Faithfully executing the laws: Internal legal constraints on executive power

UCLA Law Review

Volumn 54, Issue 6, 2007, Pages 1559-1611

  Johnsen, Dawn E ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 34948816783     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (246)

1. As James Madison wrote in The Federalist Papers, "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others." THE FEDERALIST NO. 51, at 267, 268 (James Madison) (George W. Carey 6k James McClellan eds., 2001). The constitutional structure affords the three branches-Madison's "departments"-considerable authority and means for checking each others' excesses and safeguarding their own powers against encroachment. Additional pressures come from outside the government: public opinion, American voters, advocacy organizations, foreign nations, and the press.
2. See, e.g., Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230 (2007);
3. Julian Ku & John C. Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 CONST. COMMENT. 179 (2006);
4. Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170 (2007). The Bush Administration has consistently urged the U.S. Supreme Court either to accord the President extreme deference or to refuse even to hear challenges to executive branch action on matters of national security.
5. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 527 (2004) (plurality opinion) (citing the government's brief urging extreme deference to the President's enemy combatant determinations in light of "[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making");
6. see also Alberto R. Gonzales, Att'y Gen., Remarks at the American Enterprise Institute (Jan. 17, 2007), available at http://www.uscourts. gov/newsroom/Gonzalez_11707.pdf ("[A] judge will never be in the best position to know what is in the national security interests of our country.").
7. See, e.g., BRUCE ACKERMAN, BEFORE THE NEXT ATTACK: PRESERVING CIVIL LIBERTIES IN AN AGE OF TERRORISM (2006);
8. David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis, 101 MICH. L. REV. 2565 (2003);
9. Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J. 1011 (2003);
10. William E. Scheuerman, Emergency Powers, 2 ANN. REV. L. & SOC. SCI. 257 (2006);
11. Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 WIS. L. REV. 273.
12. See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (holding that the Bush Administration's military tribunals violated applicable law and that Common Article 3 of the Geneva Conventions applies to al Qaeda, notwithstanding Bush's conclusion to the contrary);
13. Rasul v. Bush, 542 U.S. 466 (2004) (holding that, as the law was then, the writ of habeas corpus extended to the petitioner prisoners at Guantanamo);
14. Hamdi, 542 U.S. at 507 (plurality opinion) (holding that the government must provide a citizen it seeks to imprison as an "enemy combatant" with an opportunity to challenge the detention before a neutral decisionmaker).
15. 50 U.S.C. §§ 1801-1862 (2000 & Supp. II 2002);
16. see also U.S. Dep't of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President, 81 IND. L.J. 1374 (2006).
17. 18 U.S.C. §§ 2340-2340A (2000). Memorandum from Jay S. Bybee, Assistant Att'y Gen., Office of Legal Counsel, U.S. Dep't of Justice to Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002) [hereinafter Torture Opinion or Opinion], available at http://www.washingtonpost.com/wpsrv/nation/ documents/dojinterrogationmemo20020801.pdf.
18. See T.J. HALSTEAD, CONG. RESEARCH SERV. REPORT FOR CONG., PRESIDENTIAL SIGNING STATEMENTS: CONSTITUTIONAL AND INSTITUTIONAL IMPLICATIONS (2007);
19. Phillip J. Cooper, George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements, 35 PRES. STUD. Q. 515 (2005);
20. Charlie Savage, Bush Challenges Hundreds of Laws: President Cites Powers of His Office, BOSTON GLOBE, Apr. 30, 2006, at Al.
21. The Bush Administration sometimes declares a law unconstitutional and unenforceable to the extent it conflicts with the President's asserted constitutional authority, but more often the administration announces it will "interpret" the law-often inconsistently with the best reading of the text and legislative intent-to avoid a conflict with the administration's expansive view of the President's powers. For insightful discussions of the legitimacy of the executive branch's reliance on the constitutional avoidance doctrine, see Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189 (2006)
22. and H. Jefferson Powell, The Executive and the Avoidance Canon, 81 IND. L.J. 1313 (2006).
