September 26, 2006

"How can law both benefit from, and constrain, a power that is fundamentally lawless?"

Yale Law Journal has a new symposium issue on executive power. (The quote above is from the introduction (PDF). ) I don't have the time right now to scan the articles and say anything more, but feel free to do that in the comments.


litsskad said...

When I at first read the title quote, I thought it was referring to the Supreme Court.

Richard Fagin said...

News flash to Judy: Nixon resigned in 1974. Presenting the example of the mayor of San Francisco handing out self-evidently meaningless marriage licenses alongside that of President Bush's handling of the detainees at Guantanmo suggests the program will have a certain lack of seriousness, or worse, will be a smear job on the President.

There is really no comparison between executive authority vested in mayors and similar executives of political subdivisions of states with that of the President of the United States. The former may or may not even have plenary control over a mere police department, and then are still subject to criminal prosecution by a state-empowered offical.

As long as there is an enforceable mechanism to remove the President from office, his power can hardly said to be "fundamentally lawless."

Is the President's power so large as to hard to consrtain, or is the removal mechanism hard enough to use to provide opportunity for abuse of power? Of course. We also have elections to deal with that.

Jake said...

The symposium has to cover our out of control judiciary.

Political hacks are given lifetime jobs even though never elected by the people and they can make any law they please. The people be damned.

It’s called a Judicial Dictatorship, and we have it now. The courts make laws that the citizens do not want and the politicians would never vote for.
And those decisions by unelected judges have given us disastrous results.

MadisonMan said...

jake, your argument would resonate more with examples. As it is, I see you write disastrous and recall Kerry's op-ed yesterday. Did you mean for me to conflate you with John Kerry?

Bruce Hayden said...

My family often suggests that I see the political where there is none. I suspect that some others who frequent here are in a similar boat.

I read the introduction, which is more than I can say for most law reviews, and I couldn't really decide whether this was an attempt to make a political statement or just being topical. The final mention of Hamdan pushed me towards politics over topical.

While the issue appears to be even handed, the reality, at least to me, is that executive power is only troublesome to the left when exercises by the right. During the Clinton era, it was thought to be just good government. But we are now fighting a War on Terror, requring, IMHO, a strong Executive, and the left is aghast.

Finally, to me, the most dangerous branch is not the Executive, but the Judiciary. The Executive is accountable because it is so political and because the Legislative Branch is so jeleous of its own powers. But I don't see any real check on the Judiciary. They routinely swing elections in a partisan manner, and no one questions that. They override the Legislature and Executive, or, IMHO, worse, the will of the people, without effective constraint or oversight.

Maybe that is good, but I think that a symposium on Judicial power might have been more interesting.

Simon said...
This comment has been removed by a blog administrator.
Murph said...


As a former Mayor I had to laugh at the symposiums’ title and the premise several of the writers used as their foundation – i.e. any power held by one individual is inherently corrupt and “lawless.”

Mayors, Governor’s and Presidents are as accountable to the law as any other individual. The fantasy that any executive is above the law is sheer hyperbole. Clinton and Nixon are just two of a long and tawdry list of wrongdoers have surrendered before the rule of law.

The Founders never intended the legislature to be a full-time operation. Ideally, the Congress would meet for a few weeks every year, fix the budget, pass necessary laws and go home. With the advent of our modern Congress we have oversight around the clock. And, I for one don’t think we’re any better off as a result.

Our Founders also understood one fundamental concept of management – rule by committee is always disastrous. Accountability requires that one person ultimately be held responsible for any and all actions taken by government in the name of the people.

In the cover letter from which you extracted your headline the author expressed misgivings about Iraq and several other issues before the current administration.

“Guantánamo, Iraq, warrantless wiretapping—every day the newspapers prove
that no topic is more in need of a national discussion.”

Sad to see a law school of Yale’s reputation waste time and effort holding meetings on the premise of exploring fundamental issues of executive power - when the real agenda appears to be an open forum to criticize George Bush.

Bruce Hayden said...


As to Judicial power, I should first start with the obligatory reference to the 2000 election, where the Florida Supreme Court, on mostly political lines, ignored explicit state statutes to try to swing the election to Gore, only to have that reversed by a U.S. Supreme Ct. dominated by the Republicans. Then, we had the Torch being replaced in N.J. on the ballot, again in plain violation of state law.

Here in CO, the judiciary imposed a reapportionment in violation of the state constitution (because of deadlock), and then rejected the attempt by the legislature to ultimately come up with its own. Again, the justices voted on purely partisan lines. More recently, we have had the problem of them disenfranchising the people by applying a double standard to legislative versus popularly proposed ballot initiative - going so far as rejecting a single sentence initiative as being two subjects.

Of course, we should mention the imposition of single sex marriage by the judiciary in several places, again jumping into the political fray from their benches on high, and imposing their preferred solution regardless of the two elected branches.

