Archive for the ‘Executive Branch Power’ Category

Weekly Web Watch (4/19-4/26)

April 26, 2009

Foreign Policy asks experts to grade President Obama’s first 100 days, while the New York Times gets the take of prominent historians.

The released torture memos continued to fuel heated debate. Slate’s John Dickerson has a torture commentary roundup and Foreign Policy has a torture timeline.

Executive Watch’s Christopher Schroeder highlights the most salient features of the memos, while Peter Shane says, as a former OLC official, they make him want to vomit. Former President Bush speechwriter Marc Thiessen marshals evidence from the memos themselves to argue that the interrogation techniques foiled terrorist plots and yielded invaluable information on Al-Qaeda. Slate’s Timothy Noah points out, though, that the narrative of Bush apologists is riddled with internal contradictions. Former FBI interrogator Ali Soufan speaks out to say that high-profile suspect Abu Zubaydah provided useful, reliable information only before being waterboarded. Torture opponent Greg Sargent fears that focusing on whether torture yields useful information shifts the terms of the debate away from the significant moral and strategic consequences. The New Republic’s Michael Crowley, however, says opponents should welcome the discussion since it will either repudiate the sole justification for torture or show it works in limited circumstances and is not worth the accompanying costs. After sending mixed signals, Obama spokesman Robert Gibbs says that an independent torture commission is not necessary and that the current inquiry by the Senate Intelligence Committee is proper and sufficient.

Weekly Web Watch (5/12-5/19)

April 19, 2009

The Department of Justice released four Bush-era memos (with minimal redactions) providing a legal framework for justifying torture. The release came in response to a Freedom of Information Act (FOIA) request by the ACLU. The move earned the praise of rights groups and activists, including one of President Obama’s most frequent critics, Salon’s Glenn Greenwald, who calls it courageous. The New York Times says reading the memos is like taking a journey into depravity. The Atlantic Monthly’s Andrew Sullivan avoids getting bogged down in the details of the memos and stresses that a 2005 memo is especially chilling since it was written well after September 11. The New York Times reports, based on the memos, that waterboarding was used 266 times on 2 suspects. With one of the suspects, Abu Zubaydah, intelligence officers had better success with less severe treatment. Nevertheless, former CIA Director Michael Hayden and former Attorney General Michael Mukasey take to the pages of the Wall Street Journal to explain why releasing the memos strengthens Al-Qaeda’s ability to combat the methods of American intelligence agencies and, ultimately, leave Americans less safe.  The Weekly Standard’s Bill Kristol takes a similar line.

Obama and Attorney General Eric Holder maintained throughout the week that CIA officials who relied in good faith on the legal memos would not face prosecution.  The Center for American Progress’s Matthew Yglesias is okay with this position, declaring that accountability for torture is less important than building political consensus. Slate’s Dahlia Lithwick, Empire Burlesque’s Chris Floyd, and Bruce Fein make the case for prosecution and argue that the eagerness to forget past crimes leaves the groundwork for them to reemerge in the future.  ThinkProgress reports on the U.N. Special Rapporteur on Torture’s statement that Obama’s grant of immunity violates international law. Balkinization’s Brian Tamaha writes that those who wish to shield the OLC lawyers from prosecution because they merely dispensed good faith legal analysis saw their case “completely fall to pieces” given the shoddy reasoning in the torture memos. Opinio Juris’s Kevin John Heller also notes that the CIA’s practice of waterboarding exceeded the limits prescribed by the memos, meaning that pertinent CIA officials should not escape liability on a good faith reliance defense either. Echoing Glenn Greenwald, Obsidian Wings’ Publius spotlights the work done by the ACLU to gain release of the memos and says it’s time to become a card-carrying member.

In a much-anticipated decision, the Obama Administration’s Environmental Protection Agency found that carbon dioxide and five other industrial emissions endanger “the health and welfare of current and future generations.” Volokh Conspiracy’s Jonathan Adler explains why the decision could spur broad environmental reforms, such as a cap-and-trade system.  In a letter to lawmakers, free market advocates and industry representatives express their belief that the endangerment finding “will set the stage for an economic train wreck and a constitutional crisis.”

