The Executive Watch blog is on indefinite hiatus until Christopher Schroeder, assistant attorney general for the Office of Legal Policy, returns to Duke Law School.
Actually, we’ll be going back a little further than Dec. 21 to make up for lost time.
A man attempted to bring down an airliner traveling from Amsterdam to Detroit by setting off explosives attached to his legs. He was unsuccessful and had to be arraigned in the hospital where he is being treated for burns. ABC News reports that the attack was fairly sophisticated and organized by al-Qaeda affiliates in Yemen. The Transportation Security Agency issued a new set of guidelines for passengers on international flights (no policies have changed for domestic flights, though existing precautions may be enforced more rigorously), which Professor Bainbridge reviews and lampoons here. Meanwhile, Stewart Baker, former Assistant Secretary of Policy for the Department of Homeland Security, raises some other questions about breakdowns in security policy. IOZ cautions, however, that this may be a problem of too much information, rather than too little. And Josh Gerstein says that the episode could complicate plans to close the detention center at Guantanamo.
The Democrats secured enough votes to force cloture on the health-care bill before the Senate. Ben Nelson (D-Neb) will cast the final vote. Mark Murray had been arguing that it was time for President Obama to “get mean” in order to whip Senate Democrats into line behind the bill. Brendan Nyhan sighs at the belief that presidential willpower is all that’s needed to accomplish legislation and coins a neat new phrase: The Green Lantern theory of the presidency. Hat tip to James Joyner.
The U.S. either backed or supported an attack in Yemen that targeted Anwar al-Aulaqi and two al-Qaeda leaders. Initial reports suggested that al-Aulaqi, who had been implicated in the Fort Hood shootings, was killed, but that now appears doubtful. At least 30 people, all suspected militants, were killed.
In December, 2003, the Department of Homeland Security raised the terror alert level to orange, warning of possible attacks that could exceed 9/11 in terror and damage. As it turns out, the “chatter” that led to that heightened state of alert was, at least in part, drummed up by a Nevada man who conned the CIA into believing that he could detect “bar codes” in Al-Jazeera broadcasts, even though he could not explain how he was doing so. Kudos to the French intelligence services, who eventually convinced the CIA that Dennis Montgomery was a con man (though they did not convince the Air Force, which gave Montgomery $3 million this January). The original story is in Playboy, for those of you who don’t mind only reading the articles (advertisements don’t have nudity but may be NSFW depending on your sensitivities), and has been confirmed by former Homeland Security advisor Frances Townsend.
President Obama announced that 30,000 additional troops will be deployed to Afghanistan. Obama also announced that the U.S. will begin to draw down troop levels in Summer 2011. The New York Times and Washington Post both have descriptions of the deliberation process. James Joyner points out that Obama and Secretary of Defense Robert Gates can’t seem to agree on whether the 2011 timeframe is a deadline or a guideline (nor, perhaps, can Secretary of State Hillary Clinton and Press Secretary Robert Gibbs). Wired has a neat feature on how the strategy is “sold” to the public.
A couple seeking (what else?) a reality show gig crashed the White House state dinner for Indian Prime Minister Manmohan Singh. The Secret Service has promised an investigation, but so has Congress. Now the White House pledges to block the White House social secretary from testifying before Congress, citing separation of powers. The social secretary’s role in the fiasco is already being questioned. Sandy Levinson can’t imagine that the Constitution was written to shield the social secretary from questioning by Congress. Neither can Dana Perino and Bill Burke. Orin Kerr reviews the possible criminal charges that the couple may face and reminds you that “Crashing a White House state dinner, and then bragging about it on Facebook, is really really dumb.”
The Supreme Court vacated an appellate court ruling on detainee abuse photos. The Second Circuit, including Justice Sonia Sotomayor, had ordered the government to turn over the photos to the ACLU. However, the court noted that legislation has since been passed concerning the photographs. The ruling does not end the matter; it was remanded to the district court.
