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September|October 2005
Furious George By Neil Kinkopf
The Missing Link By Michael Greenberger
Monkey Wrench By Cass R. Sunstein
Lessons From the Swiss Cheese Map By Shari Motro
Disarming and Dangerous By Chris Suellentrop
King James I, of Michigan By Geoffrey Gagnon

Furious George

The belligerence of the Bush Administration in pursuing expansive power has a long Republican pedigree.

By Neil Kinkopf

IN 1989, ASSISTANT ATTORNEY GENERAL WILLIAM BARR issued an extraordinary, and evidently unsolicited, legal opinion to all agencies of the federal government. Barr headed the prestigious Office of Legal Counsel, which advises the president and executive branch on constitutional issues, and his memo read like a Top Ten list of Congress's alleged meddling in the president's business. "Attempts to Restrict the President's Foreign Affairs Powers" was No. 9. "Micromanagement of the Executive Branch" was No. 4. Leading the list was "Interference with President's Appointment Power." "Only by consistently and forcefully resisting such congressional incursions," the memo warned, "can Executive Branch prerogatives be preserved."

Never before had the Office of Legal Counsel, known as the OLC, publicly articulated a policy of resisting Congress. The Barr memo did so with belligerence, staking out an expansive view of presidential power while asserting positions that contradicted recent Supreme Court precedent. Rather than fade away as ill-conceived and legally dubious, however, the memo's ideas persisted and evolved within the Republican Party and conservative legal circles like the Federalist Society. They emerged last year in the form of the Bush Administration's memo that asserted the president's power to authorize torture.

Bridging a 15-year gap, the Barr memo provides the theoretical and strategic foundations for the torture memo. It supports the Bush Administration's position that the American rule of law gives the president expansive power, a view that, in stark terms, means the president may order the use of torture even though a statute specifically outlaws the practice. As President Richard Nixon famously claimed, "If the President does it, that means it is not illegal."

Both memos tap into a debate that is as old as the Constitution itself. On one side are those who take the view that the Constitution permits Congress and the president each to exercise some authority over nearly every matter that the federal government faces. Call this the reciprocity view of the separation of powers. Its emphasis on collaboration between the two branches makes progressive programs like Franklin D. Roosevelt's New Deal and Lyndon B. Johnson's Great Society possible. The New Deal's Social Security Administration is a model of the reciprocity approach, because it blends the legislative role of issuing regulations, the judicial role of adjudicating benefit claims, and the executive role of enforcing compliance with social security law. Reciprocity has been the prevailing view for most of the nation's history.

On the other side of the debate are those who believe that the Constitution divides power into separate spheres and that each branch of government controls matters within its sphere. Call this the exclusivity view. Ostensibly, it underscores the power of Congress as well as the president, but it actually exalts the president over Congress. In practice, the exclusivity view would make action across federal branches difficult and would impede ambitious federal programs and force Americans to rely on the private sector to provide necessities like health care, a clean environment, and safe products and workplaces. This view informs the Barr and torture memos.

Exclusivity has its roots in the 1926 Supreme Court case of Myers v. United States. In an opinion written by Chief Justice—and former president—William Howard Taft, the court invalidated the Tenure in Office Act, which required the president to secure Senate approval before removing a host of federal officials like Postmaster First Class Frank Myers, who ran the Post Office in Portland, Ore. Justices Oliver Wendell Holmes and Louis Brandeis issued powerful dissents. The majority decision rested on an expansive reading of the Constitution's Take Care Clause, which provides that the president "shall take Care that the Laws be faithfully executed." Because the Constitution vests the executive power in the president, Taft reasoned, Congress may not enact statutes that interfere with the president's discretion in supervising the executive branch.

The Supreme Court, however, has never followed Taft's reasoning. The next time it considered a limitation on the president's power to remove officials from their posts was in the 1935 case of Humphrey's Executor v. United States. In Humphrey's Executor, the court characterized Taft's reasoning in Myers as obiter dictum, something said in passing, and limited its holding to "purely executive officers." The court specifically rejected Taft's view of the president's constitutional power under the Take Care Clause, reading it not as a power but as a limitation. The Take Care Clause demands that the president obey the law, the court said, and repudiates any notion that the president may dispense with the law's execution.