23. See Dana Priest 6k R. Jeffrey Smith, Memo Offered Justification for Use of Torture, WASH. POST, June 8, 2004, at A1.
24. See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at Al.
25. See Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, at A1.
26. See infra notes 45, 53, 54 and text accompanying note 53. On a related issue, the Department of Justice stood strong against President Bush and others in the White House on the legality of an early, apparently even more egregiously unlawful, version of the warrantless domestic surveillance program. Deputy Attorney General James Comey and the rest of the Department's top leadership stood firm, unwilling to approve the program even when then-Counsel to the President Alberto Gonzales sought to pressure a critically ill Attorney General John Ashcroft into approving the program. See Dan Eggan & Paul Kane, Gonzales Hospital Episode Detailed, WASH. POST, May 16, 2007, at A1.
27. See Torture Opinion, supra note 6.
28. Pub. L No. 109-148, 119 Stat. 2739 (2005) (to be codified in scattered sections of 10, 28, and 42 U.S.C).
29. Pub. L. No. 109-366, 120 Stat. 2600 (2006) (to be codified in scattered sections of 10, 18, 28 and 42 U.S.C).
30. That is, unless or until the Supreme Court rules that the Military Commissions Act of 2006 (MCA) violates a constitutional right to habeas corpus. See Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert, granted, 2007 WL 1954132 (June 29, 2007) (No. 06-1195) (holding that the detainees at the Guantanamo Bay military prison possess no right to petition fot a writ of habeas corpus and suggesting that they possess no rights under the U.S. Constitution).
31. WALTER E. DELLINGER, DAWN JOHNSEN ET AL., PRINCIPLES TO GUIDE THE OFFICE OF LEGAL COUNSEL (2004) [hereinafter GUIDELINES], reprinted in 54 UCLA L. REV. 1559 app. 2.
32. See Philip Carter, The Rood to Abu Ghroib, WASH. MONTHLY, Nov. 2004, at 25.
33. 18 U.S.C. §§ 2340-2340A (2000).
34. Torture Opinion, supra note 6.
35. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Dec. 10, 1984, S. TREATY DOC. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987) [hereinafter Convention Against Torture].
36. George W. Bush, President, Remarks on Iraq and the War on Terror at the U.S. Army War College, Carlisle, Pennsylvania (May 24, 2004), in 40 WEEKLY COMP. PRES. DOC. 944, 947 (2004).
37. Nine soldiers have been convicted for their role in the Abu Ghraib prison abuses. See The Abu Ghraib Files: Prosecutions and Convictions, SALON, Mar. 14, 2006, http://www.salon.com/news/abu_ghraib/2006/03/14/ prosecutions_convictions/index.html.
38. For a fascinating and detailed account of the development of the Bush Administration's interrogation policy, see Jane Mayer, The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees Was Thwarted, THE NEW YORKER, Feb. 27, 2006, at 32.
39. For an outstanding compilation of posts on the Torture Opinion and related issues, see Postings of Jack Balkin, Martin Lederman et al. to Balkinization, The Anti-Torture Memos: Balkinization Posts on Civil Liberties, the War on Terror and Presidential Power, http://balkin.blogspot.com/2006/12/ anti-torture-memos.html (Dec. 22, 2006) [hereinafter The Anti-Torture Memos]. Academic scholars have been critical of the Torture Opinion since the time of its release. See Adam Liptak, Legal Scholars Criticize Memos on Torture, N.Y. TIMES, June 25, 2004, at A14. The literature addressing the Opinion and its consequences is voluminous.
40. See, e.g., David Luban, Liberalism, Torture, and the Ticking Bomb, 91 VA. L. REV. 1425 (2005);
41. Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681 (2005);
42. W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 CORNELL L. REV. 67 (2005);
43. Symposium, War, Terrorism and Torture: Limits on Presidential Power for the Twenty-First Century, 81 IND. L.J. 1355 (2006).
44. Torture Opinion, supra note 6, at 13.
45. Id. at 19.
46. Id. at 1.
47. Id. at 3-4.
48. Id. at 35.
49. Harold Hongju Koh, Can the President Be Torturer in Chief?, 81 IND L.J. 1145 (2006).
50. Among the congressional war powers the Opinion fails to acknowledge are the authority to make rules for the government and regulation of the land and naval forces, U.S. CONST. art. I, § 8, cl. 14; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water, id. at cl. 11; and to define and punish piracies and felonies committed on the high seas and offenses against the law of nations, id. at cl. 10.
51. 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
52. Torture Opinion, supra note 6, at 41.
53. Id. at 39-46.
54. 10 U.S.C. § 801 (2000).