The seemingly never-ending debate surrounding the nominations of Dawn Johnsen and Harold Koh to top administration posts spilled over into this week. In the Wall Street Journal, Walter Dellinger calls on Republican Senators to let their nominations come to a vote and not filibuster. Echoing the Blog of Legal Times Douglas Kmiec, Jonathan Adler explains why Dawn Johnsen’s liberal ideology should not prompt Republican lawmakers to obstruct her nomination. Powerline’s Paul Mirengoff makes the case against confirming Dawn Johnsen. Executive Watch’s Neil Kinkopf issues a point-by-point rebuttal.

Newsweek’s Stuart Taylor and Evan Thomas preview the issues likely to define the debate on the Senate floor concerning Koh’s nomination. The National Review’s Ed Whelan characterizes Koh’s legal philosophy favoring transnational law as a bait and switch on the American people. Curtis Bradley and Jack Goldsmith reference Koh’s deference to international law in their Washington Post guest column criticizing a Southern District of New York’s refusal to grant a motion to dismiss in a lawsuit brought by the victims of apartheid against companies who did business with the South African apartheid regime. Opinio Juris’s Kevin Jon Heller calls the column “utterly perverse.”

The Department of Homeland Security issued a report warning local law enforcement that the confluence of several factors such as the election of a black president and an economic downturn could fuel a resurgence of violent right-wing extremism. The National Review’s Andy McCarthy calls the report “appalling” and a “nakedly political document.” Glenn Greenwald says that after the Bush years, conservatives are getting what they deserve when it comes to government surveillance. On the general topic of surveillance, ThinkProgress’s Matt Corley points out that the FISA compromise of last summer has paved the way for wide-scale abuses by the NSA.

Foreign Policy’s David Rothkopf calls attention to the number of czars the Obama administration has appointed in three months, noting that it now exceeds the 18 czars who ruled Russia over 300 years during the Romanov Dynasty.  Volokh Conspiracy’s Ilya Somin says that the proliferation of czars “makes an already excessively large and complex government even more difficult … to monitor.”

Getting the Guy’s Attention

April 13, 2009

Still well inside his first 100 days, and with promised reconsiderations of how White House power is to be structured and used still understandably outstanding (if delivered on the short schedule promised, we should see them in a month or two), President Obama is regularly being accused from the Right of simply continuing his predecessor’s monarchist/czarist pretensions. The John Yoo’s among them should be celebrating the continuation of attitudes they so enthusiastically supported; but one must acknowledge that there were conservative as well as liberal critics of George Bush’s democracy-dangerous claims. The problem is that government like an oil tanker takes a good while to change course. For any given event the connection between the man at the helm and the rudder may be rather remote.

Bruce Fein’s recent Slate article, treats government lawyers’ arguments in two cases arguably involving American war crimes as if they had been personally made and submitted by the President himself. As one who was twice a government lawyer in a chain of command over litigation positions, I can testify that it does not happen that way. Communication up and down is slow and imperfect, habits die hard, and White House involvement is rarely if ever entailed. Treating the top guy as personally choosing everything that may happen is politically useful (Harry Truman’s “the buck stops here”) but it is also hazardous. Since like news content choices, what it teaches is that the negative overwhelms the positive, what it teaches is that tight control from the center is essential. Holding President Obama personally accountable for every government legal position that may be taken is a way of asserting that White House politics must control the details of all litigation. This is the road toward, not away from, a czarist regime.

The flack may serve to get the guy’s attention. But then it may also serve to further extend the tendrils of the White House in ways we should regret. Mr. Obama did not write, or personally endorse, those arguments, and Mr. Fein knows better than to write as if he did.

Weekly Web Watch (4/5-4/12)

April 12, 2009

Mark Danner releases part two of his piece on the Red Cross Torture Report, chronicling the genealogy of torture policies and the grisly details of their implementation. Propublica says that the complicity of medical professionals in torture is particularly troubling and warrants further inquiry.

