Separation of powers

  • 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.

  • November 6, 2013
    Guest Post
    by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
     
    Editor’s Note: This Thursday, November 7, the ACS Pittsburgh Lawyer Chapter and the University of Pittsburgh School of Law Student Chapter will host a Supreme Court Preview featuring Professor Tushnet and Professor Jules Lobel of the University of Pittsburgh School of Law.  To hear more from Professors Tushnet and Lobel about Bond and the rest of the Court’s October Term 2013, please RSVP here.
     
    The Roberts Court is properly described as a business-friendly Court. It’s also a Court that is sort of friendly toward federalism, as the commerce clause holding in the Affordable Care Act decision – though thankfully not the ultimate outcome – shows. But, federalism and business interests sometimes come into conflict. Businesses operating on a national scale often hope that Congress will preempt state regulations, so that they face only a single national rule rather than fifty or more regulations different in every state and sometimes in a bunch of cities. And, when Congress doesn’t make it clear that its statutes preempt state regulations, businesses want the Court to interpret federal statutes to be preemptive.
     
    On Tuesday, the Court heard oral argument in Bond v. United States, a bizarre case on its facts that raises important questions about the scope of Congress’s power to enact statutes implementing treaties. The arguments suggested that some of the Court’s conservatives, and perhaps Justice Breyer, were inclined to say that Congress couldn’t use its power to implement treaties to reach truly local activities (although the precise formulation of the restriction they might adopt wasn’t clear).
     
    Everyone seemed to agree, though, that the Bill of Rights limited the power to implement a treaty. And, whatever you might say about the treaty power and federalism, that does indeed seem to be a consensus position.
     
    The consensus might be on a collision course with business interests, though, for the same reason that businesses sometimes favor preemption and national regulation over state regulation. In a forthcoming article in the Harvard Law Review, Marvin Ammori describes what he learned from general counsels at major commercial disseminators of information over the internet. For them, Ammori reports, Congress is basically just one state legislature or city council trying to regulate their activity along with a whole bunch of other legislatures – parliaments in France and Japan, and everywhere else. And, just as with preemption, these businesses might want to replace a system of lots of different regulations with one regulatory system.
  • November 5, 2013
    Guest Post
    by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
     
    Editor’s Note: This Thursday, November 7, the ACS Pittsburgh Lawyer Chapter and the University of Pittsburgh School of Law Student Chapter will host a Supreme Court Preview featuring Professor Tushnet and Professor Jules Lobel of the University of Pittsburgh School of Law.  To hear more from Professors Tushnet and Lobel about Noel Canning and the rest of the Court’s October Term 2013, please RSVP here.
     
    Courts of appeals panels with majorities appointed by Republican presidents have teed up a problem for the Supreme Court: Are the Court’s Republican appointees devotees of originalism or executive power – or, will they use originalism as an excuse for supporting executive power when the executive is a Republican but for opposing it when the executive is a Democrat?
     
    National Labor Relations Board v. Noel Canning involves the president’s power to make recess appointments. Filibusters over nominations to the National Labor Relations Board had paralyzed the NLRB (aided and abetted by a Supreme Court decision holding that the NLRB couldn’t act through panels of fewer than three members), when Republicans in the Senate refused to go forward with nominations to fill three vacancies on the five-member board. Republican Senators also refused to allow a vote on the nomination of Richard Cordray to head the Consumer Financial Protection Bureau because they opposed the Bureau’s existence (and by law, the Bureau’s powers were quite limited in the absence of an agency head). President Obama responded by seizing on a technical “recess” in the Senate – a series of days out of session punctuated by minutes-long “pro forma” sessions – as the basis for making recess appointments to the NLRB and the CFPB.
     
    With its new “members” on board, the NLRB entered an order against Noel Canning, which appealed. The U.S. Court of Appeals for the D.C. Circuit held that President Obama didn’t have the power to make the recess appointments because the recess appointment power allowed him to make appointments only when the Senate was between its major sessions – basically, between the adjournment of the House of Representatives pending an election and the new House’s convening. (A majority of the court of appeals also held that the recess appointment power extended only to vacancies that arose during that same period – not to vacancies that extended into a session of a sitting Congress.)
  • 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.