55. Id. § 893.
56. Convention Against Torture, supra note 20.
57. Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III].
58. Id.
59. 18 U.S.C. § 2441 (2000). The MCA subsequently limited the War Crimes Act in this regard. See supra notes 14-15 and accompanying text.
60. See The Anti-Torture Memos, supra note 24.
61. See Posting of Marty Lederman to Balkinization, Understanding the OLC Torture Memos (Part II), http://balkin.blogspot.com/2005/01/understanding- olc-torture-memos-part.html (Jan. 8, 2005);
62. Posting of Marty Lederman to Balkinization, Understanding the OLC Torture Memos (Part III), http://balkin.blogspot.com/2005/01/understanding-olc-torture- memos-part_07.html (Jan. 8, 2005).
63. Memorandum from President George W. Bush to Vice President Dick Cheney et al., Humane Treatment of al Qaeda and Taliban Detainees, (Feb. 7, 2002) [hereinafter Bush Memo Re: Treatment of al Qaeda], available at http://www.gwu.edu/%7Ensarchiv/NSAEBB/NSAEBB127/02.02.07.pdf.
64. Michael A. Fletcher, Bush Defends CIA's Clandestine Prisons, WASH. POST, Nov. 8, 2005, at A15;
65. Glenn Kessler, Rice Defends Tactics Used Against Suspects, WASH. POST, Dec. 6, 2005, at Al;
66. Eric Schmitt, Senate Moves to Protect Military Prisoners Despite Veto Threat, N.Y. TIMES, Oct. 6, 2005, at A22;
67. see also Posting of Marty Lederman to Balkinization, Judge Gonzales' Senate Responses, http://balkin.blogspot.com/2005/01/judge-gonzales- senateresponses.html (Jan. 18, 2005).
68. President Bush declared: "America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture ... in all territory under our jurisdiction. ... Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere." George W. Bush, President, Statement on United Nations International Day in Support of Victims of Torture (June 26, 2004), in 40 WEEKLY COMP. PRES. DOC. 1167, 1167-68 (2004). The press has reported that even prior to the leak, a new head of the Office of Legal Counsel (OLC), Jack Goldsmith, took a more moderate view of presidential power and initiated a review of OLCs prior counterterrorism advice.
69. See Michael Isikoff & Evan Thomas, Bush's Monica Problem: The Gonzales Mess, NEWSWEEK, June 4, 2007;
70. Daniel Klaidman et al., Domestic Spying: Bush Appointees Revolt, NEWSWEEK, Feb. 6, 2006.
71. Bush Memo Re: Treatment of al Qaeda, supra note 43.
72. Carol D. Leonig & Eric Rich, U.S. Seeks Silence on CIA Prisons, WASH. POST, Nov. 4, 2006, at A1.
73. Brian Ross & Richard Esposito, CIA's Harsh Interrogation Techniques Described, ABC News, Nov. 18, 2005, http://abcnews.go.com/WNT/ Investigation/story?id=1322866 ("The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.").
74. Id.
75. The U.S. government not only has engaged directly in inhumane interrogations of suspected terrorists, it also has deported suspected terrorists for questioning to countries known to engage in torture and other cruel and inhumane practices in a program known as "extraordinary renditions." See Charkaoui v. Canada (Citizenship 6k Immigration), 2007 SCC 9, 29-30, [2007] S.C.J. No. 9 QUICKLAW (Feb. 23, 2007);
76. Ian Austen, Canada Will Pay $9.75 Million to Man Sent to Syria and Tortured, N.Y. TIMES, Jan. 27, 2007, at A5;
77. Jane Mayer, Outsourcing Torture, THE NEW YORKER, Feb. 14, 2005, at 106;
78. Testimony Is Said to Implicate C.I.A. in Seizure of Suspect in Italy, N.Y. TIMES, Feb. 16, 2007, at A5. But see Interview of the Vice President by Scott Hennen, WDAY at Radio Day at the White House (Oct. 24, 2006), available at http://www.whitehouse.gov/news/releases/ 2006/10/20061024-7.html (Vice President Cheney suggested in a radio interview that waterboarding is a "no-brainer" and does not constitute torture).