Writing for Slate, Bruce Fein calls President Obama a czar and accuses him of wielding executive power like an imperialist. The renewed disgruntlement with Obama stems largely from the Department of Justice’s decision to invoke the state secrets privilege, again - this time in asking for the dismissal of a suit charging the NSA with illegal surveillance of millions of Americans’ phone calls and emails. ABCNews’ Jake Tapper charts the president’s evolution on the issue in the aptly titled “On State Secrets, Meet Barack W. Obama.” The Washington Post’s Dan Froomkin says invoking the privilege here is “utterly un-American.” Harper’s Scott Horton points out the equally tenuous claim to sovereign immunity asserted by the administration in the case, which Volokh Conspiracy’s Orin Kerr also calls a “terrible argument.”

Many on the Left initially applauded CIA Director Leon Panetta’s announcement that the agency would be decommissioning its infamous overseas black sites and that contractors would no longer be authorized to conduct interrogations. Scott Horton, among others, is taking issue with Panetta’s promise not to investigate or prosecute those involved in torture and other suspect activities under the Bush Administration.  The Daily Beast’s John Sifton smells a cover up. CQ Politics personalizes the issues at stake by telling the story of CIA interrogator Mark Swanner, who has gone off the books after Iraqi Manadel al-Jamadi died in his custody.

Slate’s Julian Davis Mortenson breaks down the implications of the Spanish investigation into allegations of torture at Guantanamo Bay. Foreign Policy’s Tom Ricks says that even if the architects (such as Dick Cheney) and perpetrators of torture are not prosecuted, they will still be “waterboarded by history.”

The D.C. Circuit Court refused to find Secretary of Defense Robert Gates in contempt for refusing to release 17 Chinese Uighur detainees at Guantanamo Bay following a court ruling absolving them of any ties to terrorism. The Weekly Standard’s Thomas Joscelyn suggests that more detainees are likely to find themselves in legal limbo since various European countries are unwilling to accept them in their borders.

The DOJ filed an appeal in federal district court to delay execution of last week’s ruling extending some constitutional rights to detainees held at Bagram Air Force Base in Afghanistan. Salon’s Glenn Greenwald says it’s further evidence that Bagram is Obama’s Guantanamo.

Harold Koh, the Obama Administration’s choice to become chief legal counsel at the State Department, continued to fuel heated exchanges in the blogosphere this week. Opinio Juris’ Julian Ku has ten questions he wants Koh to answer.  In perhaps the most substantive dialogue, the National Review’s Ed Whelan points to a Harvard Law Review article by Curtis Bradley and Jack Goldsmith (”Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (1997)) to criticize the soundness of Koh’s transnationalist legal philosophy. Publius of Obsidian Wings responds that Whelan mischaracterizes Koh’s philosophy and also notes that the Bradley/Goldsmith article “was not handed down from Sinai” and remains the subject of scholarly debate. Meanwhile, Volokh Conspiracy’s Eric Posner says that the Koh controversy is much ado about nothing and asserts that Koh merely sees international law as a vehicle for pushing the judiciary to the Left and will be pragmatic when faced with countervailing concerns.

Writing for Executive Watch, John McGinnis makes the case that Eric Holder politicized the DOJ by overruling an OLC opinion. Executive Watch’s Neil Kinkopf disagrees. Balkinization’s Mark Tushnet and Volokh Conspiracy’s Jonathan Adler engage in a parallel debate.

Executive Watch’s Peter Shane lays out four ways that Obama’s use of signing statements is already troubling.

Writing last Friday, the National Review’s Andrew McCarthy questions whether Obama has what it takes to take on Somalia’s pirates and their testing of the rule of law. On Sunday, Obama authorized the military to use the force necessary to rescue a U.S. captain in pirate captivity, paving the way for a successful rescue and earning the fanfare of the mainstream media.

