Can President Obama Ignore the Law? Yes, says his AG-designate

by Julian Ku

One other added benefit of the upcoming Obama years (and there are likely to be few)  is the end of the dishonest or at least inaccurate charges about the radical nature of the Bush Administration’s views on executive powers.  The most annoying one that I’ve heard a million times from Keith Olbermann but also from otherwise intelligent and respectable constitutional and international lawyers: President Bush was tantamount to a dictator because he claimed to have the power to “override” or “ignore” federal law pursuant to his Commander in Chief powers.  

As I’ve argued elsewhere, President Bush’s views on the exclusivity of the Commander in Chief power were hardly radical. President Clinton made essentially the same arguments, as did prior presidents.  And the famous Justice Jackson opinion in Youngstown recognized that in certain situations, the President could indeed ignore unconstitutional statutes that infringed on his exclusive constitutional powers.   And President Obama is almost certainly going to follow that same approach, at least if he listens to Eric Holder, his Attorney General Designate (Eric Posner has the details on Holder’s views here).  I look forward to those criticisms of the radical, monarchist executive power views of the Obama Administration.

http://opiniojuris.org/2009/01/21/can-president-obama-ignore-the-law-yes-says-his-ag-designate/

5 Responses

  1. “The most annoying one that I’ve heard a million times from Keith Olbermann but also from otherwise intelligent and respectable constitutional and international lawyers: President Bush was tantamount to a dictator because he claimed to have the power to “override” or “ignore” federal law pursuant to his Commander in Chief powers.”

    Oh baloney — Olbermann wasn’t doing anything but stating a fact:

    “In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”

    John Yoo, THE PRESIDENT’S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ Office of Legal Counsel (2001.09.25).

    http://www.usdoj.gov/olc/warpowers925.htm

  2. Coming soon (within the next year anyway) to a (hopefully prominent) law review near you (not Yoo)….Dehn – The Commander in Chief and the Necessities of War – A Conceptual Framework (copyright claimed already, by me, in 2008, thank you).  This is a lengthy (currently 72-page) paper in which I dismantle Youngstown (as to the CinC power only) and clarify (as much as case law and other legal history allows) the scope of the CinC power, placing commonly misquoted opinions back in context. 

    This article, like me, is apolitical even if motivated by events of the last several years.  I suspect Barron and Lederman’s articles were too (meaning apolitical and motivated by the events of the last several years).

    This rather pathetic attempt at humor aside (except for the copyright stuff – I was serious about that), I hope all will find it enlightening – including Mr. Holder if he is inclined to read it.  I think we would all do well – and I say this in all sincerity and good will – to check our political baggage at the door of the room in which we decide to compose our DOJ opinions, legal scholarship, etc. (and perhaps even our OJ blog posts and responses).  It really detracts from the insightful analysis these things may otherwise provide.

  3. John,

    Political baggage??

    What I quoted from Yoo’s memo of 2001.09.25 is a lot more than political.

  4. Wasn’t this question resolved by the history of the Tenure of Office Act?

  5. Can’t all citizens disobey unconstitutional laws?

    Sure, you will be arrested, but should you prevail in court in proving that the law was unconstitutional, you won’t be convicted of anything.

    The president doesn’t seem any different from citizens in this respect, save he can’t be directly arrested.

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