding and sleep deprivation on domestic criminal suspects decades before 9/11. A U.S. soldier waterboarded a Vietnamese prisoner in 1968

    So Beinart is right in one sense -- torture is not something new in American history. It cannot be seen as an aberration from a previously morally upright, torture-free history. But there is one important difference that he misses, that makes his analysis more pessimistic than it need be.  Torture by Americans is not new. The idea that Americans can torture with impunity, however, is new. In each of the examples I listed, there were consequences for the torturers. A Texas sheriff and his deputies who waterboarded a criminal suspect were themselves convicted and sentenced to prison. The U.S. soldier who waterboarded a Vietnamese prisoner was court-martialed. When law enforcement authorities subjected a suspect to questioning for 36 hours without sleep, the Supreme Court threw out a conviction based on the coerced confession that had been extracted.  The same is true for one of Beinart’s examples.  A U.S. military officer who waterboarded Filipino prisoners was court-martialed, suspended from command for one month and fined $50.  Moreover, before 9/11, even when torture was not punished, no one proudly defended it or attempted to justify it -- instead, it was swept under the rug, as often happened during the Vietnam War. There is one essential exception to emphasize: slavery.  Slaveowners openly tortured slaves with impunity.  This is of course a central fact of American history, not truly an “exception”, except in the limited sense that it varies from the other examples I have given where torture before 9/11 was either punished or else covered up.  What has changed since 9/11 as compared with most of the examples noted is that there are now people willing, even proud, to defiantly defend torture

    Beinart is correct that “America has tortured throughout its history.” Before 9/11, however, there were usually consequences for torture: torturers faced prosecution and punishment in the criminal justice system. This is part of what it means to be true to the rule of law: when the law is violated, offenders are punished. No country can guarantee that all of its law enforcement officials, soldiers, or government officials, will refrain from torture. But countries that uphold the rule of law can guarantee that torturers will be prosecuted. 

  • December 10, 2014
    Guest Post

    by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He 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.

    Following release of the redacted Senate Intelligence Committee's majority report on torture, critics are insisting that the report overlooks the value of waterboarding, sleep deprivation and other interrogation methods better suited to the Spanish Inquisition than a constitutional republic. Those who defend torture tend to emphasize its supposed efficacy in extracting intelligence that prevents terrorist attacks.  In fact, those who insist torture saves lives have never identified evidence that proves their case.

    More importantly, however, arguing about the efficacy of torture point obscures two essential points: (1) torture, by definition, is illegal and (2) the argument in defense of torture is a rejection of the rule of law.

    Defenders of the Bush administration’s tactics have helped make these points clear. For example, on yesterday's “Morning Joe,” former Bush communications chief Nicolle Wallace declared that she “pray[s] to god that until the end of time, we do whatever we have to do to find out what’s happening [in terms of planned terrorist attacks].” She suggested that we must trust the government to do whatever it believes is necessary to protect the nation -- in her words, “I don’t care what [the government] did” after 9/11 to prevent another terrorist attack -- as long as it works.                                         

    Wallace is an effective and powerful speaker, and I thought her bombastic approach caught her sparring partner, Howard Dean, off guard and made for good TV. But it's worth taking more time than cable TV allows in considering the implications of what she said.

    Wallace's argument is a case for handing over power to the executive branch, assigning it complete power to defend the nation, unrestrained by law. That is, of course, not what the framers of the U.S. Constitution had in mind when they created a system of checks and balances designed to give government enough power to carry out is responsibilities but also to set definable limits on that power. It is, however, precisely how government officials who authorized torture justified their actions. In once-secret memos written on August 1, 2002, former Justice Department lawyers John Yoo and Jay Bybee concluded that waterboarding, sleep deprivation and other methods CIA interrogators wanted to use on suspected al Qaeda leader Abu Zubaydah could not be defined as torture. Their view depended on the preposterous notion that severe physical pain necessary to constitute torture under U.S. criminal law could be defined by reference to health care statutes. But it is the backup argument that Yoo and Bybee relied on that is most chilling: they concluded that President George W. Bush could authorize any interrogation methods he deemed necessary, even if such methods violated U.S. criminal law. The president, they said, could not be constrained by Congress in this area.  

    That is the language of an executive branch above the law, the same language Wallace uses when she says that she doesn't care what the government did to prevent terrorist attacks after 9/11, that it must do whatever is necessary. Bush administration lawyers agreed, concluding that the executive branch is not constrained by law.

  • December 4, 2014
    Guest Post

    by Neil Kinkopf, Professor of Law, Georgia State University. He also serves on the Georgia Lawyer Chapter Board of Advisors.

    The predictable calls for impeachment went up after President Obama announced his actions on immigration last week. To the surprise of no one, the calls issued exclusively from the president’s Republican detractors. Such partisan calls for impeachment are easily dismissed. In a recent New York Times op-ed, however, Professor Peter Schuck of the Yale Law School lent credibility to the legal basis for these claims, arguing that the president’s action satisfies the constitutional predicate for impeachment (though he advocates that Congress exercise its discretion to decline impeachment).  His argument is worthy of attention, though it fails utterly. 