Eric Holder and the Rule of Law

April 9, 2009

Last week, the Washington Post reported that Attorney General Eric Holder rejected the advice of the Office of Legal Counsel on the bill to grant D.C. a member of the House of Representatives.  (OLC reportedly advised Holder that the proposal would be unconstitutional.)  Ever since, the blogosphere has been abuzz with charges of impropriety.  John McGinnis’s post on this site is a leading example.  McGinnis writes “less than two months after his confirmation the Attorney General has shown that he is not interested in the rule of law when it conflicts with his own political preferences.”  Ed Whelan has made similar claims at NRO and in last Sunday’s Washington Post.  The charge that Eric Holder has subordinated the Justice Department’s legal interpretations to his own political preferences is a serious one.  In fact, if the charge is true, Eric Holder should resign and, if he refuses to do so, President Obama should fire him.

But are the charges true?  Not based on anything in the Washington Post story.  (more…)

Keeping Signing Statements Rare

April 7, 2009

With the Obama Administration in Month Three, discerning the new President’s views of executive power is still largely a matter of reading tea leaves. A few of the more intriguing leaves have, of course, been the President’s memorandum on signing statements and, in short order, his own first two signing statements, here and here.

I entirely agree with Neil Kinkopf that there is no real kinship between the theories of executive power expressed in President Obama’s first two signing statements and the extreme claims to executive authority made hundreds and hundreds of times by George W. Bush. But, with all respect for my beloved co-chronicler of signing statements, I think it is OK to be concerned already that the Obama Administration is not yet “getting it” on this subject.


Weekly Web Watch (3/29-4/5)

April 5, 2009

The Department of Justice requested another delay in releasing three opinions from the Bush Administration’s Office of Legal Counsel providing the legal justification for torture. Newsweek reports that the Obama administration is divided on releasing the memos. A New York Times editorial calls on President Obama to heed his own pledge of transparency and release them. Mother Jones’ Kevin Drum says that it is for the better if the release embarrasses allies who assisted in torture and makes them less willing to do it next time. Harper’s Scott Horton suggests that if John Brennan, the prime advocate of keeping the tortures secret, gets his way it means that Dick Cheney is still exercising influence on current policy.

A federal district court judge ruled that some prisoners detained at Bagram Air Force Base in Afghanistan are entitled to challenge their imprisonment.  Volokh Conspiracy’s Orin Kerr thinks the opinion is a “careful and thorough application of Boumediene,” but that the Supreme Court may still see things differently. The editors of the National Review view the ruling as an imperial judiciary going global, while the ACLU sees it as “another rebuke to the government’s claim that is free to establish law-free zones.”

The Blog of Legal Times reports on further delay of the confirmation vote for Dawn Johnsen, President Obama’s nominee to run OLC. Executive Watch’s Neil Kinkopf rebuts the dominant criticisms of the nominee and calls on the Senate to “free Dawn Johnsen.” Writing for Balkinization, Andrew Koppelman is appalled at the misappropriation of his statements about Johnsen by prominent Republican legislators and conservative commentators and says their criticisms amount to libel.  ThinkProgress lists other Obama nominees currently being held up for confirmation.

A DOJ task force has cleared another detainee, Ayman Saeed Batarfi, for release from Guantanamo Bay. The Weekly Standard’s Thomas Joscelyn ties Batarfi to al-Qaeda and lists the reasons why he is worried about his release.  In other Gitmo-related commentary, five authorities on national security law and civil liberties debate the lessons to be drawn from the case of 17 Chinese Muslim Uighurs, who are no longer considered enemy combatants, but remain in legal limbo. The Blog of Legal Times reports on an alliance of detainees’ lawyers challenging the legality of Obama’s Guantanamo guidelines.  The ACLU’s Will Matthews writes in Daily Kos about the “callousness” of U.S. government officials toward immigrant detainees, perhaps a reason prompting the Nation’s Jeanne Theoharis to call for the eradication of a Guantanamo mindset, not just the closing of a base.

