Balkinization: Balkin and Posner on Article II -- Part II

Balkin and Posner on Article II -- Part II

Marty Lederman

Jack and Eric Posner have a new Bloggingheads episode up, dealing principally with Bush's aggrandizements of executive power. Characteristically excellent and provocative, although supiciously truncated at the end. . .

I have some minor quibbles, however:

Jack says at one point that all Presidents since Nixon have claimed that the War Powers Resolution is unconstitutional. To the extent Jack is referring to the principal provision of the WPR, prohibiting the President from engaging in military hostilities for more than 90 days without congressional authorization, the notion that Presidents have uniformly condemned its constitutionality is often asserted, but that don't make it true. The statute is plainly constitutional, in my humble opinion; but more to the point, it's simply not the case that every President has claimed it's unconstitutional. Nixon did so before the law was enacted; Reagan suggested it at one point; and John Yoo (Bush's surrogate, presumably) stated it in his September 25, 2001 memo. But that's it. The Carter Administration, for instance, specifically concluded that it was constitutional, and the Clinton Administration carefully avoided saying otherwise (going to great trouble, for instance, to try to argue that the WPR was satisfied in the case of Kosovo).

Eric suggests at another point that the Bush argument about preclusive presidential power to ignore statutes is one that Presidents have long embraced, and that it was suggested in AG Robert Jackson's opinion justifying the trade to Britain of destroyers for bases. That's not true, either. (Nor, in my view, was Jackson's statutory analysis quite as absurd or indefensible as Eric suggests -- but that's a very arguable point.)

Finally, Eric (and, to a lesser extent, Jack) suggests that Bush could have obtained from Congress almost all the authority he has exercised, even if he had never relied on the Article II override theory, and that therefore our complaints on Balkinization about Bush's failure to abide by the law are somewhat academic, abstract concerns, with minimal substantive implications. Jack provides some excellent reasons why we should be concerned even if Eric were correct that Bush could have gotten everything he asked for. But I also think it's a mistake to assume that Bush would have gotten everything he asked for (even in the wake of September 11th, for instance, the idea of amending FISA to authorize the NSA's domestic surveillance was a nonstarter in Congress -- Bush has only succeeded on that score more recently because he broke the law and established a new baseline of what NSA was able to surveille), and, more broadly, I think David Addington is correct that the Executive's more aggressive practice of asserting a preclusive Article II power to ignore statutes and treaties does, over time, have a substantial substantive impact.

More detail on all of these points in Part II of my recent article with David Barron, which will be published in the next couple of weeks. (Part I can be found here.)

Posted 9:13 AM by Marty Lederman [link]

Comments:

Why didn't Jack or you challenge Posner's extended argument that it is OK to make ridiculous, untenable legal arguments as Jackson did on Lend Lease and Bush's OLC did on torture, provided they are morally and politically correct policies at the time? Do you, and should I, really accept that as proper analysis? Posner's interview made it sound like you are being silly to think the law will not be manipulated that way by Presidents. Is that the best we can do on this critical juncture of law and Presidential authority.

# posted by

michael75we : 12:01 PM

I hope your next article has more concerning that last point--that the issue of the President's inherent Article II C-in-C power will continue to matter after January 2009. Although I enjoyed the first tremendously, I couldn't help but feel a little let down by the title of Part II of your first piece: you convincingly showed why the problem was now acute, but I don't see why it will continue to be important after Bush passes from the scene.

I think, in the future, even Presidents who strongly desire the ability to surveille/torture/detain persons without trial will draw the Jack Goldsmith lesson from the Bush Presidency: trying to unilaterally assert presidential power will provoke resistance, but allowing Congress to give you all the power you want isn't very hard. In other words, we will return to the paradigmatic case of a strong executive and a supine Congress that you say has been pushed to the side. To the extent that Congress has previously tried to limit executive power, the executive need only ask, and he (or she) shall receive.

Even your shifting-baselines argument doesn't really seem to say why the President's inherent Article II commander-in-chief powers matter. Look at what is happening now with FISA: the President is able no only to make his current illegal activities legal, but to immunize even private entities from civil liability. Between the power to get Congress to retroactively ratify whatever you do and the pardon power, what more does the President need? What would a strong Commander in Chief power add?

# posted by

Andrew : 12:27 PM

Maybe it would be helpful if OLC opinions were reviewed by the Supreme Court. Somehow I trust the Supremes to keep quiet about these matters, and still offer reasonable advice. It seems pretty strange that OLC can immunize anyone without a basic review.