The decisive blow to Myers came in the 1952 case of Youngstown Sheet & Tube v. Sawyer, in which the Supreme Court overturned President Harry S. Truman's order that the federal government seize the nation's private steel mills during the Korean War. The Truman Administration argued for a broad view of presidential power based on the Executive Power Vesting Clause ("The executive Power shall be vested in a President of the United States of America"), the Take Care Clause, and the Commander in Chief Clause ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States"). The court rejected Truman's reading of the Constitution. The most influential of the seven opinions issued in the case is Justice Robert Jackson's, which concisely states the reciprocity view of the separation of powers. "While the Constitution diffuses power the better to secure liberty," Jackson wrote in concurring with the majority opinion, "it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

In every subsequent case that raised the exclusivity view, the court decisively rejected the theory. In 1971, for example, the justices refused to allow the Nixon Administration to stop The New York Times and The Washington Post from publishing the Pentagon Papers, rejecting Nixon's argument that his authority as commander in chief included unilateral authority to impose a prior restraint on information whose publication would threaten national security. In 1974, they rejected Nixon's claim of executive privilege to withhold the Watergate tapes from the special prosecutor who had subpoenaed them. And in 1975, the justices turned down so-called budgetary impoundment authority, a power that Nixon asserted before he resigned and that would have allowed him not to spend lawfully appropriated funds to administer programs that Congress had enacted.

Undeterred by Supreme Court precedent, the Office of Legal Counsel picked up the Nixon argument and pushed the exclusivity model throughout the Reagan and first Bush administrations. The model was a match for President Ronald Reagan's view of government, captured in his declaration that "government is not the solution to our problem; government is the problem."

The exclusivity view is founded on a commitment to liberty, understood in a negative sense as freedom from the imposition of government power. On this view, the Constitution is best read as structuring government power in a way that is purposefully awkward. By requiring punctilious compliance with rigid divisions of power, the Constitution makes it difficult for the government to act.

Arguing for exclusivity allowed political conservatives like Reagan to promote the private sector as the sphere in which major problems of society should be solved. In 1988, for example, a law was enacted requiring the Department of Health and Human Services to mail every household an educational pamphlet on AIDS. The Reagan Administration objected strongly to the content of the pamphlet and blocked it from being mailed, a move designed to ensure that any information about AIDS would come from the private sector rather than the federal government. Congress ordered the pamphlet mailed anyhow, and the OLC condemned the order as a violation of the president's constitutional power to supervise the Health and Human Services Department. Exclusivity also squared with conservatives' mistrust of international entanglements through organizations like the United Nations and their preference for unilateralism in foreign affairs.

The OLC under Reagan initially pushed the exclusivity view in obscure settings that attracted little public attention. In communications with Congress, the OLC objected to legislation that created so-called hybrid commissions, which combined legislative, judicial, and executive functions. One example is the Federal Sentencing Commission, which issues binding rules that operate like the requirements of statutes yet has as members judges and executive branch officials like the attorney general. The OLC even objected to hybrid commissions that were merely advisory. So frequently did the office protest that it developed boilerplate language for its objections. In the Barr memo, for example, federal agencies are instructed to offer the following criticism of hybrid commissions: "The creation of a Commission that is not clearly legislative, judicial, or executive, tends to erode the structural separation of powers. . . . [T]he separation of powers suggests that each branch maintain its separate identity, and that functions be clearly assigned among the separate branches. The Commission does not mesh with this constitutional structure."

The OLC also complained about statutory instructions for executive branch agencies not to take action without considering the views of other agencies or the findings of particular studies. The office's premise was that the instructions intruded on executive branch deliberations. Other OLC objections were aimed at statutes requiring executive agencies to report to Congress, to follow a particular process in making a decision, or to recommend legislation.

Although the objections drew little attention, their volume was impressive. They were typically made in brief statements called bill comments, which were issued to Congress whenever it proposed legislation. If Congress passed legislation over a bill comment's objection, the president would occasionally incorporate the objection into his signing statement, which summarized his understanding of the bill's meaning when he signed it into law.