Democrats on the Senate Judiciary Committee swiftly moved forward with a hearing for Obama’s first circuit court nominee, prompting a Republican boycott because of inadequate time to prepare. The National Review’s Ed Whelan says that the Democrats’ maneuver reveals a fear that a full review of the nominee, David Hamilton, will show that he is far from a moderate.  Volokh Conspiracy’s Jonathan Adler is skeptical that Republicans could uncover anything meaningful with more time and says that Congress should generally assume a deferential posture toward a president’s nominees. Two more appellate court nominees are on the way. Just as the Obama Administration reasserted the American Bar Association’s role in the nomination process, some are accusing it of left-wing bias, including the social scientist authors of this paper.

Slate’s Dahlia Lithwick documents an alleged right-wing smear campaign against Harold Koh, the nominee to become the chief counsel at the State Department. National Review’s Ed Whelan issues a rebuttal. The Politico highlights the surprising decision of President Bush’s solicitor general, Ted Olson, to come out in support of Koh. National Review’s Andy McCarthy issues a rejoinder. Writing for Balkinization, Kenji Yoshino  makes perhaps the most comprehensive case for Koh.

The New York Daily News pans the Obama Administration’s decision to abandon the phrase “Global War on Terror.” Matthew Yglesias, though, says that the change will make it easier to base national security decisions on sound policy and not just good politics.  Nevertheless, the change in rhetoric prompts the New York Times’ Peter Baker and  the Weekly Standard’s Michael Goldfarb to ask more broadly whether Obama’s foreign policy is different only in word from Bush’s.

Reflecting on the National Court of Spain’s decision to review a complaint implicating several Bush-era lawyers allegedly involved in crafting the administration’s legal justification for torture, Stephen Brainridge sets forth the troubling consequences of permitting claims hinging on “universal jurisdiction.” Scott Horton says that the Spanish action is better than nothing, though a full-fledged domestic investigation and prosecution would be optimal. Earlier in the week it appeared that Senator Patrick Leahy (D-VT) was backing away from his previous idea of instituting a Truth Commission, but later clarified that the Commission is not dead, just resting.

Ed Whelan takes to the pages of the Washington Post to argue that Attorney General Eric Holder has politicized the Department of Justice by overriding the OLC after it determined that the Voting Rights Bill - which would grant the District of Columbia a voting member in the House - is unconstitutional. Volokh Conspiracy has a slew of posts analyzing the matter and its implications.  Already Holder appears to be falling short of Scott Horton’s five steps to fix the DOJ, though, Horton points out, Holder’s repudiation of former Senator Ted Stevens’ (R-AK) corruption conviction represents a step in the right direction.

Writing in the wake of Treasury Secretary’s plan to restore strength to the financial sector, Simon Johnson writes in the Atlantic Monthly that the finance industry has captured the American government and needs to be separated for enduring reform to happen. Paul Krugman, Glenn Greenwald, and Joseph Stiglitz concur. The New Republic’s Noam Scheiber, however, thinks that Johnson overstates his case and believes that the Geithner-Obama plan is an okay deal for taxpayers.  In other financial commentary, Time has an important piece on the influence of behavioral economists (who are increasingly trendy in legal literature these days) on the Obama Administration.

Weekly Web Watch (3/22-3/29)

March 29, 2009

Executive Watch’s Christopher Schroeder describes President Obama’s 80 percent problem, rebuffing efforts, by the Left and Right alike, to pin Obama as simply another President Bush. Nevertheless, Curt Bradley and Eric Posner maintain that changes have been more symbolic than substantive. Neil Kinkopf makes the case that it’s still too early to define, let alone judge, Obama’s theory of executive power.

Assuming their respective ideological stripes, Matthew Yglesias and Scott Horton write approvingly of the Obama Administration’s disavowal of the phrase “War on Terror,” while Michael Goldfarb and Andy McCarthy think it marks the end of taking terrorism seriously.