79. Memorandum from General Counsel William J. Haynes, II to Secretary of Defense Donald Rumsfeld, Counter-Resistance Techniques, (Nov. 27, 2002) (signed "approved" Dec. 2, 2002), available at http://www.gwu.edu/-nsarchiv/ NSAEBB/NSAEBB127/02.12.02.pdf.
80. DEP'T OF DER, WORKING GROUP REPORT ON DETAINEE INTERROGATIONS IN THE GLOBAL WAR ON TERRORISM: ASSESSMENT OF LEGAL, HISTORICAL, POLICY, AND OPERATIONAL CONSIDERATIONS (Apr. 4, 2003) [hereinafter DOD WORKING GROUP REPORT], available at http://www.gwu.edu/ ~nsarchiv/NSAEBB/NSAEBB127/03.04.04.pdf.
81. See Mayer, supra note 23 (describing internal opposition to the Torture Opinion and the Bush Administration's severe interrogation policies and practices, highlighting the early and consistent opposition of U.S. Navy General Counsel Alberto Mora);
82. Josh White, Military Lawyers Fought Policy on Interrogations, WASH. POST, July 15, 2005, at A1 (also discussing internal opposition).
83. Although the March 14, 2003 OLC opinion remains secret, the working group report reveals its existence. See DOD WORKING GROUP REPORT, supra note 52. Secretary Donald Rumsfeld issued a more moderate memorandum on April 16, 2004 that approved twenty-four of the thirty-five techniques identified by the working group. Memorandum from Secretary of Defense Donald Rumsfeld to the Commander, U.S. Southern Command (Apr. 16, 2004). Newsweek has reported that in December 2003, a new assistant attorney general for OLC, Jack Goldsmith, informed the Department of Defense (DOD) that it had reconsidered the March 2003 opinion and DOD could no longer rely upon it. Klaidman, supra note 45.
84. Memorandum from Daniel Levin, Acting Assistant Att'y Gen. Office of Legal Counsel, U.S. Dep't of Justice to James B. Comey, Deputy Att'y Gen., Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004) [hereinafter Replacement Opinion], available at http://www.usdoj.gov/olc/ 18usc23402340a2.htm.
85. id. at 1.
86. Id. at 2 n.6 (citing, for example, the Geneva Conventions, the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., the Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261-3267, and the War Crimes Act, 18 U.S.C. § 2441).
87. Id. at 17.
88. See sources cited supra notes 5, 7.
89. Replacement Opinion, supra note 55, at 2 n.8.
90. Pub. L. No. 109-148, 119 Stat. 2739 (2005) (to be codified in scattered sections of 10, 28, and 42 U.S.C).
91. Id. § 1003 (to be codified at 42 U.S.C. § 2000dd).
92. See Schmitt, supra note 44.
93. Id.
94. Detainee Treatment Act of 2005 (DTA), § 1004(a), 119 Stat, at 2739 (to be codified at 42 U.S.C § 2000dd).
95. Id. § 1005(a), (e) (to be codified at 10 U.S.C. § 801 and 28 U.S.C. § 2241). The DTA defines "cruel, inhuman, or degrading treatment" narrowly, as limited to what the Due Process Clause would prohibit, which is a "shocks the conscience" standard.
96. Id. § 1003(d) (to be codified at 42 U.S.C § 2000dd). It also establishes an exclusive review process that includes an appeal to the D.C Circuit, but only for challenges related to the determination of the status of the alien being detained.
97. Id. § 1005(e) (to be codified at 28 U.S.C. § 2241).
98. George W. Bush, President, Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (Dec. 30, 2005), in 41 WEEKLY COMP. PRES. DOC. 1918, 1919 ("The executive branch shall construe [the provision] relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power ....").
99. 126 S. Ct. 2749 (2006).
