No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
George W. Bush and the Nature of Executive Authority: The Role of Courts in a Time of Constitutional Change
Abstract
The Bush administration has asserted a stunning broad vision of executive authority under the Constitution. The expansive scope of Article II power extends to matters both foreign and domestic. It includes, for example, claims of inherent authority in connection with the "war on terror" as well as administrative agency preemption of state law. This Article does not address the legality of any of the Bush administration's claims of executive power. It operates on the assumption that they are at the constitutional envelope. Its focus is on the appropriate role of courts in response to such envelope-pushing constitutional claims. The Article describes a structural equilibrium approach for courts to follow. Under this approach, the judiciary should respond to a constitutional change by preserving the foundational principles on which the Constitution is based. As the Article describes, the three foundational principles are: (1) a commitment to separation of powers both vertically and horizontally; (2) the maintenance of a role for the people in governing; and (3) the preservation of government functionality. In order to apply the theory of structural equilibrium, the Article further describes the salient features of the Bush vision of Article II executive power. Using a number of contemporary examples, the Article outlines a core feature of the Bush vision and three sub-attributes. The core feature is a commitment to the unilateral exercise of power. The three sub-attributes are: (1) power is often exercised in secret; (2) intolerance to criticism; and (3) retribution against critics. The Article then applies the structural equilibrium approach to the particular constitutional vision of the Bush administration. It does so by considering the October 2005 Term of the United States Supreme Court. It does not purport that the Court actually used the structural equilibrium approach. Rather, it considers the Term as if the Court had done so. Along the way, it discusses a number of recent high profile decisions, including those involving military commissions, campaign finance reform laws, assisted suicide, and partisan redistricting. It concludes that the October 2005 would have looked different in important respects had the Court used the structural equilibrium approach as part of its decision-making calculus.
ResearchGate has not been able to resolve any citations for this publication.
The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero - the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer's case-by-case view has enjoyed significant victories. Two trilogies of cases - one explicitly directed to the Step Zero question, another implicitly so directed - suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron's scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved.
As I prepared to return today, I was struck-despite the passage of time-by how closely connected are my topics then and now. In the Harris Lecture, I asked a simple question: How should we understand the process of international human rights enforcement? I argued that there are not one, but two human rights enforcement stories. For shorthand purposes, I call these the "horizontal story" of human rights enforcement and the story that more people should understand: the "vertical" or "transnational story" of human rights enforcement.
Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.
The law governing judicial deference to agency statutory constructions is a complex brew of improbable fictions and proceduralism. One reason this state of affairs persists is that courts have failed to resolve a contradiction between two competing, sensible impulses in deference doctrine. Oceans of precedent over the last 150 years have stressed that courts should defer to longstanding, reasonable constructions by agencies of statutes they administer. Then along came Chevron, which extolled agency flexibility and instructed courts to extend strong deference even to interpretive flip-flops. Competition between the virtues of interpretive consistency and flexibility has bubbled through and confused judicial deference analysis ever since. The Supreme Court's recent efforts to limit the scope of Chevron's strong deference to agency constructions that carry the force of law has worsened such confusion, in part because the Court's discussion and application of this concept were incoherent. This Article proposes a commitment approach to this force-of-law limitation that has deep roots in the concept of the rule of law and considerable power to clarify deference doctrine by resolving the clash between the competing values of interpretive consistency and flexibility. For the rule of law to be genuine, the default position must be that laws have general applicability - i.e., the law for X should be the law for Y as well. This truism suggests that an agency's statutory construction properly can enjoy the force of law only where the agency has committed to applying its construction consistently across time and parties. Where an agency's construction is longstanding, the agency's commitment to consistent application is self-evident. The puzzle, of course, is to reconcile this commitment approach with Chevron's praise of interpretive flexibility. One solution is to recognize that an agency can genuinely commit to a new interpretation by adopting it in a manner that makes it costly to change course later. Where agencies commit to consistency in this way, there is less need for courts to engage in independent statutory construction to protect rule-of-law values, which should leave courts freer to accept the premise of strong deference that the best way to determine the meaning of an agency's statute is to trust the agency's own (rational) construction.
When a computer and a connection to the Internet allow almost anyone to claim to be a journalist, the question of who should be covered by media shield laws becomes especially difficult. Based on the premise that it is important to preserve the journalist's privilege and to accommodate the "unmedia" if that can be done without undermining journalism's values, this article suggests that the best way to limit the journalist's privilege is not to define "who is a journalist?" or "what is news?" Instead, the privilege should extend protection to anyone who is engaged in the work process of journalism. Drawing on the profession's standards, the article proposes that an individual is "engaged in journalism" when the writer is involved in a process that is intended to generate and disseminate truthful information to the public on a regular basis. The article identifies key elements of the newsgathering process that can be judged objectively, and without undue intrusion into the editorial process, no matter who uses them or in what medium.
U.S. practices of coercive interrogation and torture since 2002 have called into question the efficacy of traditional structural constraints on executive power. Few dispute that the most egregious abuse of detainees in U.S. custody was unlawful, yet neither congressional oversight nor law-making functioned to check such treatment. This Article first considers why and how torture and abuse became such a pervasive problem post-9/11 despite affirmative laws prohibiting them. It then argues that the tools that were at all effective in checking executive power emerged from less classically "democratic" sources: a highly professionalized military and intelligence community; the media and organizations of non-governmental civil society; and actively engaged courts. While it is true that core democratic structures (particularly congressional oversight) failed to constrain executive operations in prisoner detention and treatment, these other levers of power saw at least modest success in changing the course of executive policy.