And the danger there is I think obvious from the fallout of Roe v. Wade - since this was a judicial proclimation, we are still fighting it 30 years down the road, whereas a political solution would have most likely been accepted and we would have all gone on to other things.

MadisonMan said...

Bruce, thank you for the clarification.

Bruce Hayden said...

“Guantánamo, Iraq, warrantless wiretapping—every day the newspapers prove
that no topic is more in need of a national discussion.”

Why don't they talk about interning thousands of Americans of Japanese ancestry? Wouldn't that be a much greater civil rights violation than worrying about the precise way in which terrorists caught on the battlefield are handled, or whether some unnamed and unknown Americans might possibly theoretically have their rights violated by being surveiled when talking on the phone to known terrorists?

Of course, the difference between the two situations is obvious. In the former, the administration was Democratic, and in the later, Republican.

Too Many Jims said...

"executive power is only troublesome to the left when exercised by the right." Perhaps true but much the same can be said of the "right". Try this quick word association with a friend on the "right": Janet Reno, Ruby Ridge, Waco, Elian Gonzalez.

Would a member of the "right" take Reno/Clinton at their word that we are only tapping the necessary calls under the NSA program or similar programs?

Bruce Hayden said...

Note another difference between the Judiciary and the Executive. In most of those situations where there have been claims for Executive overreaching by the current Administration in its attempts to fight the WoT, the Legislative Branch has ultimately gotten involved. Last week, there seemed to be an agreement on the limits on treatment of prisoners, notably illegal combatants who had not had any real rights until now. Yesterday, three Republican holdouts in the Senate dropped their opposition to a FISA rewrite by inclusion of several changes to the pending legislation.

In short, an ultimate political solution to Executive action taken for expediency sake.

Contrast this again with Roe v. Wade, et seq. The wound festers for many, three decades later, because the Judiciary has soundly rebuffed any attempts at a political compromise.

So, we have have claims of Executive overreaching with the NSA TSP, and then Legislative action to find something that draws a line that a majority can accept. Then we have abortion, where the Judiciary refuses any input from the political branches or the political process.

Bruce Hayden said...


But would there have been a symposium on Executive power at Yale if the issue had been Janet Reno, et al.?

I am suggesting that the reason that it is considered topical for a law review of this stature is precisely because of the politics of the debate right now.

In other words, my contention is that Executive power is fine with Yale Law School as long as it is used by liberals. It is only when weilded by conservatives that it becomes problematic to them.

Richard Dolan said...

This thread has gotten a bit unhinged, and makes a lot of sweeping judgments almost literally by the time honored method of judging the book by the cover.

I clicked on the thumbnail sketches of several of the essays in the symposium. Cass Sunstein's essay, for example, focuses on Chevron v. NRDC (holding that courts must defer to agency interpretations of law in certain circumstances), which he calls the counter-Marbury for the executive branch. That's an interesting way to think about Chevron, and I've not heard it put quite that way before. Harold Koh's piece is about Hamdan, and the role of checks and balances in today's world. That sounds more like a "standard issue" kind of thing. John Yoo's co-authored piece is concerned with the war powers, and asks which allocation of war powers between the President and Congress would be serve the interests of the US. Yoo is less interested in constitutional text than he is in a "what works best" kind of institutional analysis.

These and the other authors participating in the symposium are mostly familiar public personas, and to varying degrees have taken positions of lots of politically charged issues. Thus it is easy to read into their arguments a political angle. But you could probably say the same about anyone writing on these general issues, and politics in the more partisan sense seems far removed from what's going on here.

The "fundamentally lawless" idea that Ann chose to caption this post is rooted in the unique position of the Executive to carry out policy by acting, often forcefully, to bring about particular outcomes. Neither the Legislature nor the Judiciary can do that. If the law making or law declaring power is added to the Executive's powers, there isn't much left to act as a check on the Executive. The Executive isn't even under the same constraint as the Judiciary to explain publicly and in a reasoned way why the Executive is taken certain actions, or adopting particular views about what the law is or means. As far as I can tell from a quick skim, it's the combination of those factors that the phrase "fundamentally lawless" is intended to capture. But at the same time, as the squib about Sunstein's article shows, the Executive today is involved heavily, and by all accounts appropriately, in both the law making and law declaring functions.

One commenter thinks that it is senseless to compare the Presidency to a Mayor in these terms, just because both qualify as "executives." Perhaps so, but it all turns on the details of the relationship between each "executive" one is talking about, and whatever other institutional checks on its power that the "executive" at issue has to deal with. It's also important to know whether the focus is on de jure checks or includes de facto checks as well. There are plently of the latter in the Federal gov't, as every President (probably every executive, in and out of gov't) discovers. As far as I can see, there is nothing about that inquiry that suggests a "certain lack of seriousness, or worse ... a smear job on the President."

Bruce Hayden suggests that the ultimate check on the Executive's power remains the power to impeach. But that is fundamentally a political, not a legal, check. This symposium is concerned with the latter. Nor is there ever a principled case for impeachment if the Executive is exercising its rightful authority in the law making or law declaring areas. So what is the Executive's proper role in the law making and law declaring areas?