AT THE BEGINNING OF THE FIRST BUSH ADMINISTRATION these seemingly trivial complaints were organized and assembled into the single legal opinion that became the Barr memo. When Barr signed the opinion in 1989, it was less than a year after the Supreme Court decided Morrison v. Olson, which held that Congress may regulate the executive branch as long as it does not prevent the president from performing his constitutional role. Rather than comply with the court's repudiation of exclusivity, though, the OLC continued to adhere to its expansive view of executive power. The Barr memo said the facts described in Morrison could usually be distinguished from other situations and that the case's holding should not be followed in any event. "Whether distinguishable or not," said the memo, "the power of the executive branch will be best preserved by vigorous opposition to restrictions" on the president's power. As for Morrison's author, former OLC head William Rehnquist, Justice Department lore holds that his portrait was removed from the OLC conference room, while the lone Morrison dissenter, former OLC head Antonin Scalia, kept his place of honor on the conference room wall.

Throughout the first Bush Administration, the exclusivity model gained a considerable head of steam, and the OLC applied it to increasingly significant matters. For example, in 1989 the office provoked a major battle within the Department of Justice by issuing a legal opinion to the attorney general concluding that the qui tam provisions of the False Claims Act were unconstitutional. (Qui tam is an abbreviation for qui tam pro domino rege quam pro sic ipso in hoc parte sequitur, meaning "who sues for the king as well as for himself in this matter.") The qui tam provisions authorize whistleblowers to bring lawsuits on behalf of the federal government to recover damages for fraud committed by federal contractors. From 1988 through the end of last year, the government recovered more than $7 billion from qui tam suits involving health care, defense, and other types of fraud. The typical case involves an employee who knows that his employer has committed fraud, and the False Claims Act allows whistleblowers to keep a portion of any award. Because whistleblowers are not supervised or controlled by the president or his appointees, though, the OLC argued that the qui tam provisions were inconsistent with the exclusivity view. The OLC also concluded that qui tam suits violated the Appointments Clause (which authorizes the president to appoint federal officers with the advice and consent of the Senate), because litigating on behalf of the United States is a job that can be performed only by an officer appointed in compliance with the Appointments Clause. Since qui tam whistleblowers are not appointed, the argument goes, the Appointments Clause prohibits them from conducting litigation.

During the Clinton Administration, the OLC reviewed its jurisprudence on the separation of powers and in 1996 issued its conclusions in a memo signed by Walter Dellinger, who presided over the office. The Dellinger memo specifically repudiated the Barr memo and essentially adopted the reciprocity model.

It is easy to see how reciprocity is consistent with the underlying legal and political philosophies of the Clinton Administration. The theory derives from a belief in the importance of effective democracy, a view that the Constitution allows the executive and legislative branches to work together in responding to social and economic problems so that We the People can govern ourselves effectively. On the Clinton agenda, health care reform was the leading example of an effort that depended on effective democracy. Reciprocity also acknowledges the important role that the Constitution assigns to Congress and allows greater room for Congress to collaborate with the president in the structuring and direction of government.

When President Bill Clinton took office, the Democratic Party had held majority status in Congress for most of the previous 60 years. As a result, his Republican predecessors had pursued a domestic agenda consisting largely of opposition to Democratic programs and policies. Clinton's agenda, though, looked generally to government for solutions to public problems, and the agenda's success depended on working with Congress, especially when the Democrats fell into the minority in 1994. Sometimes this required Clinton to cede power. For example, Senator Daniel Patrick Moynihan demanded that the Social Security Administration be made an independent agency, a change that would restrict the president's authority to remove the agency's leader. Rather than object on constitutional grounds, Clinton signed Moynihan's bill. While Clinton's health care reform proposal ultimately failed, the collaborative strategy paid off in other areas such as trade policy, when Congress granted Clinton fast-track authority to conclude the North American Free Trade Agreement.