# posted by

rmadilo : 10:01 PM

I thought Jack's values of law, rationality amd liberty, with a healthy emphasis on the latter, gave point to a missing element in his model that I wish had been taken up.

It was at most dimly in the minds of the republican framers, but it's not entirely absent, and it's somethimg I believe Jack would have included if asked. At least I'd like to think so.

A well-balanced separation of powers gets you only so far with a presidency that rules by charisma and, more importantly, from the top down, as a permanent war footing and governance through evermore powerful, outcome-determinative market mechanisms and agents have come to require.

A corrective sorely lacking, whose absence the coordinate branches can do only so much to make up for, and which we are only beginning to see to, is a better informed and more outspoken citizenry.

# posted by

Occasional Observer : 12:03 AM

RE michael75we's comment, I think it's perfectly reasonable to provide the Executive with an attorney that will support his views and find any ridiculous legal justification for them. That's the OLC's job, to represent its client. Our president should have a lawyer after all.

Posner asserts that Congress is the counterbalance. If Congress wishes to lie down and accept what OLC/Executive are doing, fine. If not, they should assert their powers and put a stop to what OLC/Executive is doing. I think this makes sense.

The problem is not that the OLC exists. The problem is that instead of being viewed as only the Executive's attorney, it is being viewed as a judge and jury as well.

In light of Mukasey's testimony this week, it's become clear that at this stage, Congress has been stripped of all of its tools to counter Executive/OLC.

That's the real issue here. Either OLC needs to be split from the justice dept. or Congress needs its own justice dept.

# posted by

Phaedrus : 5:13 PM

Tim: I think it's perfectly reasonable to provide the Executive with an attorney that will support his views and find any ridiculous legal justification for them.

I quote once more from the Michigan Lawyers Oath:

I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;

I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

I doubt Michigan has a corner on such sentiments.

# posted by

Robert Link : 5:39 PM

Re Tim and R. Link post on my comment-No I do not agree that a lawyer, especially one employed by the USA - albeit for the President- may make any ridiculous argument justifying Presidential actions that may, in more sober reflection, violate the law and would likely be held to do so, if judicial review were available. Legal precedent often does and should restrain citizens and Government. More to the point about the Posner interview, Posner states the President will ( and should?) disobey the law if the is a political and moral necessity to do so, as he states happened with the Lend Lease supply of England before USA entry into WWII. He states the OLC will give the President legal cover for doing that. My question to our Blog experts is Should the OLC give the cover if it is politically and morally good but illegal?

# posted by

michael75we : 7:50 PM

Should the OLC give the cover if it is politically and morally good but illegal?

No. The correct answer is the one Jefferson gave:

"It is incumbent on those ... who accept of great charges to risk themselves on great occasions, when the safety of the nation, or some of its very high interests, are at stake. An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences. The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.”

Jefferson's point is clear: the executive may sometimes have to act in violation of the law, and should have the courage to do. His remedy lies in the justice and mercy of the nation, not in trying to write himself an exculpatory legal opinion.

This is a point Arne has made several times. Even if the "ticking time bomb" scenario were actually to occur, that does NOT mean torture should be legal. It means only that in cases of true necessity, we may choose to forgive the crime in consideration of the circumstances.

# posted by

Mark Field : 8:58 PM

Jack, you're a prince.

why can’t Poser admit that when it comes to tracking down terrorists, he doesn’t want Congress preventing or questioning the president’s actions?

After listening to Posner's tiresome, cynical masquerade, one admirers Callicles and Hobbes.

Marty, let's hear more about the Clinton arguments on Kosovo. Were his actions illegal?

# posted by

redwood : 10:47 PM

Mark Field: ...in cases of true necessity, we may choose to forgive the crime in consideration of the circumstances.

Many folks seem to think that punishment or retribution are all there is to justice. How refreshing, then, your statement above.

The counter argument would seem to go, "Why not try to anticipate and codify predictable circumstances in which such forgiveness should be meted out?" You bolded part of the text you quoted, but for me this was the money shot: It is incumbent on those ... who accept of great charges to risk themselves on great occasions,. Modern "leaders" do not accept risk to themselves, nor should we make any policies based on such sentiments. Rather, our "leaders" are the privileged elite and our only hold over them is that extent, if any, to which following the will of the people is seen as advancing their interests. That being the case, to answer my own question about codifying forgivable circumstances, I say, "No." These jobs need be made more risky, not less.

# posted by

Robert Link : 7:18 AM

michael75we: ...Why didn't Jack or you challenge Posner's extended argument that it is OK to make ridiculous, untenable legal arguments...