I don't know whether these articles will be particularly enlightening, and I'm not interested enough to get the issue and read the complete articles (at the moment, only a precis is available for each article on the web). But it doesn't sound anything like a political hatch job. Instead, it's a bunch of law professors noodling about some interesting issues, in ways that will probably eventually filter very generally into the larger political arguments of the day. If that's your thing, this symposium is probably not a bad source. Or you can wait and follow along as it all gets ground down and digested at Volokh and places like that.

Zeb Quinn said...

Federal judges have lifetime appointments to insulate them and their decision-making from political vicissitudes. But it was never really considered that the judges themselves would become overtly partisan. It was assumed that judges are able and willing --indeed are professionally compelled-- to rise above their own petty partisanship to do the right judicial thing. It is analgous to a judge in a criminal case overseeing the prosecution of a loathsome and repulsive defendant, judges implicitly have the judicial professionalism to rise above their petty biases to make the proper rulings that endeavor to ensure the accused a fair trial. It is the very same professional objectivity being called for. It was also assumed that the executive branch would appoint, and the senate would confirm, judges who were so imbued with that sort of professionalism. And while that seemed to be truly the case for most of the last 220 years or so, it doesn't seem to be true any more. Since modern-day judges are bound and determined to count partisan poltics amongst their primary concerns, the only remedy is to remove theiir lifetime appointments and replace it with an appointment for a term of years.

Fenrisulven said...

Ann, I'd like to get your legal opinion on signing statements. Some pundits/bloggers insist its akin to an Executive Order, singling out parts of the law that POTUS doesn't intend to follow; others claim its merely a note in the margin of how POTUS interprets that law.

I don't understand that. If POTUS is ignoring a law, why would he telegraph it? If he's not, then isn't it proper to have some record to account for his reasons?

Bruce Hayden said...

Zeb Quinn

I am not sure if it was ever the case that the Judiciary was immune from politics. Indeed, Marbury v. Madison has often been characterized as political.

Nevertheless, it may seem that is more the case today, as the Judiciary seems to take on more power and the politics of the disputes become more apparent.

Bruce Hayden said...

Zeb Quinn

I am not sure if it was ever the case that the Judiciary was immune from politics. Indeed, Marbury v. Madison has often been characterized as political.

Nevertheless, it may seem that is more the case today, as the Judiciary seems to take on more power and the politics of the disputes become more apparent.

Bruce Hayden said...

Richard Dolan

To some extent, yes, the ultimate check on the Executive is impeachment, but the reality is that it is really political. If the Executive really goes too far, both of the other two branches have the wherewithall to bring it to heel.

For example, imagine the present Administration faced with a Congress controlled by a strong majority of the opposition party. You would face continuing hearings on every possible transgression, with laws being passed to override. Indeed, it has been suggested by the WSJ that we can expect some of that, esp. from Rep. Conyers, should the Democrats retake the House this coming election.

Right now, Congress looks weak in comparison to the Executive, but that is, IMHO, primarily because both are controlled by the same party, with most of its members there being in basic agreement with the President.

The problem with the Judiciary is that they have put themselves above this, above political pressure, and have been able to maintain this through lifetime (or close to that) appointments. They can ignore the political will of the country, state, etc. because of this. That would be fine if they truly were above politics, which is what I think was intended. But they aren't - as evidenced by some of the examples I gave earlier. So what we seem to have now are political partisans immune to political pressure operating in many cases for partisan reasons. And thanks to Madison v. Marbury, etc., they have put themselves in an unapproachable position. Their word is the last word, period.

Badger Down Under said...

Harvey Mansfield wrote a book on this a few years ago (Taming the Prince). The "executive power" necessarily involves internal discretion and the ability to act quickly, unlike either the judicial or legislative powers. Not to mention the fact that it's impossible to specify just what, precisely, the executive power is. Combine this with a written constitution, and you'll always have ambiguity as to where the limits are. All effective national executives exist in tension with the rule of law. It's in the DNA.

Money question: does the president have an emergency prerogative power, or not? Use both sides of the paper if necessary.

Revenant said...

As long as there is an enforceable mechanism to remove the President from office, his power can hardly said to be "fundamentally lawless."

I don't think that's an accurate statement. The President's power cannot be said to be "unchecked", "unrestrained", or anything along those lines, because as you noted it does have checks and restraints on it. But inasmuch as it is not limited in what it can do by Congressional law, it IS "lawless".

Revenant said...

Janet Reno, Ruby Ridge, Waco

First of all, Ruby Ridge happened during the first Bush presidency, not under Clinton.

Secondly, if all Janet Reno had done to the Branch Davidians had been to wiretap them without a warrant, I don't think anybody would especially have cared. :)

Finally, most people see a big difference between spying on someone and sending heavily armed goons onto their property.