100. Id. at 2764.
101. Geneva Convention III, supra note 38.
102. Hamdan, 126 S. Ct. at 2795-96.
103. Id.
104. Pub. L. No. 109-366, 120 Stat. 2600 (2006) (to be codified in scattered sections of 10, 18, 28, and 42 U.S.C).
105. Id. § 6(b)(1) (to be codified at 18 U.S.C. § 2441).
106. Id. § 6(c) (to be codified at 42 U.S.C. § 2000dd-0).
107. Id. § 6(a)(3) (to be codified at 18 U.S.C. § 2441).
108. Id. § 7(a)-(b) (to be codified at 28 U.S.C. § 2241(e)(1)-(2), (nt)).
109. Id. § 5 (to be codified at 28 U.S.C. § 2241 (nt)).
110. Id. § 3 (to be codified at 10 U.S.C. § 948r).
111. Scott Shane 6k Adam Liptak, News Analysis: Shifting Power to a President, N.Y. TIMES, Sept. 30, 2006, at A1.
112. See Editorial, Guilty Until Confirmed Guilty, N.Y. TIMES, Oct. 15, 2006, at A11 (describing the MCA's utter lack of remedies and external checks, and concluding that "[e]ven if our system were based on that sort of personal power and not the rule of law, it would be hard to trust the judgment of a president and an administration whose records are so bad").
113. The Constitution provides that the President must take an oath to "preserve, protect and defend the Constitution." U.S. CONST, art. II, § 1, cl. 8.
114. Id. art. II, § 3. The President's responsibility to uphold the rule of law through the supervision of all who exercise executive authority would be apparent even if not made explicit in the Take Care Clause.
115. OLC lawyers are usually extraordinarily well credentialed; among those who have served as assistant attorneys general leading OLC are Justice Scalia, former Chief Justice Rehnquist, and other prominent lawyers, judges, and legal academics.
116. Exec. Order No. 12,146, 3 C.F.R. 409, 411 (1980);
117. see also 28 C.F.R. § 0.25 (2006) (delineating the responsibilities delegated by the attorney general to OLC).
118. The literature on executive branch legal interpretation is vast and expanding, including scholarship regarding the standards that should govern OLC as it informs the legality of executive action. See, e.g., Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, LAW & CONTEMP. PROBS., Summer 2004, at 105;
119. Morrison, supra note 7;
120. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective From the Office of Legal Counsel, 52 ADMIN. L. REV. 1303 (2000);
121. Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676 (2005);
122. Symposium, Executive Branch Interpretation of the Law, 15 CARDOZO L REV. 21 (1993). My descriptions of the work of OLC are supported by these publications and further are based on my experience serving in that office from 1993 to 1998, first as deputy assistant attorney general and then as acting assistant attorney general heading OLC
123. GUIDELINES, supra note 16, app. 2 at 1603.
124. The memorandum that accompanied the transmittal of the statement to the attorney general explained that it was prompted in part by concerns about the Torture Opinion. Memorandum from Walter Dellinger, Dawn Johnsen et al. to John Ashcroft, Att'y Gen., et al. (Dec. 21, 2004)
125. reprinted in 54 UCLA L REV. 1559 app. 1.
126. Harold Hongju Koh has gone as far as to testify before the U.S. Congress: "[I]n my professional opinion, the August 1, 2002 OLC Memorandum is perhaps the most clearly erroneous legal opinion I have ever read." Confirmation Hearing on the Nomination of Alberto R. Gonzales to Be Attorney General of the United States Before the S. Comm. on the Judiciary, 109th Cong. 158 (2005) (statement of Harold Hongju Koh, Dean, Yale Law School).
127. See, e.g., Wendel, supra note 24, at 120 ("Some measure of aggressiveness is permissible in litigation because of the checking mechanisms built into the adversary system....Similarly, certain kinds of administrative proceedings... are accompanied by procedural checks....In transactional representation, however, these checks and balances are absent, and the lawyer in effect assumes the role of judge and legislator with respect to her client's legal entitlements."). Wendel cites the Model Rules of Professional Conduct for support, in particular its statements that lawyers shall not "take positions that lack an adequate basis in law and fact," "knowingly fail to disclose adverse authority," or "knowingly make misstatements of fact." Id. at 120 n.199 (citing MODEL RULES OF PROF'L CONDUCT R. 3.1, R. 3.3(a)(2) & R. 3.3(a)(1) (1980)).
128. Cf. Nelson Lund, The President as Client and the Ethics of the President's Lawyer, LAW & CONTEMP. PROBS., Winter/Spring 1998, at 65, 80 ("For some government lawyers, especially the political appointees in the Department of Justice and the White House, the ordinary rules of professional ethics are not so useful. The genuinely difficult questions about right and wrong that they're most likely to face ... are inevitably going to be resolved, not by professional ethics, but by personal standards of integrity and by ... bargaining with their appointing official, the President.").