(This entry originally appeared on the blog of the American Constitution Society.)
Roughly since the second Reagan administration, separation of powers sophisticates (SOPS) have been held in thrall – whether in joy or dread – by the theory of “the unitary presidency.” Its central claim is that the president is constitutionally entitled to direct personally the exercise of any and all discretionary authority that Congress vests in any officer of the executive branch. Say the Center for Disease Control is told to write a pamphlet about AIDS. The president gets to edit it. NASA scientists are supposed to write a report on climate change. The president gets to tell them if global warming is good science. Maybe the Park Service has been given the discretion to limit certain activities in national parks either through the imposition of user fees or the promulgation of regulatory restrictions. The president gets to pick. And so on. Any and all discretionary decision making in the executive branch would be hypothetically subject to presidential control, even in areas of government activity for which Article II gives the president no inherent authority.
A number of fellow academics for whom I have great personal affection and intellectual respect assert (a) that they are constitutional originalists and (b) that unitary executive theory represents the proper reading of the Constitution. As I wrote in Madison’s Nightmare: How Executive Power Threatens American Democracy (University of Chicago 2009), I don’t think these positions can be squared. Eighteenth century ideas of executive power simply did not include centralized policy control over all of public administration.
The idea of the unitary presidency is a very tough one, however, to test in court. One would have to imagine a case in which a party with standing was injured by an administrative action that the relevant officer avowedly undertook for the sole reason that the President ordered her to do so, but which, she confesses, she otherwise would not have pursued. Hard to see that happening. So, we SOPS are left to read other tea leaves, and the tea leaves we read most assiduously appear in Supreme Court opinions on appointments and removals. That is because the Court’s conclusions on the president’s appointment and removal powers would seem to have some logical connection to its inferences about the president’s supervisory powers, as well.
This is the main reason that even those of us who devote little if any time to thinking about securities regulation care about Fair Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C. Cir. 2008), cert. granted, 77 U.S.L.W. 3625 (U.S. May 18, 2009) (No. 08-861), in which the high court will hear oral argument on December 7. This case involves the constitutionality of the Public Company Accounting Oversight Board (PCAOB), which was created by the Sarbanes-Oxley Act to oversee the activities of public company auditors.
It is an odd institutional creature – a nonprofit private corporation that has been given enforcement, adjudication, and rulemaking powers. The members of the PCAOB are appointed by the Securities and Exchange Commission – presumably because Congress found them to be “inferior officers” and thus subject to appointment, at Congress’s discretion, by the “heads of departments” – and are not directly removable by the president. This is clearly not the unitary executive at work.
Over a scathing dissent by Judge Brett Kavanaugh, the D.C. Circuit upheld the PCAOB on the grounds that (a) PCAOB members are sufficiently subordinate to the SEC to count as “inferior,” and (b) both the appointments provisions and limited removability under Sarbanes-Oxley are constitutional under Morrison v. Olson. These holdings plainly invite a reconsideration of Morrison, which is the Supreme Court opinion most discomfiting to champions of the unitary executive. Morrison upheld Congress’s decision to create an officer called “independent counsel,” who would be appointed by the judiciary – permissible only for “inferior” officers – and subject to removal only for good cause and only by the attorney general. Following a sort of multi-factor balancing test, the Supreme Court concluded that independent counsels count as “inferior” for constitutional purposes, and that their limited removability did not deprive the president of his capacity to discharge his Article II functions. It is the removal point in Morrison that most gives presidential unitarians heartburn. Were the Supreme Court now to insist that all officers of the United States must be removable at will by the president, that might well signal the president’s entitlement also to command their exercise of discretionary authority. (I say “might well” because the points are analytically distinct. A president entitled to fire officers at will might still be legally required to allow them to exercise their discretion as vested and then fire them post hoc.)
