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Saturday, November 01, 2008

The Dellinger Memo

Stephen Griffin

I meant to comment on the Dellinger memo a few weeks ago when I was zooming by it in my foreign affairs class. But better late than never. This was an OLC memo issued in 1994 during the Clinton administration by Walter Dellinger that addressed the knotty question of presidential authority to decline to execute unconstitutional statutes. This is one of the most difficult questions in constitutional law and goes to the heart of the point of view known as “the Constitution outside the courts,” a view I happen to agree with. But I don’t agree with the tone or substance of the Dellinger memo, although I have the highest respect for Professor Dellinger, one of our leading scholar/lawyers. He would be on anyone’s first squad of constitutional all-stars.

The Dellinger memo’s importance goes beyond the difficulty of its subject. It was relevant to and was invoked in controversies during the Bush administration over signing statements, the torture memo, and NSA surveillance. In particular, it was relevant to the development of the “commander in chief override” argument. The Dellinger memo is also cited in the recent (Oct. 25 NYT story) controversy over executive branch refusal to comply with a statute requiring reporting to Congress of privacy information without executive branch review. I’m not claiming Dellinger was on the side of the administration in any of these controversies, excepting signing statements, which he defended against the ABA report criticizing them.

Obviously, giving executive branch officials the idea they can violate (or recommend the violation) of federal law on constitutional grounds is heady stuff. One can quickly become accustomed to a sort of will to power by invoking the principle that the Constitution is superior to ordinary statutes and because the president must judge for himself whether a statute is unconstitutional, a conflict could be grounds for ignoring the law writ small in favor of the Supreme Law Writ Large as stated in Article VI. So it is commendable that the memo shows some caution about recommending that the president decline to execute an unconstitutional statute. The memo states the president should presume congressional enactments are constitutional and be guided by the Supreme Court’s probable determination that a given law is constitutional. Even after deciding a law is unconstitutional, a decision not to comply must be made after “careful weighing” of various factors. But these cautions are counterbalanced by considerations that might cause presidents to be unduly combative. The memo contends: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.” He must “defend his office.” The memo seems to say this would normally be through litigation, so the Court would make the final decision. However, if the dispute is not justiciable, the president “must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President’s authority as Commander in Chief.” This argument sounds familiar. It resembles the gospel according to David Addington, John Yoo and VP Cheney, although I imagine that’s not what Dellinger had in mind.

What’s wrong here? There are too many pieces missing from a puzzle that is far more complex than the memo lets on. To start, the memo does not distinguish clearly enough between a situation governed by Supreme Court precedent and one where the president is relying on his own judgment. In the former case, Congress has presumably passed an unconstitutional statute by mistake and it would be wrong for the president to ignore a Court decision on point. In the latter case, the president is by hypothesis without the support of the Court and is therefore creating his own precedent. The memo ignores the obvious incentives for the president to mix policy and constitutional considerations and conclude that because he doesn’t like a particular law, that must mean it is unconstitutional. The memo attempts to cabin this possibility by telling the president to assess how likely it is that his position will be upheld by the Court. Setting aside that this would be a speculative endeavor, let’s think about this putative standard carefully. As Dawn Johnsen has noted in an article on the subject, refusal to enforce a law on the ground that it is “probable” that the Supreme Court will agree with the president’s position makes things too easy on the president. Probable by a plurality? 5-4? 9-0? Shouldn’t this drastic kind of resistance to law be exercised only in a clear case? That would mean 9-0. But if that’s the situation, it seems unlikely that Congress would have passed the statute in the first place. The bottom line is that imagining what the Court would do does not solve the incentive problem. If you have an incentive to think that you are right, that incentive will govern your belief about what the Court will do. The President will duly ponder and consider that surely the Court will see things his way.

If we focus on the situation where the President is declining to enforce the law without the benefit of doctrinal support, I think the memo’s approach needs to be more candid and respectful of history. Another way to describe a “decline” to enforce an “unconstitutional” statute is an impeachable offense. A failure to enforce the law is a breach of a clear presidential duty and so is always grounds for impeachment (whether to proceed with the impeachment process is a separate issue). Defenders of the memo will point out that it concerns the case of unconstitutional statutes and does not mean to put in question the president’s general duty to uphold and enforce the law. But that is why I first considered the question of whether there is a clear standard by which to judge whether a statute is unconstitutional, one free of the influence of policy or politics. The only way I can see forward is to assume the President cannot act except on the advice of a relatively independent, expert body inside the executive branch whose job it is to assess the unconstitutionality of statutes. That might provide him with a defense against the charge of politics, as well as ammunition for any impeachment proceeding. So Dellinger’s OLC opinion seems to assume the existence of, well, OLC itself. The problem is that we have seen how OLC can be compromised by White House influence. There is no easy way around this problem.

