Balkinization  

Saturday, December 08, 2007

Whitehouse blames the White House, but he should blame Congress

JB

This speech by Senator Sheldon Whitehouse accuses the Bush Administration of dictatorial powers. The Senator read classified OLC opinions that stated that the President is not bound by previous executive orders, that the President can determine for himself how they apply and whether to revoke them, that the President can waive orders by merely disregarding them in practice, and that the Justice Department must obey the President's determinations with respect to the operations of Executive Orders.

Whitehouse is angry at these opinions largely because he believes they permit the President to change a previous executive order that limits surveillance of Americans abroad to those the Attorney General believes to be agents of a foreign power. Absent this executive order, the President can spy on Americans abroad for reasons having nothing to do with their relationships to foreign powers because of the PROTECT America Act passed last August.

It's important to separate out these two issues: whether the President can change Executive Orders unilaterally and whether the PROTECT America Act's elimination of civil liberties protections for Americans was a good idea.

There are good policy and rule of law reasons for designing the Executive Branch so that the President cannot easily cast aside decisions concerning surveillance practices made in previous Executive orders. But that is not how Congress has organized the Executive Branch under its horizontal powers under the Necessary and Proper clause. (I put aside the interesting question of the possible limits of Congress's powers in this respect). Executive orders of the kind at issue in this controversy are not treated the same as rulemaking decisions by administrative agencies, which cannot be easily or arbitrarily abandoned.

The OLC opinions that Whitehouse saw (at least judging from his report of them) do not make the far more troubling claim that the President could disobey FISA under his Article II powers. That claim, which has been offered by various supporters of the Administration in the past, would truly make the President more like a King.

The real problem, as Whitehouse well knows, is not the President's decision to change executive orders to expand what he may do under the auspices of the Protect America Act. The problem is the Protect America Act, which shredded civil liberties protections by redefining a wide swath of electronic surveillance as not "electronic surveillance" under the meaning of FISA.

Whitehouse doesn't like the Protect America Act any more than I do. But he should direct his fire at the Congress that produced it last summer in a shameless display of capitulation to demagoguery and fear mongering. The Protect America Act was completely unnecessary to ensure that the President had the ability to engage in surveillance on foreign terrorists abroad, even if their communications ran through the United States. If Congress regulated the President's surveillance practices as it should, the President would be required to obey those laws; he would be required to take care that the laws be faithfully executed. If the President then refused to obey an amended FISA, Whitehouse's complaints about the White House would be fully justified.

Indeed, the White House has illegally refused to obey FISA from at least 2001 until the passage of the Protect America Act, and Whitehouse should be blaming the White House for that.

Comments:

Yes it is way too facile for Members of Congress to complain about the Executive when those Members of Congress are at fault for selling our rights down the river.
Best,
Ben
 

The OLC opinions that Whitehouse saw (at least judging from his report of them) do not make the far more troubling claim that the President could disobey FISA under his Article II powers

Ummm - IANAL, but wasn't there a third OLC opinion mentioned by Whitehouse - to the effect that the president could decide whether what he was doing was a legal exercise of his Art 2 powers?

Wouldn't such an opinion cover this? If not. why not.
 

Whitehouse is just displaying his partisan ignorance. There is no such thing as executive common law with stare decisis, nor should there be.

The orders of prior Presidents who are no longer in office survive only at the pleasure of the current President.

Elections have consequences. The purpose of turning out the last bum and replacing him with the bum you elected is so that the newly elected bum can change policy to something closer to your viewpoint.

Moreover, an OLC opinion is merely that - a lawyer's opinion. It has absolutely no legal authority. An OLC opinion cannot make FISA any more or less constitutional. The President can lawfully ignore FISA limitations of foreign intelligence gathering only if such limits are beyond Congress' powers, not merely because the OLC tells him he can.

All these complaints are a sideshow. The real complaint is that popular opinion and in turn Congress in its legislation supports giving the NSA a pretty free hand to gather intelligence against terrorist groups like al Qaeda. Lobby against it or live with it.
 