As it happens, however, of the seven Justices in the Morrison v. Olson majority, only one – Justice Stevens – remains on the Court. Justice Scalia has since been joined on the Court by Chief Justice Roberts and Justices Thomas and Alito, all of whom, whether as jurists or as government lawyers, have been notably staunch advocates of the “unitary executive.” The apparent “swing vote,” as is often the case, belongs to Justice Kennedy, who recused himself in Morrison and who, in other contexts, has sometimes seemed sympathetic to categorical claims of inherent executive power. There is thus some real doubt as to the enduring vitality of the Morrison analysis.
Because five Justices may, of course, decide anything, it is technically true that a majority in the PCAOB case would have the option of using the case either to limit Morrison to its facts or overrule Morrison’s approach to the removal issue. The latter especially might seem to bolster unitary executive theorists and would raise doctrinal doubts – at least at the “tea leaf” level – about the constitutionality of independent agencies. Or, the Court might decide the case modestly, leaving Morrison’s broad separation of powers implications untouched. (I assume that the Court did not grant certiorari in the case simply to affirm the D.C. Circuit.)
A modest opinion would likely turn on the “inferior officer” issue. That is, it would be enough to invalidate the PCAOB’s mode of appointment to find its members are “principal,” not “inferior” officers, and can thus be appointed only by the president and with the Senate’s advice and consent. Whether PCAOB members count as inferior officers is, however, not necessarily an easy question. Although they receive substantial SEC supervision and appear to lack significant final, unreviewable policymaking authority, the PCAOB has important investigative and prosecutorial powers that involve genuine discretion.
Commenters predicting that the PCAOB case will provide the occasion to limit Morrison sometimes point to the case of Edmond v. United States, 520 U.S. 651 (1997), in which the Court unanimously (through an opinion by Justice Scalia) overturned the appointment by the Secretary of Transportation of civilian members of the Coast Guard Court of Criminal Appeals. The opinion noted, however, that the civilian members were not “inferior” under at least two of the Morrison v. Olson criteria: they are not limited in “tenure” to a single defined task and they are not limited in “jurisdiction” to focusing on a single individual or set of defendants. The Scalia opinion pointedly went on, however, to state that “‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.” The obvious suggestion was that this test, not the Morrison balancing of factors was the better test. Advocates of “unitary executive” theory may be hoping that the PCAOB case at least reads Edmond as overturning Morrison’s approach to inferiority. (It would seem an odd move since Edmond acknowledges that its result is consistent with Morrison.)
Of course, even if Morrison’s approach to inferiority were overturned, the holding would leave independent agencies intact. The commissioners and board members who head our key independent agencies are appointed by the president with Senate advice and consent, so there is no appointments issue raised. Congress, however, whenever it wanted to divest the president of appointments power, would have to render the officer whose duties are at stake substantially subordinate to an officer whom the president does appoint. That would put an end to any prospect of resurrecting the precise model of special prosecution enacted after Watergate – but perhaps Judges Laurence Walsh and Kenneth Starr already accomplished that.
In the current political climate, the most dramatic point of President Obama’s West Point speech on Afghanistan. was neither his commitment of additional forces or the precise timing to begin a drawdown of our troops. It was his determination to apply cost-benefit analysis to our military commitments.
Of course, it helps a President who has not served in the military if he can cite an iconic general for what should be a common-sense point. So, he invoked Dwight D. Eisenhower for the doctrine: “Each proposal must be weighed in the light of a broader consideration: the need to maintain balance in and among national programs.”
In post-Eisenhower Washington, this is revolutionary stuff. As progressives propose initiative after initiative to improve the health, education and welfare of the American people, we are continually pounded by ominous predictions of ruinous cost. Yet, when it comes to national defense, there appears to be no ambition too excessive, no cost too burdensome, no deficit too large.
By reciting what we might now call the Eisenhower-Obama Doctrine, President Obama, to my mind, is setting the stage for the rest of a two-term presidency. He inherited, as he frequently reminds us, two wars, a huge budget deficit and an economy on the brink of depression. He is willing to devote much of his first term energies to cleaning up the inherited messes in the economy and national security. What he is not willing to do is put off the pursuit of other critical national priorities indefinitely.