Furthermore, aside from the one clear example of the Tenure of Office Act (which could have been tested in the courts), history does not counsel respect for the Dellinger memo’s position. President Andrew Johnson may have sincerely believed that congressional reconstruction was unconstitutional, but his actions obstructing the enforcement of those laws was one of the darker pages in constitutional history. Giving the nuclear weapon embodied in the memo to President Nixon would not have made for a happy result. The memo is far too insouciant of the real risk of president overreaching. The memo exhorts the president to defend his office – against what? It would be more persuasive if there were well acknowledged examples of Congress trying to take over executive power. I realize Cheney thinks he lived through just such a period in the mid-1970s. But arguing that measures such as the War Powers Resolution unwisely decreased presidential power is different from arguing that they were unconstitutional. Cheney seemed to run the two together. He should have learned in civics class that a decrease in power does not necessarily imply that the other branch is aggrandizing their own power. Rather, they might be acting to restore checks and balances under changed circumstances. Of course, that is how Congress viewed itself in the 1970s and this is not easily shown to be wrong.

In any case, exhorting the President to “defend his office” is the wrong approach under ordinary circumstances. The right way is to assume good faith on the part of the Congress and to approach relations among the branches in a spirit of comity and reason. If the President is firmly convinced that a law is unconstitutional, he has plenty of means at his disposal to convince Congress to repeal it. A harder case is presented if the law is viewed as being directly intrusive on executive powers. But an OLC memo should encourage the President to ask whether his ability to function has seriously been interfered with as opposed to his policy plans or political aims. If the latter, then the nuclear weapon of defiance of the law should be safely stored away.



Comments:

Another way to describe a “decline” to enforce an “unconstitutional” statute is an impeachable offense. A failure to enforce the law is a breach of a clear presidential duty and so is always grounds for impeachment.

If a statute is unlawful because it violates the Constitution, I would suggest that Article II compels the President to enforce the Constitution and ignore the statute. To do otherwise is arguably the impeachable offense.

The only way I can see forward is to assume the President cannot act except on the advice of a relatively independent, expert body inside the executive branch whose job it is to assess the unconstitutionality of statutes.

Why? Prior to enacting a statute, the Congress did not need to consult a relatively independent, expert body inside the legislative branch whose job it is to assess whether the statute would be constitutional. Indeed, such a body would have no standing under the Constitution to make such decisions for either branch. While it may be wise for the President or Congress contemplating a questionable statute to seek legal advice, the decision is ultimately theirs to make.

It would be more persuasive if there were well acknowledged examples of Congress trying to take over executive power.

Choose any number of Vietnam era statutes where the Congress attempts to assume or delegate to the courts the President's plenary CiC power to direct the operations of the military. FISA is an excellent example.

In any case, exhorting the President to “defend his office” is the wrong approach under ordinary circumstances. The right way is to assume good faith on the part of the Congress and to approach relations among the branches in a spirit of comity and reason.

I would suggest that Presidents already follow that advice. It is incredibly rare that a President declines to enforce a questionable statute. In the case of FISA, Mr. Bush informed Congress from the outset that he would by bypassing FISA to implement the TSP and gave them fair warning.
 

The key point is that the president has plenty of opportunity to weigh in before a bill becomes a law. Whether the source of law is the OLC or the Supreme Court or elsewhere, the president can argue his case, marshal his party, and use the veto. Even if he loses, the president can rely on necessity, good motives, his own popularity or congressional inertia to defeat impeachment. The political branches can be expected to engage politically, which is one reason courts have avoided inserting themselves in inter-branch disputes. What becomes important in this post-Harlow v. Fitzgerald era is whether a president can give his minions an immunity bath single-handedly. We have relied on personal liability to restrain executive agents, e.g. the Anti-Deficiency Act and Bivens. The egregious claims of the Bush administration require positive actions, such as laws to revive lawsuits against Bush's unconstitutional policies or impeachments against Addington and Yoo and friends, to remove impunity and reinstate moral hazard.
 

A statute is only unconstitutional if the courts say it is. The president's duty is the execute the law, not decide unilaterally that the law doesn't apply to him or her. If the President believes a congressional statute is unconstitutional, he or she may file a declaratory relief action and obtain a court order to that effect. But the executive has no "judicial power" whatsoever, and therefore has no power to determine the constitutionality of statutes. Only the judiciary may do that.
 

Steve outlines a reasonable default position (that the President should comply with statutes) but is alarmingly casual about impeachment when the President departs from this default stance. In the quest for what Justice Jackson in the Steel Seizure case called a "workable government," the President needs some space for unilateral action. Consider FDR's decision to enter into the destroyer deal with Britain in 1940, which Jackson as Attorney General authorized with a strained interpretation of the Neutrality and Espionage Acts. Some have argued that FDR committed an impeachable offense when he agreed to the destroyer deal, but virtually all would agree that FDR's decision was the right policy move in dangerous times. An independent body of the kind that Steve recommends may have hindered this decision, to the detriment of United States (and global) interests. There is no substitute for wisdom and temperament in a President (I hope we will soon have a president who displays both attributes). Roosevelt and Jackson did comply with conditions Michael Walzer set out in his classic essay, "Politics and the Problem of Dirty Hands": their decision was transparent, subject to ratification by the legislature, and tailored to accomplish a specific goal. Requiring more would risk the "doctrinaire textualism" that Jackson cautioned against in his Youngstown concurrence.
 

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