The Holder Hearings — Part I
The recently departed Bush Administration took a notoriously broad and aggressive view of presidential or executive authority. President Bush and his lawyers thought that the President can disregard statutory prohibitions if they interfere with the President’s opinion of what actions would serve the national defense. So Congress has passed laws making surveillance authorized by warrants from a federal court the only way to eavesdrop on terrorist conversations inside the United States, but the President thinks the warrant procedures are too restrictive? No problem – the President can ignore the statute, because the Constitution makes him the commander-in-chief and gives him the authority to perform that job effectively. The argument is laid out on pages 28 to 36 of a White Paper issued by the Department of Justice shortly after the New York Times ran a story revealing the secret warrantless surveillance program that the National Security Agency had been running after September 11. This authority of the President to override statutes showed up in many of the signing statements that President Bush issued concurrently with signing pieces of legislation, infuriating members of Congress and often leaving people in the dark about when the President would follow the law or choose to disregard it.
There is now a great expectation that the incoming Obama Administration will take a noticeably different view of presidential authority. During the presidential campaign he signaled that he intends to obey the Constitution and the rule of law. And already he has begun rolling back some of the more controversial actions President Bush took as commander-in-chief, notably including, President Obama issued an executive order to roll back controversial commander-in-chief actions of President Bush, notably including ordering a stop to the military commission trials of Guantanamo detainees so that the people being held there can each be evaluated individually to decide whether a trail should proceed in a regular federal court or a regular military court martial.
It would be startling if there was not a significant shift on questions of presidential authority under President Obama – but at the same time one ought to be cautious in drawing firm conclusions regarding exactly where the Administration now stands on each of the many different aspects of executive authority. While it is often the case that actions speak louder than words, executive authority is situation in which actions can be ambiguous and words incredibly slippery. An action like closing down military commissions could mean that the President thinks he lacks the unilateral authority to create them or it could mean he has decided not to use military commissions because of how they have damaged our international reputation, even though he thinks he has the unilateral authority to use them if he wished. Decisions not to exercise authority always are ambivalent in this way, because failures to act are equally consistent with someone lacking the authority to act and also with someone having the authority and just declining to exercise it. (With respect to the military commissions themselves, of course, this question has become moot because five years after President Bush established them unilaterally, Congress enacted the Military Commissions Act giving them a statutory foundation.) (more…)