Separation of powers

  • 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.

  • December 9, 2014

    by Caroline Cox

    Vikram David Amar writes at Verdict why the federalism lessons of the 2012 Affordable Care Act case weaken the argument in King v. Burwell.

    In Reuters, Joan Biskupic, Janet Roberts, and John Shiffman consider the small group of elite lawyers that dominate the Supreme Court docket.

    Conor Friedersdorf of The Atlantic writes about applying the “broken windows” theory to the police.

    At Bloomberg View, Noah Feldman reviews the recent Supreme Court case on Amtrak that considers how much lawmaking authority Congress can delegate to other bodies.

  • February 3, 2014
    Guest Post
    by Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; former Associate Counsel to the President and Chief Ethics Lawyer, White House Counsel's Office (2005-2007); co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations"
     
    Senator Rubio of Florida is now one of the strongest contenders in the GOP for president. He is qualified and likeable and thus far has a clean record on ethics. One or more of Rubio’s Senate colleagues also might have a shot at the nomination. There are other good candidates as well. And Republicans, if they can get their act together, have a very good chance of electing a president in 2016. 
     
    One of the most important things a new president will do is appoint judges, the job that our current president has been trying to do for the past five years. The president will need the advice and consent of the Senate to make these appointments, but courts need judges, and presidents and senators have an obligation to make sure vacancies on courts are filled.
     
    And the place where senators should care most about filling judicial vacancies should be their own home states. The interests of constituents in access to judges and justice should be a priority over playing partisan politics.
     
    And this is why, until recently, it usually was not a problem for the Senate to allow home state senators an informal veto—implemented through the so called “blue slip” process—over confirmation of judges in their own states. Senators might try to block nominees from other states with filibusters and other tactics, but would protect their own constituents by working out a deal with the White House for nomination and confirmation of an acceptable nominee in their state.      
     
  • January 13, 2014

    by Nicholas Alexiou

    The Supreme Court heard an atypically long oral argument this morning in National Labor Relations Board v. Noel Canning et al. The 90-minute argument (as opposed to the standard 60 minutes) focused on the Constitution’s Recess Appointments Clause which states that “[t]he President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

    Presidents have been making recess appointments since the founding; in fact President George Washington employed a recess appointment to name John Rutledge the Second Chief Justice of the United States, though his nomination was eventually defeated by the Senate. There has long been a political understanding which has governed recess appointments. In a recent ACS conference call, David Strauss, Gerald Ratner Distinguished Service Professor of Law and ACS National Board of Directors member, noted that, for example, since the administration of President James Monroe, it has been understood that a vacancy need not arise during a congressional recess in order for it to be filled via a recess appointment. However, this political consensus may soon collapse as the Court fully examines the clause for the first time.  

    The case before the Court deals with the validity of a 2012 National Labor Relations Board (NLRB) decision rendered by a panel made up of three members of the five-member Board.  President Obama had appointed two of the three members to the Board via a recess appointment. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed with Noel Canning (a division of the Noel Corporation) that the recess appointments to the NLRB were unconstitutional. During the recent ACS call, American Enterprise Institute Resident Scholar Norman J. Ornstein called the D.C. Circuit’s decision a “breathtaking exercise of judicial activism.” On appeal, three questions are before the Court: whether a president’s recess appointment power is limited to inter-session recesses, or if it extends to intra-session recesses; whether a recess appointment can fill any vacancy, or if it is limited to those vacancies, which arose during the recess; and whether recess appointments can take place when the Senate is meeting every three days in pro-forma sessions, a practice that has become increasingly frequent in recent years as partisan rancor has escalated.

  • December 2, 2013
    BookTalk
    Emergency Presidential Power
    From the Drafting of the Constitution to the War on Terror
    By: 
    Chris Edelson

    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs

    In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship.  That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.”  Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003.  Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.

    The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering.  According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security.  This is an enormous power: critics charge that it effectively places the president above the law.  Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.