Meanwhile, conservatives outside the Clinton Administration kept the exclusivity model of executive power alive and expanded it by objecting to important elements of Clinton's foreign policy. For example, during the Senate's 1996 deliberations on whether to ratify the Chemical Weapons Convention—which forbids nations from producing chemical weapons and establishes an inspection process to enforce compliance—the Senate Judiciary Committee heard the testimony of Professor John Yoo, a conservative constitutional scholar from the University of California at Berkeley. Yoo contended that the convention would be unconstitutional because the inspectors would be appointed by an international body rather than through a method prescribed by the Constitution's Appointments Clause. Similarly, some U.S. military personnel refused to serve under foreign commanders during NATO operations in Kosovo. The soldiers also based their objections on the Appointments Clause, arguing that the foreign commanders had no authority over U.S. personnel because they were not appointed in compliance with the Constitution. Neither Yoo's nor the soldiers' claims were successful, but they set the stage for the revival of the exclusivity model in the current Bush Administration—and for its expansion into the realm of foreign affairs.

Last summer, the torture memo was leaked to the press, and the exclusive power model emerged into public view. Although the memo was signed by Jay Bybee, then head of the OLC and now a judge on the Court of Appeals for the Ninth Circuit, its principal author is reported to have been John Yoo, who served as Bybee's deputy while on leave from Berkeley. The memo's most controversial section concludes that Congress has no authority to prohibit the president from ordering the torture of enemy combatants to gain military intelligence. In other words, the federal law that explicitly forbids the use of torture cannot apply when the president approves its use. To support this conclusion, the memo presents all of the arguments that the Supreme Court has rejected since Myers. Amazingly, given the prominence of the case in this area of law, the memo does not cite Youngstown.

No one should have been surprised. Since the 1980s, conservatives had crafted, refined, and expanded the exclusivity approach to the separation of powers, while distinguishing or dismissing legal authority that discredited the approach. Although the public uproar over the torture memo led the OLC to withdraw the opinion and issue a replacement memo, the office did not retreat from the exclusivity model. The replacement memo withdrew the original torture memo because its discussion of the president's constitutional power was "unnecessary." In fact, all evidence suggests that the OLC still adheres to the theory of the torture memo. For example, the office recently released a 2001 opinion claiming that the president has the power to make war unilaterally, without first securing a declaration of war from Congress.

The first legal challenges to President George W. Bush's exclusive power in foreign affairs came before the Supreme Court in three cases decided in June 2004. These cases questioned the president's authority to detain persons designated as enemy combatants. The Justice Department argued that the Constitution vests such authority exclusively in the president, and that it is not subject to judicial review.

As it has in so many cases since Myers, the court ruled that judicial review was appropriate and that the president's power derived from the authority Congress granted him by statute rather than from the Constitution. In one of the three cases, Hamdi v. Rumsfeld, the court ruled that the president's power was circumscribed by the statute authorizing the use of force against the Taliban and Al Qaeda in Afghanistan. The Administration claimed unlimited power to detain enemy combatants during the war on terror, but the court ruled that the power existed only while hostilities continued in Afghanistan and that detentions would be subject to judicial review of whether they complied with the requirements of the Constitution's Due Process Clause. The Supreme Court cited Justice Jackson's concurring opinion in the Youngstown case and warned of the potential for abuse if the president were granted the power he claimed. Although the court did not expressly mention them, it must have had in mind the abuse of inmates at Abu Ghraib prison in Iraq and the claims of presidential power contained in the OLC torture memo, which leaked after the cases were argued but before they came down.

Beginning with the Barr memo, conservatives have demonstrated a growing willingness to ignore Supreme Court precedent in pushing for the president's exclusive power in foreign policy and a host of other important areas. But they may not have to ignore the justices much longer. The turnover on the Supreme Court presents the Bush Administration with the opportunity to shape a bench that favors the exclusivity view. While controversies over reproductive rights, affirmative action, and same-sex relationships may dominate coverage of the confirmation hearings for John Roberts and other nominees, the court's position on the front line of defense against concentrated presidential power is an overarching reason why the hearings will demand the careful attention of the Senate as well as the American public.

Neil Kinkopf is a constitutional law professor at Georgia State University. He was a lawyer in the Office of Legal Counsel from 1993 to 1997.

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