Executive Power Debate, Redux

by Deborah Pearlstein

Charlie Savage’s odd article in yesterday’s New York Times prompted another exchange in the ongoing conversation about whether the Obama Administration’s assertions of executive power can be meaningfully distinguished from those of George W. Bush. Savage’s article is headlined in such a way, and otherwise seems to suggest that Obama’s recent reliance on executive orders to accomplish various policy changes (in, for example environmental regulation) is analogous to the Bush Administration’s claims that it could exercise executive power to change various policies and laws in the counterterrorism realm. (Savage writes, for example: “As a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress…. But increasingly in recent months, the administration has been seeking ways to act without Congress.”)

Marty Lederman does his usual lovely job at Balkinization of explaining why the equation of these practices as similar in their views of executive power is wrong. Critically, for example, the most troubling assertions of executive power in the Bush Administration – for example, the power to torture despite federal laws prohibiting it – were truly claims of unilateral authority. That is, the claim that the President could order torture even when Congress has said it’s illegal. The Savage article, in contrast, is almost entirely focused on Obama’s use of executive orders to carry into effect powers that Congress has delegated to the President to use. That is, essentially the opposite behavior.

Jack Goldsmith nonetheless views the Savage piece as fodder for his book’s claim that executive power invariably expands over time, and that while Obama maybe held back in his first few years in office, even Obama is now seeing the light, as it were. As I’ve written in some detail elsewhere, there are a set of ways in which the Obama Administration has recognized constraints on its power that the previous administration did not. Some examples. The Obama Administration’s early executive order on interrogation, still in effect, recognizes the binding applicability of Common Article 3; the Administration has argued that international law should inform the interpretation of its detention power (a view to which the D.C. Circuit has, remarkably, not deferred); the Administration won an amendment to the Military Commissions Act (MCA of 2009) entitling detainee-defendants to raise Geneva Convention-related defenses in the course of their trials (a set of claims the MCA of 2006 had barred); the State Department has announced an intent to seek to ratify Geneva Additional Protocol I. Perhaps most significant, though, the Congress has sought to impose remarkable constraints on the President – I’m not aware of any historical precedent – including the prohibition on transferring Gitmo detainees to the United States for prosecution. And the President has, in fact, complied with them.

None of this is to suggest I’m a fan of everything the administration has done in this realm, or even that it’s clear exactly what the President thinks is the scope of his power under Article II. (Here, for example, I raised questions about the scope of Article II power the Obama Administration is asserting in its targeted killing programs.) Rather, it’s to suggest that Jack’s descriptive claim that executive power simply and inevitably expands over time I think ignores the various ways in which that has not been true. If I were trying to describe what’s happened in the past four years, I’d say, more modestly, that sometimes, some executive powers expand, and sometimes, some others do not. Where does this get us? Well, at least to the point of asking a better question. Like why does power sometimes expand, and why, more interestingly, does it sometimes not?


5 Responses

  1. [T]he Administration has argued that international law should inform the interpretation of its detention power.

    What, exactly, do you think this means?  That detention power is limited by international law?  Or simply that the better policy position is to detain in a manner consistent with international law?  I can never get a straight answer on that question, and there is obviously a profound difference between the two interpretations.  To me, “informs” seems like a weasel word that allows the Obama administration to claim that it is detaining in a manner consistent with international law (which I think is descriptively untrue) while maintaining its flexibility to act inconsistently with international law should it decide that doing so is necessary.  I’d appreciate your perspective.

  2. I am coming to think that Goldsmith’s argument is a thinly veiled effort similar to what I saw at ASIL a couple of years ago to relentlessly argue there is continuity. 

    When some of us pointed out there were two fundamental differences between the administrations (1) Obama did not lie us into a war  and 2) Obama did not torture) people were not pleased to have the ambient bonhomie disturbed.

    Where there is continuity is in not prosecuting high-level civilians for the torture or holding them accountable for lying us into the War in Iraq.  That continuity between the two administrations is one of the most bizarre things about our constitutional structure – a fundamental incapacity to come to terms with high level criminality ostensibly done in the name of national  security.