    The Constitution sets forth the grounds for impeachment:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Nowhere in the document, however, is the phrase “other high Crimes and Misdemeanors” defined. This absence of a legal definition has led some to conclude that the House of Representatives may impeach for any reason at all. Then-Congressman Gerald Ford gave this idea its most famous articulation:  “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history ….”  Professor Schuck falls squarely in this camp, declaring “it is pretty much up to Congress to define and apply ‘high crimes and misdemeanors.’” 

    This Nietzschean view (Law is dead, therefore all is permitted) is deeply flawed. Most significantly, it is at odds with the original understanding of the impeachment power. The framers adopted the language “high crimes and misdemeanors” precisely to avoid leaving it “pretty much up to Congress” to decide for itself what constitutes an impeachable offense. During the drafting convention, George Mason suggested that the president be impeachable for “maladministration.” James Madison objected to this formulation on the grounds that it would undermine the independence of the president: “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate.” The constitutional convention then settled on the familiar “high crimes and misdemeanors” language as a way of making sure the standard for impeachment would not be infinitely malleable. 

  • November 20, 2014
    Guest Post

    by Adam Cox, Professor of Law, New York University School of Law, and Cristina Rodriguez, the Leighton Homer Surbeck Professor of Law, Yale Law School

    *Professors Cox and Rodriguez have commenced a symposium at Balkinization, which we're cross-posting.
     
    Tonight, President Obama announced sweeping administrative reform of immigration law. His efforts raise important questions about the legal basis for his actions and its implications for the future of immigration law and the separation of powers.
     
    Over the next several days, we will convene an online symposium here, on Balkinization, to discuss and debate these issues with a group of leading immigration law and constitutional law scholars and litigators.  While much ink has been spilled in recent months over the legality of administrative immigration relief, much of that writing has been necessarily speculative.  Now we know the basic facts.  The President’s administration will exercise prosecutorial discretion to defer the removal of many parents of U.S. citizens and lawful permanent residents, making them eligible for work authorization for up to three years at a time.  This action is estimated to encompass 3.3 million unauthorized immigrants.  When combined with the last round of administrative relief—the Deferred Action for Childhood Arrivals Initiative—roughly 5 million persons, or 40 percent of the unauthorized population, may be affected.
     
    As the President’s announcement made clear, however, there will be limits to his exercise of discretion.  The parents of DACA recipients will not be included.  This is an extremely important fact—not just as a political matter, but also, potentially, as a legal one.  Over the course of recent debate, writers on all sides of the issue have struggled mightily to avoid a central question about the exercise of prosecutorial discretion in immigration law: how far is too far?  Opponents have argued that the president has crossed the line into unconstitutionality; defenders have contended that he has not. But almost no one has been willing to say where that line is located.  Tonight that changed.  An opinion from the Office of Legal Counsel, made public by the administration, lays out the legal basis for the President’s actions and provides scholars with new theories of executive power and prosecutorial discretion to explore.  Importantly, that opinion concludes that, while the President has authority to grant relief to the parents of US citizens and LPRs, the President lacks legal authority to grant such relief to the parents of DACA recipients.
     
    We are among those who believe the basic parameters of executive discretion in immigration law permit the President to take the steps he has.[1] But the OLC opinion raises important questions about the limits of discretion, as well as a new gloss on the legal issues—the legal claim that the President’s actions are consistent with congressional priorities as reflected in the Immigration and Nationality Act.  
     
    The combination of the President’s sweeping action with an official government defense of the program’s legality—something that did not accompany DACA—makes now a crucial moment to discuss two fundamental questions that have long been embedded in the debate over administrative relief.  First, the question of scope: of how the size and composition of the group offered administrative relief bears on relief’s legality.  Second, the question of how the form of relief—that is, the precise benefits that are conferred through administrative action—affect its legality?
     
    These and other questions will be ones that we and the other symposium participants will engage and debate in the coming days.

     

     
  • September 29, 2014
    Guest Post

    by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He 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.

    Watching Congress utterly fail to discharge its duty as President Obama boldly exceeds the limits of his power by unilaterally authorizing military action against ISIS reminds me of the old philosophical question: if a tree falls in the forest and no one’s there to hear it, does it makes a sound?  In this case, the question is: if the President violates the Constitution and Congress does nothing, are there any consequences for the constitutional violation?

    The answer is almost certain to be “no”. The Constitution is not self-enforcing.  It only works when each branch of government resists and rejects overreach by the others—and, when it comes to checking executive overreach in the context of national security, the key actor is Congress. As Justice Robert H. Jackson observed in the 1952 Youngstown Sheet decision, “I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress…We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”

    What we’re seeing right now is Congress letting power slip right through its fingers and become more concentrated in the hands of the President.  Congress has gone into recess without weighing in on the President’s decision to authorize military action against ISIS in Iraq and Syria (the vote to arm Syrian rebels addressed a separate matter).  President Obama has claimed he has authority to order military action based on the 2001 Authorization for the Use of Military Force against Al Qaeda and the Taliban.  But that legislation cannot plausibly provide authority to act against ISIS, a rival of Al Qaeda’s that did not even exist when the 2001 AUMF was enacted.  As Harvard Law professor Jack Goldsmith put it, President Obama’s decision to order military action against ISIS in Syria “is, at bottom, presidential unilateralism masquerading as implausible statutory interpretation.”