Been meaning to ask, is this the spawn of the Posner who tells us that where obeying a regulation would cost a corporation N, and paying penalties for violating same would cost M, and N minus M is greater than zero, then said corporation has a duty to break the law? Aren't we really just hearing more of that same argument, that "economy" or "efficiency" trumps law and is the only measure of justice?

...Posner's interview made it sound like [Balkin was] being silly to think the law will not be manipulated that way by Presidents.

Posner knows our host considers waterboarding, and warrantless domestic spying, and kidnapping illegal, and that Balkin deems irresponsible claims that the Constitution grants Presidential power to perform such illegal acts. Posner breathlessly derides, "What's the big deal?...[it's] not abuse of power if you're engaging in what you could have done anyway!" Since Posner phrased his question in general terms of the Article II arguments and Balkin had already agreed that Balkin, like Goldsmith, thinks Congress might well have granted any powers asked for, Posner seems to get away with this sleight-of-hand. But in polite circles such fallacies of division are frowned on, and it seems far beyond being merely unfortunate that someone of Posner's station can, would, and does think so lightly of the restraints and checks which are our only safeguards against tyranny.

As for the question, "Why didn't Jack balk?" (sorry, couldn't resist) I'd love to hear his answer. But one thing that comes to mind has to do with a general weakness in the liberal/progressive approach in general: We let the other side ask the questions. Looking at that video I couldn't help thinking about the difference in Jack's engagement with the camera, open, transparent, as contrasted with Posner's preoccupation with notes on his desk or something up above eye level on his right and how his only contact with the camera, and thus Jack and the audience was an occasional flash as his eyes crossed from one to the other. Posner looked like he was trying out for a job as a senate investigator; Jack looked like he was talking to a colleague. Posner asked pointed questions to presuppose the illegitimacy of Jack's positions. Jack seemed to answer in good faith and with no concern that his interlocutor might be less than totally free of guile. And that is undoubtedly the biggest mistake I see liberals/progressives making again and again, taking our interlocutors at face value and granting them benefit of the doubt long after they have proven themselves to be cheats.

# posted by

Robert Link : 8:42 AM

Link's post makes the best pun in a legal question on this Blog: "As for the question, "Why didn't Jack balk?" (sorry, couldn't resist) I'd love to hear his answer."
Good clarification about how Posner argues and Jack's line of thought, but I would love to hear the answer from the man himself.

When the law would require a result that is very wrong for national defense or is immoral, maybe the wisdom is sometimes the OLC/AG has to resign, sometimes he has to make the bad legal argument that gets the political/moral result, and sometimes a lawyer has to tell his client, No and to obey the law.

To smirk at the law as Posner appears to do in the interview, does not clarify how all of those "sometimes" should be played out.

# posted by

michael75we : 9:15 AM

RE Mark's post. I do think that's essentially what Posner was saying. "Sometimes a president's got to do what a president's got to do."

In doing so, he should ask the OLC for any legal precedent he can use to justify it. I was overreaching in my previous statement, but the idea is the same. OLC is perfectly within normal legal behavior if it adopts an unconventional view for its client, as long as there is SOME justification for it. I'm not defending what's been done. Just saying I can understand the viewpoint.

Posner further goes on to say, in essence, that a president acting more or less illegally under flimsy OLC support is throwing himself on the mercy of Congress.

It's up to Congress, then, to say either "hey, he was acting in the country's best interest and we agree. Let's leave it at that," or "WTF? He can't do that! Let's go after this bastard!"

I think that's a fair process. Only problem, again, is that Mukasey has stripped Congress of it's ability to try option 2 without launching impeachment proceedings or appointing an independent council. That seems a very extreme arrangement that limits Congress' oversight power far too much.

# posted by

Phaedrus : 3:24 PM

Tim: OLC is perfectly within normal legal behavior if it adopts an unconventional view for its client, as long as there is SOME justification for it.

If that's what were going on or anything remotely resembling same then this might be a good argument. But in reality the OLC, in the body of Yoo and others, is arguing for exactly the kind of despotism, the kind of unrestricted tyranny, that our nation was contrived to prevent. In lesser law it is malpractice to counsel your client to break the law. The only difference between that level and this is that the average lawbreaker has no reason to believe he can conveniently re-write the laws by which he must live. Without a complicit Congress (both parties!) and a complacent populace (save us from bin Laden!) this particular lawbreaker would be more easily seen for what he is.

# posted by

Robert Link : 11:40 PM