A Washington Post front-page article documents the torture of Abu Zubaida, the series of false leads it provoked, and evidence that it failed to foil any terrorist plots. Harper’s Scott Horton says the article is further proof that torture serves as a recruitment tool for al-Qaeda and has no offsetting benefits for the U.S. National Review’s Marc Thiessen vehemently disagrees and says that the Post article is rife with errors and misinformation. Richard Painter, as a guest contributor at Volokh Conspiracy, has a series of posts asserting that torture is a misguided policy. The Bush State Department’s chief counsel on Guantanomo litigation, Vijay Padmanabhan, joins an emerging chorus of voices from the Bush Administration now speaking out against torture.

Juris notes that in an interview with CBS’ 60 Minutes, Obama affirmed his commitment to international law and due process rights when confronting former Vice President Dick Cheney’s remarks that closing Guantanamo Bay makes Americans less safe. The Weekly Standard takes issue with Obama’s reply, asserting that he continues to hide a Pentagon report documenting the high recidivism rates of former Guantanamo prisoners. Thomas Joscelyn of the Weekly Standard also criticizes Director of National Intelligence Dennis Blair’s statement that some being held at Guantanamo may be released in the U.S. and receive government assistance. Glenn Sulmasy examines the broader difficulties that come with closing Guantanamo. The story of 17 Chinese Uighurs is perhaps exhibit A. They are seeking to hold Secretary of Defense Robert Gates in contempt of court for refusing to transfer or release them pursuant to a D.C. Circuit order.  A Uighur who was released in 2006 writes to President Obama, pleading for the release of those still being held.

The Guardian describes Spanish Judge Baltazar Garzon’s decision to have prosecutors examine the Bush Administration lawyers’ role in developing a torture policy for those held at Guantanamo Bay. Andrew Sullivan sees the move as the wheels of justice turning, while Matthew Yglesias views at as an important symbolic victory.  Scott Horton says there is an accountability imperative. The ACLU spotlights the piercing remarks of Jonathan Turley on the Bush Administration’s alleged war crimes and calls for Attorney General Eric Holder to hire an independent prosecutor.  Balkinization’s Sandy Levinson senses hypocrisy in the calls for the prosecution of those like John Yoo.

Jurist has the details on President Obama’s nomination of Yale Law School dean Harold Koh to be chief legal counsel at State. Koh has come out as a fierce opponent of torture and, in 2002, declared that a unilateral, preemptive war with Iraq would violate international law. Concurring Opinions is happy to see the influence of the legal academy on the Obama Administration. The Weekly Standard worries that Koh and Obama’s emerging legal team will hog-tie the president in war-time. The National Review raises concerns about Koh’s apparent affinity for transnational legal processes, echoing the sentiments of former ambassador to the United Nations John Bolton, who feels that American sovereignty is under siege.

The New York Times chides Republican senators for delaying the confirmation of Dawn Johnsen to head the White House’s Office of Legal Counsel. Writing for Politico, Walter Dellinger makes the case for Johnsen. National Review’s Andy McCarthy sticks to his opposition, chronicling Johnsen’s alleged radical views on abortion and other issues. Weeks back, Executive Watch’s Christopher Schroeder issued a stinging critique of McCarthy’s position. While Johnsen has been held up, assistant Attorney General nominee David Kris moved forward, as did three other nominees for top DOJ posts.

Speaking of nominations, CQ Politics notes that Obama currently outpaces Bush in making nominations to the Senate and having them confirmed. Executive Watch’s Peter Strauss highlights the important role Congress has played historically in the confirmation process.

A rare ideological alliance emerged in opposition to Treasury Secretary Tim Geithner’s proposal to seize non-bank financial institutions that present systemic risks. Left-leaning economists like Joseph Stiglitz and Paul Krugman joined House Republicans in opposing the measure and calling for receivership. NYU Economist Nouriel Roubini, however, thinks the Geithner plan has promise. The New Republic’s Jason Zengerle looks to a 1999 New York Times article on banking reform to credit the public figures who predicted the current crisis. Propublica probes what the Fed knew about AIG before forking over $85 billion last September. Glenn Greenwald bemoans the persistent intermingling of corporate power and government reform. Richard Epstein takes a decidedly different view and argues that the recent bonus tax on AIG is unconstitutional.