In a wise essay, Jacob Weisberg recently predicted that Obama, by State of the Union time, is likely to appear as having accomplished more in the first year of his presidency than any chief executive since FDR. Like Weisberg, I do not believe Democrats will scuttle health insurance reform altogether, and even the most modest version of what is being proposed would bring huge help to millions of Americans. Add that to the start of an economic recovery and a repositioning of America in the eyes of the world and it looks like a pretty good year.
And how will things look by 2012? President Obama has promised a complete withdrawal of combat troops from Iraq by the end of 2011. I now predict he will do the same for Afghanistan by 2013. Why? In 18 months, there will either be discernible improvement in Afghanistan or not. If there is, he has the same basis for phased withdrawal as now exists in Iraq. If not, the American people will simply insist on a strategic exit. And, if job growth begins to pick up next year or by spring of 2011, the Obama Administration will have set the table for a second term largely devoted to the domestic reforms that are pretty obviously at the top of the President’s personal to-do list.
That does not mean, of course, that jobs, education, financial services reform, climate change and the rest of the domestic agenda will be on hold until 2012. There is much that might still be accomplished in the first term. But the timing of withdrawal from Iraq and the beginning of a drawdown in Afghanistan helps to set a timeline for progress on the home front, as well.
In saying this, I do not want to be misinterpreted as happy with the current pace of change. Like many progressives, I am angered by how slowly, if at all, those who undermined the rule of law and our economic security over the last decades have been brought to any measure of accountability. The scope of congressional ambition with regard to health care, climate change, financial regulation, and education strikes me as too narrow – and I wish the Administration were turning its back yet more dramatically on Bush-era abuses and preposterous claims of executive power.
But President Obama has given me hope. One of his favorite words is “persistence,” and his West Point speech seems to me to be signaling the time frame within which a persistent President can help deliver “change we can believe in.” Even as progressives rightfully keep pushing, President Obama seems determined not to let America’s reflexive support for all things military to blur his focus on other national priorities. That’s a very big deal. President Eisenhower would be proud.
The Senate has reversed position on bringing Guantanamo detainees into the U.S., shooting down an amendment that would have blocked funds from being used for that purpose. The Washington Post points out, however, that this is more symbolic than practical. Marc Ambinder points out that the real story is that 75 detainees will neither be charged nor transferred nor released. Jonathan Hafetz, perhaps the best-known lawyer for Guantanamo detainees, says that detention policy remains “essentially lawless.” Steve Aftergood, meanwhile, has posted up records from two House Judiciary Subcommittee hearings on military commissions.
Worried that Khalid Sheikh Mohammed and other accused terrorists might be acquitted by a civilian jury? Rest assured, Attorney General Eric Holder has “thought about that possibility” and reminds you that, if they are acquitted, they will be put back into military detention. Adam Serwer provides more details; Eric Posner says that this amounts to a “two-tier” system of justice. John Yoo launches another critique, claiming that the trial will provide an “intelligence bonanza” to al-Qaeda. Jack Goldsmith and Jim Comey argue that trial is the right decision, given the problems that commissions and tribunals have faced over the last eight years. David Feige worries that precedents created by the case will impair future detainees from arguing their rights. And Pat Buchanan asks whether this means we are no longer at war.
Many of you know that one of the arguments against military contractors is that their higher pay drains the U.S. military of qualified personnel. USA Today now reports that a similar problem occurs at the top, where generals are often hired back and paid two to three times as much as they were earning while on duty to be “mentors.” Many of the generals have concurrent jobs with defense contractors.
Time put together a story detailing how White House Counsel Gregory Craig found himself shoved out of the White House. Also included is the story of how the Obama administration walked back some of their tough talk on transparency and openness in government.
Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks, will face trial in a civilian court in New York. Glenn Greenwald laments that only some detainees will be selected for prosecution. James Joyner fails to see the upside of providing a civilian trial.
President Obama is reportedly unhappy with the Afghanistan strategies that his advisors presented to him and wants them to redo the options to include more information about withdrawal estimates. Fred Kaplan has some analysis of the president’s concerns, including his aversion to a decades-long counterinsurgency strategy. Kevin Drum reports that the military may not provide any “light footprint” plans. Rich Lowry says that second-guessing the military is below the president’s pay grade. Meanwhile, Defense Secretary Bob Gates is getting upset with the media’s ability to find out about these deliberations. “Everybody out there ought to just shut up,” he said, referring to leakers. Of course, possibly the biggest leak occurred this week when U.S. Ambassador Karl Eikenberry sent two cables expressing doubt that Hamid Karzai is the right man for the job in Afghanistan.
White House Counsel Gregory Craig will step down early next year. Craig, who was charged with closing Guantanamo Bay this year, had been under fire for his lack of progress with detainee issues and seeming lack of political awareness.
The White House will ask Congress for supplemental war funding, continuing a practice that the Bush administration used to break up the full cost of the war. Furthermore, McClatchy reports that the White House is planning to deploy an additional 34,000 troops to Afghanistan but is waiting for PR support before making an announcement. Meanwhile, Andrew Exum has found three alternative strategies to the McChrystal plan that he supports and has posted them up. For quicker thoughts, see Robert Farley’s pithy comments on the coming choice of defense strategy, or the Economist’s quick hit on why Afghanistan is not Iraq.
An Army psychiatrist, Maj. Nidal Malik, opened fire at Fort Hood, killing at least a dozen soldiers. Malik was scheduled to be deployed to Afghanistan. Speculation abounds about his motives; Malik is still in the hospital after being shot four times during the attack. Kevin Drum forwards on a firsthand account of the shooting.
23 Americans, some or possibly all CIA agents, will find themselves in prison if they ever return to Europe. The agents, along with 2 Italians, were convicted in absentia of kidnapping a terrorism suspect from Italy and “rendering” him to Egypt. “Ishmael Jones” claims that this is actually a sign of a risk-averse CIA.
Off-year elections delivered two governors’ offices into Republican hands, though the GOP also lost a House seat in New York that had been held for more than a century. Analysis trends towards the belief that this shows the beginning of a backlash against President Obama and the Democrats, though others claim that three races don’t provide an adequate sample. Victor Davis Hanson counsels “wait-and-see.”
Abdullah Abdullah withdrew from the run-off election against President Hamid Karzai in Afghanistan. Secretary of State Hillary Clinton rushed to assure everyone that this would not affect the vote’s legitimacy. Meanwhile, the New York Times discovered that Karzai’s brother is not only a major player in Afghanistan’s thriving drug trade but also involved with the CIA. Congress is displeased that, again, they are learning about CIA operations only by reading their newspapers. But The Economist says that this is nothing new and Philip Giraldi says this is something good.
The economy may be emerging from the recession. Treasury Secretary Tim Geithner cautioned against excessive optimism but confirmed reports that GDP grew during the last quarter. Geithner credits the administration and Congress for the growth; so does Steve Verdon, who worries that the governmental stimuli are providing false indicators of recovery. Kevin Drum says that little of the growth is going towards wages. And Sam Staley may have the best point: It took almost a year for economists to declare that we had been in a recession; it will likely take a similar amount of time for them to discover that we have recovered.
Ali Al-Marri, who was held as an enemy combatant in the United States for six years, has been sentenced to more than eight years in civilian prison for providing material support to a terrorist organization. The judge said that the sentence, which could have been for as long as fifteen years, was shortened to reflect time that Al-Marri spent in military detention.