In the war on terrorism, the Executive Branch has sometimes opted to use the criminal justice system to prosecute defendants for terrorism-related offenses; and at other times, it has opted to use military force to kill or capture so-called enemy combatants. Arguably, the Executive Branch should be given discretion to choose which approach to use depending on the particular circumstances. Overseas actions might call for military force, while domestic terrorism might call for prosecution (and, upon conviction, punishment). However, military detention is especially harsh, with conditions of confinement worse than those in maximum security prisons, and much uncertainty abounds as to the procedural rights accorded to military detainees - even ones who are U.S. citizens. As a result, the Executive Branch may be able to extract (and may already have extracted) guilty pleas from terrorism defendants by threatening them with military detention if they do not plead guilty. In this Article, I argue against unilateral Executive Branch power to transfer criminal defendants into military detention, precisely because of the opportunity, whether intentional or not, for the government to profit from the coercive potential of such transfers. I use blackmail theory to show why such government conduct should be prohibited, and I use the doctrine of vindictive prosecution to show that a constitutional mechanism already exists for courts to protect defendants against coercive actions by prosecutors.
The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions. A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions: it creates a civil service not beholden to any particular Administration and a cadre of experts with a long-term institutional worldview. Executives and academics routinely malign bureaucracy as inefficient, but the inefficiency presumed in the Founders' design of three overlapping branches needs some internal replication given the seismic shift in power to the Executive Branch. This Article therefore proposes a set of mechanisms that can create checks and balances within the Executive Branch. The apparatus of these restraints is familiar - separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. The idea is to create a more textured conception of the Presidency than either the unitary executivists or their critics espouse.
The paper analyzes the fundamental constitutional questions left unresolved by the June 2004 trio of United States Supreme Court opinions in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush. It evaluates the proper role of judicial review, through the procedure of a petition for the writ of habeas corpus, of the detention of a United States citizen as an "enemy combatant" under the laws of war based on the government's allegation that the individual is a terrorist. The President's classification of a citizen as an enemy combatant rather than an ordinary criminal has consequences of tremendous significance, including the deprivation of numerous constitutional rights and confinement in military rather than civilian custody. Despite the significance of the issues at stake, however, the role of judicial review in this context is surprisingly unclear. In fact, the courts have yet to reach, much less resolve, many of the most basic constitutional questions. The paper confronts those questions, and proposes answers to them, from the perspective of structural constitutional analysis of criminal procedure and due process principles. The manuscript concludes that the Due Process Clause mandates that the government surpass substantial procedural requirements before imposing the significant deprivations of liberty caused by an enemy combatant detention. A citizen may be detained in military custody as an enemy combatant only if the government can prove that the individual is in fact a belligerent engaged in armed conflict against the United States within the terms of the laws of war. This requires proof not only of active present membership in a terrorist organization but also specific intent to carry out imminent acts of terrorism. Furthermore, the Due Process Clause requires that the government prove its claims by clear and convincing evidence and that the petitioner be given a number of important procedural protections in the hearing, including the right of access to counsel and the right to challenge the government's evidence. Only if the government can carry its burden under these rigorous procedures may it detain a citizen as an enemy combatant.
This article considers how George W. Bush chose to use the presidential signing statement and the ways in which the administration's application of this tool of direct presidential action in its first term represents a set of important initiatives. The Bush administration has very effectively expanded the scope and character of the signing statement, not only to address specific provisions of legislation that the White House wishes to nullify but also to reposition and strengthen the powers of the presidency relative to the Congress. What is almost as interesting is the fact that so few in Congress, the media, or the scholarly community are aware that anything has happened at all.
When executive branch actors interpret statutes, should they use the same methods as the courts? This Article takes up the question by considering a rule frequently invoked by the courts-the canon of constitutional avoidance. In. addition to being a cardinal principle of judicial statutory interpretation, the avoidance canon also appears regularly and prominently in the work of the executive branch. It has played a central role, for example, in some of the most hotly debated episodes of executive branch statutory interpretation in the "war on terror." Typically, executive invocations of avoidance are supported by citation to one or more Supreme Court cases. Yet those citations are rarely accompanied by any discussion of the values courts try to serve when they employ avoidance. Are those values specific to the federal judiciary, or do they reflect substantive commitments extending beyond the courts? Equally lacking is any sustained consideration of interpretive context. Does their particular institutional location and function enable executive actors to call upon sources of statutory meaning that are unavailable to courts, rendering rough tools like the avoidance canon unnecessary? This Article explores executive use of the avoidance canon along both these dimensions. As to theoretical justification, Professor Morrison shows that whether constitutional avoidance is appropriate in the executive branch turns on whether one accepts the conventional account of the canon, which sees it as serving values specific to the federal judiciary, or an alternative account, which views it as serving a set of broader norms not confined to the courts. As to interpretive context, Professor Morrison shows that because executive officials often have better access to and knowledge of statutory purpose than do the courts, some facially ambiguous texts may in fact be entirely unambiguous to the executive interpreter. In those circumstances, the avoidance canon has no role to play.
What promotes legality on the part of government under strain? This Article looks to the role of intra-executive processes in facilitating well-reasoned, legitimate conclusions on questions like the one addressed in this symposium: What are the legal authorities and limits governing coercive interrogation tactics? Admittedly, even the best legal processes are no guarantee of good substantive outcomes. Many critics would disagree with the substance of the executive's August 1, 2002, legal position on coercive interrogation no matter how it was derived. And even were all the best processes faithfully adhered to in developing the government's legal position on torture, it is conceivable that the executive would have come to the same bottom line. The value we place on fair process in the judicial system, however, is emblematic of how, more generally, effective processes remain important to both the content of legal outcomes and the public's willingness to accept them. As Justice Felix Frankfurter wrote, "[t]he history of liberty has largely been the history of the observance of procedural safeguards."