129. GUIDELINES, supra note 16, app. 2 at 1604.
130. Id.
131. The principle that the rule of law should constrain the President is virtually universally accepted, albeit not invariably followed. Perhaps the most infamous statement to the contrary came in a 1977 interview of President Nixon about the Watergate scandal. David Frost said to Nixon, "[s]o what in a sense you're saying is that there are certain situations... where the president can decide that it's in the best interests of the nation or something, and do something illegal." Nixon responded, "[w]hen the President does it that means that it is not illegal." Interview by David Frost with Richard Nixon (May 19, 1977), reprinted in N.Y. TIMES, May 20, 1977, at A16. This remarkable deviation does not undermine the principle, given that the statement typically evokes incredulity and its source was a President forced to resign in disgrace for unlawful acts.
132. GUIDELINES, supra note 16, app. 2 at 1604.
133. Id.
134. A leading constitutional law casebook begins very effectively by detailing how Washington and others wrestled with the constitutionality of a national bank. See PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING (2006).
135. See Robert H. Jackson, A Presidential Legal Opinion, 66 HARV. L. REV. 1353 (1953).
136. Former Assistant Attorney General Randolph Moss, who served in OLC under President Clinton, put it well: [I]f the Constitution and relevant statutes are best construed to preclude a proposed policy or action, it is largely irrelevant whether a reasonable argument might be made in favor of the legality of the proposal.... A reasonable argument might diminish the political costs of the contemplated action and it might avoid embarrassment in the courts, but it cannot provide the authority to act. Only the best view of the law can do that. Moss, supra note 86, at 1316. The determination that Presidents should act upon the "best" view of the law, though, leaves open what is meant by the "best" interpretation-notably, to what extent the executive appropriately may act upon legal interpretations that differ from those of the Supreme Court. The question of executive interpretive independence is the subject of some dispute and is discussed in the next Subpart.
137. See, e.g., Confirmation Hearing on the Nomination of Alberto R. Gonzales to Be Attorney General of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 229 (2005) (written responses of Alberto Gonzalez to questions from Senator Russell D, Feingold) ("I completely agree that it is, and has always been, the duty and function of the Office of Legal Counsel to provide the President and the Executive Branch with an accurate and honest analysis of the law, even if that analysis would constrain the pursuit of policy goals. If confirmed as Attorney General, I would work with the Assistant Attorney General for the Office of Legal Counsel to ensure that OLC continues to employ the practices necessary to meet the highest standards of legal analysis.");
138. Confirmation Hearing on the Nomination of Timothy Elliott Flanigan to Be Deputy Attorney General: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 120 (2005) (written responses of Timothy Flanigan to questions from Senator Edward M. Kennedy) ("I have reviewed generally the [Guidelines] and agree with much of the document. I believe that the document reflects operating principles that have long guided OLC in both Republican and Democratic administrations.");
139. Confirmation Hearings on Federal Appointments: Hearings Before the S. Comm. on the Judiciary, 109th Cong. 766 (2005) (written responses of Steven Bradbury to questions from Senator Patrick Leahy) ("The [Guidelines] generally reflect operating principles that have long guided OLC in both Republican and Democratic administrations.").
140. John McGinnis's writings suggest some of the most thoughtful alternatives to this view. He has described three interpretive models for OLC: "court-centered" and "independent authority," both of which can be viewed as variations on the "best, accurate" stance but that allow for different degrees of executive interpretive independence, and "situational," which "would not be concerned with expounding a consistent and principled jurisprudence ... but with using any plausible principles to achieve the policy goal desired by his client." John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 CARDOZO L. REV. 375, 377, 403 (1993).
141. McGinnis described all three models as "plausible." Id. at 377.
142. Elsewhere, McGinnis considered the value of any search for fixed constitutional meaning with specific regard to decisions about whether the use of military force requires congressional authorization. He argued that, in this context, the President and Congress are best restrained not by "rule centrism"-which involves a search for a fixed and determinate meaning of the War Powers Clause-but by "a form of spontaneous order-the result of accommodations and implicit bargaining between the branches." John O. McGinnis, The Spontaneous Order of War Powers, 47 CASE W. RES. L. REV. 1317, 1317-18 (1997).