Robert J. Delahunty has prepared a paper defending John Yoo’s 2001 OLC memorandum (which he co-authored) that stated that the Fourth Amendment would not apply to any military operations taken against terrorists, even on U.S. soil. Orin Kerr responds, arguing that Delahunty is constructing an overbroad scheme that provides no guidance for interpretation of current law nor for the interpretation of specific fact scenarios.
I am currently participating in on online debate under the auspices of the Federalist Society regarding a case hardly anyone has heard of that is now before the U.S. Supreme Court. The case is called Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB). It poses the question whether Congress acted permissibly in structuring the PCAOB. Its members are (a) appointed by the Securities and Exchange Commission, not by the President, and (b) removable only by the Securities and Exchange Commission – not by the President – and only for good cause. The Federalist Society has asked its debaters to discuss whether these appointment and removal provisions are unconstitutional.
As my colleague Hal Bruff writes in a forthcoming essay, this is the kind of case only separation of powers cognoscenti typically follow, even though it has the potential – albeit, just slight potential – to revolutionize our separation of powers law. That is because, if the Court overturns the removal provisions, it may well cast into doubt the great many statutes that create administrative agencies throughout the federal government, such as the Federal Trade Commission and the Federal Communications Commission. It could instead vindicate so-called Unitary Executive Theory, which I try to refute in Madison’s Nightmare.
I have reprinted below my opening entry in the debate. Anyone intrigued can follow the unfolding conversation here. The other invited participants are Martin Flaherty, Andrew G. McBride, Gillian E. Metzger, Donna M. Nagy, Tuan Samahon, Christian G. Vergonis, and Christian J. Ward. * * *
Appointments: There’s no real doubt that members of the PCAOB are “officers of the United States.” That is, they have duties regarding the implementation of public law that go beyond the tasks Congress could assign to one of its own committees. Hence, its members must be appointed pursuant to the Appointments Clause. And, under the Appointments Clause, they must be appointed by the President with the advice and consent of the Senate, unless they are “inferior officers,” in which case they may be appointed by the president alone, by the head of a department, or by a court of law.
This is the PCAOB’s greatest vulnerability. The members of the PCAOB may well not be “inferior” in the constitutional sense. Although members are removable for good cause by the SEC, their jurisdiction is far more wide-ranging than that of the independent counsel upheld in Morrison v. Olson. The Court could leave Morrison and its antecedents intact, and enjoin the enforcement operations of the PCAOB on noninferiority grounds.
This is doctrinally the most modest way to overturn the PCAOB, and I predict this will be the result, with hardly any greater implications for separation of powers law. If PCAOB members are deemed “inferior,” then I do not see any other vulnerability on the appointments side. As the Court observed in Morrison, Congress’s discretion in choosing among the designated modes of appointing inferior officers is not limited by the text. There would not be anything constitutionally anomalous in giving the SEC power to appoint people with expertise in corporate accounting.
Removal: The more controversial question involves the limitation on direct removals by the President. It is not controversial under Morrison v. Olson. Morrison said that limitations on presidential removal powers are permissible unless they interfere with the President’s capacity to discharge his constitutionally assigned functions. The President, of course, is constitutionally obligated to take care that the laws be faithfully executed. If a PCAOB member is derelict in this regard, the President must be able to instigate that member’s discharge. Under Sarbanes-Oxley, he cannot do so directly – which was also true in Morrison v. Olson – but the failure of the SEC to correct any such dereliction would presumably be good cause for the dismissal of any recalcitrant SEC Commissioner. Under Morrison, this holds up.
The rub, of course, is that there may well be five members of the Court who would now like to overrule Morrison – Roberts, Alito, Scalia, and Thomas, almost certainly, and quite possibly, Kennedy, who recused himself in Morrison. Reaching out to limit or reverse Morrison, however, would be a conspicuous piece of judicial immodesty, especially since the PCAOB can be invalidated on the less controversial ground of noninferiority. I thus predict the Court will not attack Morrison – but this may be wishful thinking on my part because (a) I agree with Morrison and (b) modesty on the Roberts Court is, at best, an occasional virtue.