I've got the same question as wringe. Doesn't this legal proposition, which Whitehouse transcribed from the OLC opinions, reach beyond the issue of executive orders? Here it is:

2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
 

Blaming Congress for passing an ill-advised law is somewhat akin to blaming American people for electing GWB to the highest office in the land.

In both cases, as regrettable they were, a skillful play on the fear of terrorism played a decisive role. So in a sense Congress just proved that they are truly fully representative body as they should be in democracy. Got taken as we were.

Blaming Congress is kind of useless - it's like blaming ourselves, can be done, but what's the point?

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The other point is good, blaming GWB for breaking the law (FISA for example) or even failing to "faithfully execute the laws" is a totally different ball of wax, there is a single perpetrator here that can be prosecuted, even thrown in the prison if so adjudicated.

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The real problem appears to be this. Cheney and his people claim they are required to faithfully execute only the laws they agree with. Which is an unacceptable usurpation of powers because under that theory Congress can pass anything, but whether what it passes will become the law of the land will depend on what Cheney/Bush think of it. That makes them worse than a third fiddle in the constitutional order of things which is not a good thing.

Here is a simple, perhaps naive proposition - each and every law passed by Congress is immediately binding on everybody, including Cheney and Bush, no exceptions unless somebody with sufficient legal standing (a group of senators, president himself, etc) asserts unconstitutionality and takes it to the Supreme Court or something equivalent (Constitutional Tribunal for example) for a mandated adjudication.
 

.. There is no such thing as executive common law with stare decisis, nor should there be. ..

Fine, but the Administration specifically invoked old Reagan's executive orders to deflects worries about powers they were giving themselves in the PROTECT America Act. Basically they were saying - yeah under the PROTECT Act we could now do all sorts of bad things, but don't fret, old Gipper's orders prevents us from doing them.

So do they or don't?
 

wg:

The President may of course reaffirm an order of a past President as if it were his own and his or her subordinates have to follow that order.

In the case of the TSP, the President or his designees have established elaborate minimization procedures about which they have spend hours briefing Congress' intelligence committees, if not certain grandees on the Judiciary Committee.
 

... The President may of course reaffirm an order of a past President as if it were his own ....

And another can disown it so what's the value of such declarations?

This whole thing makes little sense. If it is true as you seem to be saying that EOs and signing statements can decide which laws are binding under any particular administration we do not have a nation of laws, instead we have a nation were laws depend on the executive whim, a proposition I'm having serious trouble with. Going back to a simple proposition that laws are binding on everybody unless declared unconstitutional (in part or toto) would help a lot.

The important lesson here to Congress and us is this. Do not leave something as fundamental as the right to be free anywhere on the green Earth from warrantless government snooping to the good will of those who have the means to abuse it.
 

-wg- said...

... The President may of course reaffirm an order of a past President as if it were his own ....

And another can disown it so what's the value of such declarations?


A President's EO is merely a formal written order instructing the President's subordinates what they may or may not do. An EO has no binding effect on a President him or herself and can be changed whenever the President sees fit to do so.

Nor does a President's order need to be public. If the EO concerns classified matters, then the EO itself should be classified.

If Congress' intelligence committees want to perform oversight over the NSA, then they should ask the NSA what it is doing and not whine that the President is not publicly reversing classified EOs with great fanfare.
 

Moreover, an OLC opinion is merely that - a lawyer's opinion. It has absolutely no legal authority. An OLC opinion cannot make FISA any more or less constitutional. The President can lawfully ignore FISA limitations of foreign intelligence gathering only if such limits are beyond Congress' powers, not merely because the OLC tells him he can.

Indeed. So, in nteh words of "JaO", "Tell it to the judge!!!"

But so far, Dubya has resisted this at every point and level possible, and lost pretty much every time he's done so.

So, Dr. Watson, what do you conclude?

Cheers,
 

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