143. See, e.g., Michael Hirsh et al., A Tortured Debate, NEWSWEEK, June 21, 2004, at 50 (reporting that the Torture Opinion was drafted by John Yoo);
144. A1 Kamen, Taking Terrorism Law on the Road, WASH. POST, Feb. 24, 2006, at A13 (describing Yoo as the "author of the famous Torture Memo").
145. In a July 19, 2005 interview with the PBS documentary series Frontline, Yoo described his view of OLCs role in the context of discussing the Torture Opinion: I think the role is, what does the law say that applies to interrogation of enemy aliens with whom we're at war? And the primary statute is the [1994] torture statute. And the question is, what does a statute mean? At the Justice Department, I think it's very important not to put in an opinion interpreting a law on what you think the right thing to do is, because I think you don't want to bias the legal advice with these other considerations. Otherwise, I think people will question the validity of the legal advice. They'll say, "Well, the reason they reached that result is that they had certain moral views or certain policy goals they wanted to achieve." And actually I think at the Justice Department and this office, there's a long tradition of keeping the law and policy separate. The department is there to interpret the law so that people who make policy know the rules of the game, but you're not telling them what plays to call, essentially. Frontline, The Torture Question (PBS television broadcast July 19, 2005), available at http://www.pbs.org/wgbh/pages/frontline/torture/interviews/yoo.html.
146. For example, in support of its definition of torture, the opinion relies on statutes that define emergency medical condition for the purpose of providing health benefits - which the opinion acknowledges is "a substantially different subject"-but it ignores relevant federal cases and regulations that actually address the meaning of torture. For more detailed criticisms of the Torture Opinion's reasoning, see sources cited supra note 24.
147. Anthony Lewis, Making Torture Legal, N.Y. REV. BOOKS, July 15, 2004, at 4.
148. JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR 169 (2006). Yoo argues that the initial Torture Opinion was superior to its replacement, which he describes as "a disservice to the personnel, especially those in the field, who had to rely on the Justice Department's advice to take risks in fighting the war on terrorism."
149. Id. at 171.
150. "The second opinion not only retracted the bright lines the 2002 memo attempted to draw, replacing them with vague language that gave less offense, it provided much less guidance or clarity." Id. Adrian Vermeule and Eric Posner are among the handful of scholars who defended the Opinion, but they defended it not on the merits, but rather on the grounds that "the memorandum's arguments are standard lawyerly fare, routine stuff from an office "whose jurisprudence has traditionally been highly pro-executive."
151. Adrian Vermeule Si Eric A. Posner, A 'Torture' Memo and Its Tortuous Critics, WALL ST. J., July 6, 2004, at A22. Regarding the merits, they write that the Opinion's conclusion "may be right or wrong-and we, too, would have preferred more analysis of this point-but it falls within the bounds of professionally respectable argument."
152. Id. They thus apparently disagree with the Guidelines' first principle.
153. Tim Golden, After Terror, A Secret Rewriting of Military Law, N.Y. TIMES, Oct. 24, 2004;
154. see also Deborah Sontag, Terror Suspect's Path From Streets to Brig, N.Y. TIMES, Apr. 25, 2004 ("'The president's response from 9/11 forward was to use every power and means at his disposal to try to prevent another attack,' said Brad Berenson, a former associate White House counsel.").
155. Torture Opinion, supra note 6, at 39.
156. U.S. CONST, art. I, § 8, cl. 11.
157. Id. at cl. 14.
158. 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
159. YOO, supra note 106, at 2.
160. Replacement Opinion, supra note 55, at 2.
161. See sources cited supra notes 5, 7.
162. GUIDELINES, supra note 16, app. 2 at 1606.
163. Id.
164. See Pillard, supra note 86, at 687-98.
165. Id.
166. Chevron v. NRDC, 467 U.S. 837 (1984).
167. See Pub. L No. 109-148, 119 Stat. 2739 (2005);
168. Pub. L No. 109-366, 120 Stat. 2600 (2006).
169. GUIDELINES, supra note 16, app. 2 at 1605.
170. Id. at 1606. Extensive academic writings address the issue of extrajudicial constitutional interpretation, and in recent years growing numbers of scholars have extolled the virtues of political branch interpretive independence and involvement in the development of constitutional understandings.
