Balkinization: Can we please stop the nonsense about an alleged "about face" on questions of "unilateral" executive authority?

Can we please stop the nonsense about an alleged "about face" on questions of "unilateral" executive authority?

Marty Lederman

Josh Gerstein's article today is representative of many that you've probably seen lately: "Washington's massive about-face on executive power is underway," he writes. "Donald Trump's election has triggered a whiplash-inducing role reversal in D.C. legal circles, as liberals who spent the past eight years defending President Barack Obama's use of his executive authority prepare to challenge Trump's plans on issues like immigration, the environment and transgender rights, while conservatives who railed against Obama for acting unilaterally on those fronts seem ready to back the new president's moves." Jonathan Turley's quotation in the article is representative of the facile theme that many others are repeating: "I believe President Obama and Democrats made a fundamental error in imposing unilateral decisions through executive power."

This is deeply misleading. In 99% of the cases that everyone is talking about, the Obama Administration did not assert any "unilateral" executive power. Gerstein and those he quotes are, for the most part, simply describing ordinary disputes about statutory authorities. That's what the DAPA litigation was about, for example, and it's what the current debate about transgender access to restrooms is about. It's also what Turley's lawsuit on behalf of the House is about in King v. Burwell--a simple dispute about the scope of an appropriations law. Officials in the Obama Administration did not "take shortcuts" or "set dangerous precedents" about unilateral executive authority in such cases, as Josh Blackman asserts in the Gerstein article: They simply asserted that the relevant statutes conferred certain authorities or prohibited certain conduct. Others disagreed. The courts have upheld most of the Administration's statutory claims, but rejected others. Very, very few of the more controversial actions by the Obama Administration have involved controverted claims of "unilateral" executive authority. (The Paris and Iran deals did involve an assertion of unilateral executive authority to finalize nonbinding international arrangements, and many Republicans opposed those deals on the merits; as I explained in a couple of blog posts here, however, that practice is--rightly or wrongly--now very well-established and bipartisan, and it is noteworthy that Republicans did not challenge the President's constitutional authority to conclude the arrangements. I'm fairly confident that if and when President Trump concludes nonbinding international agreements, those of us who supported Obama's authority to do likewise will not do an "about face" on the constitutional question.)

The vast majority of "converse" litigation in the Trump Administration will, I suspect, be of the same nature as the litigation we've seen in the past few years: Agency officials will assert a statutory authority; others will challenge it as being contrary to the statute, or ultra vires. The courts will resolve some such disputes. Many of us who have supported some of the Obama Administration's measures might oppose some of Trump's measures, not because we've changed our views on "Executive power"--or even on the proper reading of those laws--but simply because we differ with the incoming Administration on the statutory merits.

This is not a new phenomenon, folks--it happens every time the other party takes command of the reins of the administrative state: Invariably, there's a ton of statutory and administrative law litigation, and public debate, concerning the new administration's new applications of statutes. That doesn't involve any "about face" or induce "whiplash." The "role reversal" merely reflects the fact that the two major parties, as well as academics and lawyers, have some fairly significant differences about what various U.S. statutes authorize and prohibit.

Posted 7:22 AM by Marty Lederman [link]