Congress’ Contribution

March 26, 2009

Surely one of the factors arming fears that, promises or not, President Obama is continuing in the central-power-hungry ways of his predecessor(s) is the rate at which he is creating White House positions that appear to duplicate, or at least compete with, responsibilities Congress has assigned to departments or agencies, but which enjoy a stronger shield of executive privilege and perhaps do not even require Senate approval for their personnel. Paul Light, writing in the New York Times on Monday, March 23, opened an OpEd, “Nominate and Wait,” with this:

ROBERT C. BYRD, the Democratic senator from West Virginia, chastised the Obama administration last month for using White House policy czars to undermine the president’s own cabinet. “At the worst,” he wrote to President Obama, “White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials.”

Light then went on to tie the development to congressional failures of responsibility in relation to executive appointments – both in lagging in the confirmation process, and in tolerating (viz., through appropriations) presidential and departmental creation of at will political appointees not requiring Senate confirmation.

One hardly knows where to start here. The very first Senate refusal to confirm a presidential nominee to a cabinet position, Andrew Jackson’s nomination of Roger Taney to serve as Secretary of the Treasury, came as punishment for what appeared to be the President’s insistence on controlling the execution of a duty Congress had assigned elsewhere. A statute gave the Secretary of the Treasury “discretion” to remove government funds from the U.S. Bank and put them elsewhere. Jackson’s vehement opposition to the Bank made him eager to have this happen, and his re-election in 1832, with the Bank’s future as a major issue in the campaign, appeared to pave the way. The Secretary of Treasury then serving found no adequate reason to exercise that congressionally conferred discretion, and Jackson replaced him. His confirmed successor as Secretary, William Duane, came to the same conclusion and was also sacked. Jackson named Taney Acting Secretary and, as Robert Bork would about a century and a half later, Taney did what he was told. His nomination was rejected.

In one of the sillier communications of the later Bush years, responding to a House bill that would have denied funding for enforcing the new powers given “regulatory policy officers” by President Bush’s EO 13422, White House spokesmen told Congress with a straight face that it would be acting unconstitutionally if it refused adequate funding for White House offices, as an interference with the President’s inherent executive authority.


Executive Power and the 80% Problem

March 24, 2009

People are intensely interested in figuring out how President Obama’s view of his presidential authority differs from President George W Bush’s, and rightly so.  Some of the legal underpinnings for many of the Bush administration’s most controversial policies - the initial creation of military commissions, the resistance to providing judicial review for detainees held at Guantanamo, the use of aggressive interrogation techniques, the NSA’s warrantless surveillance program - relied on a theory of presidential authority that many thought arrogated too much unilateral power to the presidency.  And of course candidate Obama campaigned against these programs and the legal theory of the presidency that supported them.  A much-noted Q&A with Charlie Savage in the Boston Globe back in December, 2007 summarizes candidate Obama’s views.

Two months into his term, President Obama has taken steps to revise or reverse all of these policies.   He has announced the cessation of military commission trials.  He has announced the closing of Guantanamo, after a planning and evaluation process to determine which cases can be transferred to the federal courts or to military courts martial.  He has announced that the Army Field Manual defines the permissible interrogation techniques for American personnel.  And we believe, but do not know, that warrantless surveillance of Americans within the United States is no longer occurring, subsequent to Congress amending the FISA statute to authorize a program that meets national security requirements while subjecting the procedures for that program to judicial review by the FISA court.   Led by Vice President Cheney, conservative critics claim that these policy changes are making the country weaker and less secure.

Despite these noticeable and notable changes, somewhat remarkable narrative is gathering momentum:  On issues of presidential power, Obama is not much different from Bush.  Making the narrative even more interesting, it is coming from the left and the right.  (more…)