Posts Tagged ‘unitary executive’

Obama on Transparency and Scientific Integrity: Some Positive Signs with Some Mixed Signals

March 13, 2009

One kind of issue about presidential control over executive government with proven implications for “science-bending” concerns presidential control over executive branch communications with Congress. Transparency, and all the contributions to “honest brokering” and effective democracy through the “marketplace of ideas” that go with it, is impaired if the President takes the position that communications with Congress or the public must be pre-cleared politically. One notorious example during the Bush administration was the suppression of projections concerning the cost of certain health-care measures. Some such controls are of long-standing, however. Thirty-two years ago, when the author was General Counsel of the US Nuclear Regulatory Commission, the Office of Management and Budget was “coordinating” (i.e., pre-clearing) communications and testimony to Congress about legislative proposals and budgetary matters. The Commission’s nominal independence (it was of course an element of the executive branch, but its statutes provided explicitly for direct communication) softened these controls; but within the Commission itself, its Bureau “executives” sometimes exercised rather rigorous control over what they would permit their staff members to tell the Commission about perceived nuclear power risks – a rather unfortunate situation. (more…)

The Hollow Men

March 3, 2009

For the better part of eight years, the Bush Administration employed distinctly muscular and macho imagery in connection with its theories of presidential power – think John Wayne or Clint Eastwood. But in its waning days the Administration’s legal theorists were reduced to a very different image: that of the diminutive and feckless Emily Litella of Saturday Night Live fame. Regarding those strident assertions of authority, “Nevermind.” Or maybe the better pop cultural reference is Dallas. Bobby Ewing did not actually die, the entire season in which he appeared to have gone to his reward was just a dream, and Bobby could return to the show. So it is that those opinions from John Yoo and Jay Bybee were just a bad dream, and it is safe for the rule of law to return. Or maybe it is the Wizard of Oz: “Ding dong, the wicked witch is dead.”

Whatever the reference, the revelation of the recent memoranda repudiating aspects of seven OLC opinions issued in the wake of the 9/11 attacks is stunning. I will leave discussion of the seven newly released opinions to another post. For now, I want to offer a few comments on the extraordinary memorandum (bearing the misleadingly banal caption: “Memorandum to the File”) that repudiates important components of the legal foundation for the Bush Administration’s theory of presidential power.

First, as far as I am aware, this Memorandum to the File is unprecedented. OLC occasionally reverses itself on a question. But I can think of no situation in which an Administration has gone back and repudiated its own analytical approach to an entire category of issues. This action speaks volumes as to just how deeply flawed those opinions were. There continue to be commentators who assert that opinions such as the infamous torture memo involve close calls over which reasonable lawyers may differ (a rant by Andrew McCarthy over the National Review Online provides a recent example). But the repudiating memo demonstrates that these opinions do not involve points of reasonable disagreement. Rather, they involve egregious and unjustifiable departures from accepted legal principles. The theories that guided the Bush Administration at least in 2001-2003 have been roundly rejected by commentators across the political spectrum, and now are repudiated by the very Administration and the very Office that had once issued them. It now seems beyond reasonable dispute that the theories espoused by OLC under the leadership of Jay Bybee and John Yoo were clearly wrong and unsupportable by reference to accepted legal principles. (more…)