The Breakfast Table

Placing the Presidency Back Under the Law

Dear Dahlia,

I want to finish the thought I started earlier. Because in order to understand the larger significance of today’s decision, it is important to be clear about exactly how this presidency departed from fundamental legal principles. The problem is not the president’s assertion that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.

For the proposition that the president has the authority to decline to abide by statutes he views as unconstitutional, the administration has relied principally on an opinion I authored as head of the Office of Legal Counsel in 1994. And rightly so. That opinion is based upon long-standing and consistent executive practice. Moreover, the most relevant U.S. Supreme Court decision, Myers v. United States, 272 US 52 (1926), by clear implication considers it appropriate for a president to decline to execute unconstitutional statutes. And as President Carter’s Attorney General Ben Civiletti wrote in an 1980 opinion, the president’s constitutional duty to execute the laws “does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts.” 

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This view is based upon the principle that the president’s ultimate obligation is to the Constitution, and if a statute contravenes the Constitution, the president has the authority to decline to enforce it. This applies to laws that unconstitutionally impinge upon the president’s own power. It is also unremarkable for a president to announce his view that a provision is unconstitutional in a statement issued when he signs the law. 

The problem has been what those presidential signing statements say—even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power.

The fundamental, profound category error made by the administration has been to confuse two utterly different meanings of the term “inherent presidential power.” One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term “inherent presidential power” could also be taken, however, to refer to matters so deeply at the core of presidential authority that any act of Congress that regulated or limited the exercise of that power would be unconstitutional—even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters. 

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This administration has taken the astounding position that if the president has “inherent authority” to do and act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his “inherent power.” This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

The court made short work of it today. RIP “inherent presidential authority” to violate valid laws. Justice Kennedy makes this point more simply than I have. After noting that the military commission order “exceeds limits that certain statutes have placed on the President’s authority to convene military courts,” he asserts:

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This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government … has set limits on the President’s authority.

This seemingly simply proposition has huge consequences. There is no doubt that the president would have “inherent authority” as commander in chief to set up military courts. But that, the court asserts, does not preclude Congress from acting. This same principle must apply to torture, wiretapping, and countless other actions that fall within my (rather expansive) view of presidential authority. All those actions are now clearly subject to the duly enacted laws. The central legal proposition underlying numerous assertions of unprecedented power by this president is no longer tenable.

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This decision need not hinder the war on terror. In a very thoughtful early piece, Jack Balkin calls today’s decision “democracy forcing.” The court does not itself place any constitutional limits on what the president can do to combat al-Qaida. It (merely) (but profoundly) requires him to act in conformity with constitutional government by asking the people’s representatives to enact legislation that he believes—and can convince the country—to be necessary. 

Today’s decision has been criticized by conservatives on the court and by some off the court. But just as this is not a victory for terrorists, neither is it a defeat for conservatives, as many will come to realize. Placing the presidency back under the law will look quite different to critics when there is a president less to their liking in the White House. 

Yours,
Walter

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