    As more data comes out that demonstrate what has been obvious to many since 2004 (http://www.slate.com/articles/news_and_politics/politics/2012/04/george_w_bush_and_torture_america_s_highest_officials_are_responsible_for_the_enhanced_interrogation_of_prisoners_.html), the acquiescence of the body politic is striking.  The passivity of elites is also quite striking – even as it seems to be well ingrained.


  3. Response…
    Yes, Ben, and the Obama Administration does not seem to have a professor within DOJ who has written a memo in order to facilitate the unlawful transfer of detainees from occupied territory (a war crime and grave breach of Geneva law) to other countries for foreseeably unlawful interrogation and ill-treatment more generally (a war crime, etc.) — Goldsmith is reasonably accused of complicity in that regard.   Could he be trying to claim, like Yoo and Cheney et al., that such conduct is permissible if the President decides to violate international law? that Obama will end up doing the same? that we should all ignore what has happended?

  4. Hi Deborah – Thanks for your thoughtful post. In the spirit of engagement, I’d respond in a couple ways.
    First, as a preliminary matter, I think you may have inadvertently sent your readers to the wrong Lawfare post. This is the one in which Jack engages with Marty:
    Beyond that, though, I wonder if you are perhaps artificially attaching your own interest in waging the “continuity” debate to this article, resulting in an “odd” blog post. Specifically, I don’t see how you can assert that my article “seems to suggest” that Obama’s recent unilateral moves in the domestic policy arena are “analogous to the Bush Administration’s claims that it could exercise executive power to change various policies and laws in the counterterrorism realm” when the article is not about national security issues at all and explicitly stresses the opposite point viz Bush: “But for the most part, Mr. Obama’s increased unilateralism in domestic policy has relied on a different form of executive power than the sort that had led to heated debates during his predecessor’s administration: Mr. Bush’s frequent assertion of a right to override statutes on matters like surveillance and torture. “Obama’s not saying he has the right to defy a Congressional statute,” said Richard H. Pildes, a New York University law professor. “But if the legislative path is blocked and he otherwise has the legal authority to issue an executive order on an issue, they are clearly much more willing to do that now than two years ago.”
    The article does say Obama’s recent stepped up aggression in unilateral domestic policymaking is a regression to the mean established by all his recent predecessors since Reagan, including Bush43, but Bush43’s record in that respect doesn’t have anything to do with the counterterrorism policy debates.
    So I think your critique misses the mark.
    — Charlie

  5. Kevin – Thanks for your good question. My sense has always been that the administration used the “inform” language in its key brief on the topic for two reasons.  First, because it was trying to adhere as closely as possible to the language the Supreme Court used on this point in its 2004 plurality opinion in Hamdi. There, O’Connor wrote: “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date.” The court in 2004 was focused on what still looked very much like (or a lot more like) a traditional international armed conflict in Afghanistan w/in the meaning of IHL.  By 2009, it was very difficult to argue that the armed conflict in Afghanistan was international in nature as that term is used in IHL.  Second, I think they use the word “inform” in the AUMF context because they view the relevant armed conflict as non-international in nature, and they are right that the international law of non-international armed conflict doesn’t actually contain a lot of guidance on, say, who can be detained in NIAC. The law of international armed conflict (IAC) contains a lot more guidance in various ways.  But it’s not directly applicable.  It can therefore “inform” the interpretation of the statute, but only by analogy. To the extent the IHL of NIAC does have provisions that apply directly – as in, for example, Common Article 3 – I believe the administration thinks itself legally bound by it, and I believe their other statements (executive orders, etc.) are pretty clear in this view. In any case, I still think the best statement of the administration’s views on the relevance of international law to the interpretation of the federal AUMF statute is in its March 13, 2009 brief, available, e.g., here: http://www.justice.gov/opa/documents/memo-re-det-auth.pdf.  I’d be interested if you think that helps.

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