Saturday, June 04, 2011

The Crisis of Presidential Legality: The Libyan War as a Test Case

Bruce Ackerman

In a recently published book review of The Decline and Fall of the American Republic, Professor Trevor Morrison vigorously contested my critique of the Office of Legal Counsel and the Office of White House Counsel . Given the seriousness of his effort – 62 pages in the Harvard Law Review –I owe him a response, which has just been published on-line by the Review.

I’m curious to hear how well you think I’ve done countering his critique. But for now, I want to relate the larger themes of the Morrison-Ackerman debate to the current issues raised by President Obama’s breach of the War Powers Act. The statute famously requires presidents to gain Congressional consent within 60-days of his initiation of “hostilities.” But Obama hasn't done so.

As Oona Hathaway and I have pointed out in a series of essays, this is a very serious breach of a provision whose constitutionality was explicitly upheld in an 1980 OLC opinion; it is also unprecedented; and the reasons that have been informally offered for the breach are insubstantial.

This remarkable breach by Obama is an embarrassment for Morrison’s general argument. Quite simply, he wants us to believe that John Yoo’s torture memos were deeply regrettable accidents — in his words, the result of a “combination of political, ideological, and psychological factors to which no structure could ever be entirely immune…” This looks a lot less likely if Obama’s OLC and WHC are moving in the same super-presidentialist direction as their predecessors in the Bush Administration.

After all, the members of Obama’s legal team were appalled by the torture memo affair, and came into office determined to do better. If they too are moving down the same path, my institutional account seems a lot more plausible: We should be reforming the current OLC/WHC system so that executive branch lawyers have greater incentives to stand up to the short-term political imperatives of sitting presidents.

This is, at least, the lesson that is suggested by the reemergence of all-too-familiar pathologies in connection with the Libya affair. Recall that John Yoo’s OLC memos did not only gain legal notoriety for their narrow definition of torture, but also for their emphatic views of the president’s power, as commander-in-chief, to ignore Congressional statutes. And once again, we are seeing a president -- presumably on the advice of his OLC/WHC -- ignoring a Congressional statute.

We can’t know for sure what the President's lawyers are telling him: As in the Bush era, the OLC/WHC hasn't deigned to explain to the public why they think the president’s problematic initiatives are legal. The White House has left it to Jay Carney, the press secretary, to announce that the president “believes that he has acted … consistent with the War Powers Resolution … and that's all I'm going to say about it."

Perhaps we will find out what the OLC/WHC is thinking now that the House has passed the Boehner Resolution demanding an explanation for Obama’s breach of the 60-day barrier. But if OLC/WHC didn’t indulge in Yoo-like reasoning, they gave a green light on the slimmest of legal reasons. If this is what we can expect from an Administration headed by a serious constitutional lawyer like Obama, what we expect from the next non-Harvard Law Review president?

Nevertheless, Professor Morrison assures us that the legal excesses of the Bush OLC and WHC should be viewed as an unhappy accident – to repeat his words, the product of a “combination of political, ideological, and psychological factors to which no structure could ever be entirely immune.”

It’s true, of course, that accidents do happen: Libya, Torture Memos, Iron-Contra, Watergate – one accident after another? But perhaps it's time to recognize that these "accidents" are the consequence of pathological institutional arrangements within the executive branch -- and that Morrison is wrong to oppose structural remedies that will reduce the looming risk of further crises of presidential legality in the years ahead.

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