22 Mar The Most Dangerous Branch? Yale Law’s Symposium on Executive Power
Time for more self promotion…
I will be speaking at a symposium being held this Friday, March 24 at my alma mater the Yale Law School on “The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law”.
The symposium is about more than foreign affairs, but the foreign affairs component alone is pretty impressive (I’m not just saying this because of the well-known figures who will be participating, but because I’ve also seen the papers already). For a short preview of some of the foreign affairs issues we will be discussing this weekend, check out the Yale Law Journal ‘s new online supplement “The Pocket Part”.
Dean Harold Koh of Yale Law weighs in with a lead article criticizing the Bush Administration’s claims of executive power “as a law unto itself”. Rosa Brooks, Sai Prakash, Kimberly Gahan, and I weigh in on a variety of related issues.
As some of you who know our work might guess, however, Sai and I are not exactly sympatico with Dean Koh on all of this stuff. For my own part, I offer a defense of a limited but real “exclusive commander in chief power”. Here’s my opening paragraph:
Which President was advised by his lawyers that he had the constitutional authority to refuse to comply with federal statutes enacted by Congress? Which President also openly violated a federal statute in the exercise of his Commander-in-Chief power? The answer is not George W. Bush, but Bill Clinton. Like every modern President, Clinton defended his inherent and exclusive constitutional powers as Commander in Chief from congressional interference. Yet no legal argument has provoked more outrage today than the Bush Administration’s identical claims pursuant to the same power.
Even if one stipulates that’s an accurate representation of Clinton’s position, so what? Two wrongs don’t make a right. The real issue is whether this interpretation of the Constitution is valid, regardless of which president claims to be above the law.
Incidentally, speaking of changing one’s tune, how about Yoo’s 180 between his response to Clinton’s claim (It’s unconstitutional!) and his response to what you say is Bush’s identical claim (It’s perfectly constitutional.)? And Yoo is not your basic blogger. He’s a lawyer—indeed, a law professor.
Ought to be an interesting conference!
The larger point is that presidents, scholars, and courts have all recognized that there is some exclusive commander in chief power that cannot be limited by congressional statute. Two wrongs don’t make a right, but the weight of judicial and scholarly opinion (and not just Professor Yoo’s opinion) support the existence of an exclusive commander in chief power.
If the exclusive commander in chief power exists (as my article argues), then Presidents are not claiming to be “above the law” when they refuse to obey statutes that violate their commander in chief power. If those statutes are unconstitutional, then the President’s refusal to obey them would be like the President’s refusal to obey other unconstitutional statutes e.g. statutes requiring him to impose racial segregation, for instance, that clearly violate the Equal Protection clause.