Executive power

by Nicole Flatow

Following Congress’s enactment of the National Defense Authorization Act with some tweaks to the detainee provisions, the White House put out a statement that President Obama’s advisers would no longer recommend he veto the law.

Most have viewed this as an indirect announcement from Obama himself that the veto is off the table. But the Brennan Center for Justice’s Elizabeth Goitein reminds Obama in a column for The Hill that he alone will make the decision, and that it’s not too late to “reject this historic affront to our liberty and our security.”

“It would be extraordinary for the president to change course now,” writes Goitein, co-director of the Brennan Center’s Liberty and National Security. “But to sign a bill that permits the indefinite detention of U.S. citizens without charge, erects pointless barriers to law enforcement’s counterterrorism efforts, and requires the detention of innocent people would be even more extraordinary.”

Disappointment among civil libertarians has been widespread, with the Center for Constitutional Rights saying Obama has made a “choice with chilling consequences” and Human Rights Watch’s Kenneth Roth warning, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law."

Georgetown University Law Professor David Cole explains in The New York Review of Books why the bill, even as amended, “continues to contain extraordinarily dangerous principles”:

by Nicole Flatow

Former George W. Bush attorneys general Michael Mukasey and Alberto Gonzales are expressing alarm over Republican presidential primary candidate Newt Gingrich’s latest proposal to eviscerate the power of the courts, Fox News reports.

Mukasey calls some of the ideas in Gingrich’s position paper “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle," and Gonzales takes particular aim at the suggestion that Congress subpoena judges after controversial rulings, saying, “I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges." 

In his 28-page paper, "Bringing the Courts Back Under the Constitution," Gingrich suggests a number of radical ways in which the legislative and executive branches should rein in “lawless judges,” including by eliminating courts they don’t like, limiting the scope of decisions those courts can make, and simply ignoring Supreme Court decisions.

On Gingrich’s suggestion that the entire U.S. Court of Appeals for the Ninth Circuit be eliminated, Mukasey says, “The fact is the Constitution empowers the Supreme Court to establish lower federal courts. Presumably it can undo lower federal courts. But to say that you are going to undo an entire court -- simply because you don't like some of their decisions -- when there are thousands of cases before that court is totally irresponsible."

Mukasey and Gonzales echo the concerns of several other commentators, who have expressed particular alarm over Gingrich’s attack on the landmark decision Cooper v. Aaron, in which all nine members of the Supreme Court affirmed a court order calling for desegregation. 

“If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches,” The New York Times editorial board asserts.

In her New York Times Opinionator column, American Constitution Society Board Member Linda Greenhouse calls “truly head-spinning” the “tenuous hold that this screed, from a onetime history professor, has on American history.”  She continues: