Executive power

  • September 11, 2013
    Guest Post

    by Jennifer Daskal, Assistant Professor, American University Washington College of Law

    Twelve years ago, as the nation was reeling from the worst terrorist attack in its history, Congress authorized the president to use “all necessary and appropriate force” against those that “planned, authorized, committed, or aided” the September 11th attacks.” Notably, Congress refused the Bush administration’s much broader proposal to authorize the use of force to “deter and pre-empt any future acts of terrorism or aggression against the United States.”   Thus, even as the nation was reeling from the worst terrorist attack in its history, Congress rejected a broad-scale “war on terrorism,” and instead passed a relatively limited force authorization against those responsible for the September 11th attacks, for the express purpose of “prevent[ing] any future acts of international terrorism against the United States by such nations, organizations or persons.”

    Over time, however, the authorization (the “AUMF”) has been augmented by interpretive gloss.  Both the Bush and Obama administrations – with subsequent ratification by Congress with respect to detention – have defined the AUMF to cover the use of force against not just al Qaeda and the Taliban as the groups directly responsible for Sept. 11, but their “associated forces” as well.   This interpretation provides the green light for hundreds of lethal operations in Yemen and Somalia directed at members of al-Qaeda in the Arabian Peninsula and al-Qaeda associated elements of al Shabaab. Some have suggested that members of al Qaeda in the Islamic Maghreb (operating in Mali) and the al-Nusra Front (operating in Syria) should be – or already are – covered by the 2001 AUMF and are therefore legitimate targets as well. To add to the confusion, the Obama administration refuses to publicly state which groups fall within the scope of “associated forces,” thereby raising fears of an ever-expanding war against an ever-expanding enemy based on an ever-expanding interpretation of the AUMF.

  • September 6, 2013
    Guest Post

    by Chris Edelson, assistant professor of government in American University's School of Public Affairs. He teaches classes on the Constitution and presidential power. Edelson is author of the forthcoming book, Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, which will be published by the University of Wisconsin Press in November 2013.

    It was an encouraging development for the rule of law when President Obama decided to ask Congress for legislative authorization to take military action in Syria. When Obama took office in 2009, it was reasonable to expect that his administration would move away from the Bush-Cheney-Yoo unitary executive model, which was essentially an argument for unchecked presidential power. However, while the Obama administration has certainly not embraced the outlandish unitary executive theory, it has, at times, found ways to skirt limits on presidential power.  The most prominent examples are probably the targeted killing, without judicial hearing, of U.S. citizens believed to be terrorist leaders and the administration’s decision to order military action in Libya in 2011. As I have argued elsewhere, in each case, executive branch lawyers in the Obama administration found ways to justify unilateral presidential action unchecked by the other branches of government. 

    Obama’s decision to involve Congress in the debate over the use of military force in Syria suggests a meaningful acknowledgment that presidential power is accountable to checks and balances.  As I have written for the Los Angeles Times, Obama’s decision to seek congressional approval was required by the Constitution since the United States has not been attacked by Syria. However, it was far from clear that Obama would turn to Congress. Advocates of  presidential power point out that past practice -- including Obama’s own action in Libya -- supports the conclusion that presidents can more broadly use military force when it is in the national interest, and not only when the U.S. is attacked. The fact that Obama did not act on his own is a positive sign and may help prevent future presidents from unilaterally using military force (picture a hypothetical President Ted Cruz deciding the national interest justified an attack against Canada).

    There is reason to contain one’s optimism, though, when it comes to setting new limits on the use of presidential power. Obama has stated that he reserves the right to use military force even if Congress declines to pass authorizing legislation. That is disconcerting, and simply does not make a great deal of sense. What is the point of Congress making a decision if it is merely an advisory opinion?  If Congress decides not to authorize the use of military force in Libya, Obama should respect that decision and should not act on his own. Unilateral action under these circumstances would be a dangerous decision for the Constitution, and could also be a bad political move.  Some Republican members of Congress have made clear that they are eager to find a reason, any reason, to impeach President Obama and remove him from office.  To date, there is no legitimate reason to support such an idea.  However, if Obama ordered military action in defiance of Congress, that could provide his political opponents with a legitimate argument for impeachment.

  • August 9, 2013
    Guest Post
     
    A United States intelligence employee sends classified government documents to the news media and ignites a national debate. Some hail him as a hero and whistleblower, others denounce him as a traitor. You might think we are talking about Edward Snowden, the National Security Agency contractor who disclosed  details of PRISM, the NSA’s massive surveillance program in  June. But we are also talking about Daniel Ellsberg, the Department of Defense consultant who provided  the Pentagon Papers to The New York Times 40 years ago to reveal the truth, which help end the Vietnam War.
  • July 30, 2013
    Guest Post

    by Michael German, senior policy counsel at the ACLU’s Washington Legislative Office and a former FBI agent.

    My American Civil Liberties Union colleagues and I have been extremely busy since the Guardian and the Washington Post published leaked classified documents exposing the scope of the government’s secret interpretations of the Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act, which allow the FBI and NSA to spy on hundreds of millions of innocent Americans. We haven’t written much about the alleged leaker of this information, Edward Snowden, however, mainly because we took his advice to focus on what the NSA and FBI were doing, rather than on what he did or didn’t do. (See exceptions here and here).

    But I did want to clear up a question that seems to keep coming up: whether Snowden is a whistleblower. It is actually not a hard question to answer. The Whistleblower Protection Act protects “any disclosure” that a covered employee reasonably believes evidences “any violation of any law, rule, or regulation,” or “gross mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety.”

    In the two months since Snowden’s alleged disclosures, no fewer than five lawsuits have been filed challenging the legality of the surveillance programs he exposed. The author of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), called the scope of data collection revealed in one of the leaked Foreign Intelligence Surveillance Court orders “incredibly troubling,” and “an overbroad interpretation of the Act” that “raise[s] questions about whether our constitutional rights are secure.”

  • July 26, 2013
    Guest Post
    by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law 
     
    Liberty University v. Lew, the Fourth Circuit’s recent decision about the Affordable Care Act [ACA], should please no one. The opinion demonstrates the dangers of exempting religious organizations and individuals from the law. Take your pick. The court either exempted too many, or too few. Its middle ground unsatisfactorily addresses the First Amendment challenges to the Act.
     
    Individual plaintiffs and Liberty University opposed the individual and employer mandates of the ACA. The individual mandate requires individuals to obtain minimum essential health care coverage or pay a penalty in their taxes. The employer mandate requires employers to provide affordable minimal essential health care coverage to full-time employees or face a tax penalty.
     
    All plaintiffs are Christians morally opposed to abortion except to save the life of the mother. The most straightforward of their complaints alleged that their mandated insurance payments would wind up paying for abortions in violation of their constitutional and statutory rights. This is the simplest exemption argument in the case: plaintiffs think they should be exempt from the ACA because it burdens their religion.
     
    The court quickly dismissed that argument. Under the Free Exercise Clause, it ruled, the ACA is a neutral law of general applicability that applies to everyone without singling out religions for disfavor. Moreover, the court decided, plaintiffs’ religion was not burdened by the mandates. Although plaintiffs alleged that their money would be used for abortion, other provisions of the ACA required that a plan without abortion coverage would always be available as a choice for consumers. Without a substantial burden on religion, neither the Free Exercise Clause nor the Religious Freedom Restoration Act (which prohibits the federal government from substantially burdening religion without a compelling government interest) was violated.