171. See, e.g., Johnsen, supra note 86, at 108 n.15, 110-112 6k nn.18-33, 114 n.36 (discussing participants in this debate over extrajudicial constitutionalism);
172. Pillard, supra note 86, at 678-679 6k nn.3-10 (same). Nina Pillard persuasively cautioned that, although the promise of extrajudicial constitutionalism is theoretically attractive, the literature to date inadequately considers the political branches' actual practices. Pillard's analysis helped fill that gap and led her to conclude that, especially with regard to the protection of individual rights, the executive branch "has failed fully to meet the challenges of interpreting and applying the Constitution on its own."
173. Pillard, supra note 86, at 677. In the same spirit as the Guidelines and this Article's elaboration on the Guidelines, Pillard followed her critique with suggestions for reform to foster principled executive branch legal interpretation.
174. Id. at 743-58.
175. See Chevron, 467 U.S. at 844.
176. The appropriate approach to providing legal advice within the executive branch regarding an agency regulation that might warrant Chevron deference if reviewed by a court thus depends on a variety of factors including the vagueness of the statute, the extent to which Congress delegated authority to the relevant agency to fill legislative gaps, the agency's expertise, and the administration's policy agenda.
177. See H. JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL (1999);
178. H. Jefferson Powell, The President's Authority Over Foreign Affairs: An Executive Branch Perspective, 67 GEO. WASH. L REV. 527 (1999).
179. 60 U.S. (19 How.) 393 (1856).
180. For discussion of these and other examples, with citations, see Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, LAW 6k CONTEMP. PROBS., Winter/Spring 2000, at 7, 19-21 [hereinafter Johnsen, Presidential Non-Enforcement];
181. Dawn E. Johnsen, Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change, 78 IND. L.J. 363, 370-77, 383-99 (2003) [hereinafter Johnsen, Reagan and the Rehnquist Court].
182. GUIDELINES, supra note 16, app. 2 at 1606;
183. see Johnsen, supra note 86, at 120-34.
184. Former Acting Solicitor General and Assistant Attorney General for OLC Walter Dellinger has also written of the need for OLC lawyers to express not merely their own constitutional views but "to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions." Walter Dellinger, After the Cold War: Presidential Power and the Use of Military Force, 50 U. MIAMI. L. REV. 107 (1995).
185. See Johnsen, Reagan and the Rehrujuist Court, supra note 127, at 383-99.
186. The President and the attorney general may call upon OLC for assistance in any of mese contexts. This Article discusses OLCs core function of providing accurate legal advice to inform contemplated presidential or other executive branch action. As the Guidelines note, OLCs work may also involve other functions and the appropriate interpretive stance might vary accordingly. See GUIDELINES, supra note 16, app. 2 at 1610 ("OLC sometimes provides legal advice that is not intended to inform the formulation of executive branch policy or action, and in some such circumstances an advocacy model may be appropriate."). To take one common example, OLC at times assists the solicitor general and other Department of Justice litigating divisions in developing the government's litigating position. When defending acts of Congress, the Department of Justice typically offers courts all reasonable arguments in their defense-even arguments that do not represent the best view of the law. Courts expect the government to take this stance.
187. See Seth P. Waxman, Defending Congress, 79 NC. L REV. 1073 (2001). OLCs advice in this context is not binding on others in the executive branch and may reflect the Department's traditional role as an advocate for the constitutionality of federal legislation. Whatever function it serves, OLC should always articulate precisely the nature of its advice: "OLC should be clear whenever it intends its advice to fall outside of OLCs typical role as the source of legal determinations that are binding within the executive branch." GUIDELINES, supra note 16, app. 2 at 1610. "Client agencies expect OLC to provide its best view of applicable legal constraints and if OLC acts otherwise without adequate warning, it risks prompting unlawful executive branch action." Id.
188. AM. BAR ASS'N, TASK FORCE ON PRESIDENTIAL SIGNING STATEMENTS AND THE SEPARATION OF POWERS DOCTRINE (2006), http://www.abanet.org/op/signingstatements/ aba_final_signing_statements_recommendation-report_7-24-06.pdf.
189. See Posting of David Barron, Dawn Johnsen et al. to Georgetown Law Faculty Blog, Untangling the Debate on Presidential Signing Statements, (July 31, 2006), http://gulcfac.typepad.com/georgetown_university_law/2006/07/ thanks_to_the_p.html.
190. In its classic statement of the avoidance canon, the Supreme Court wrote that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such a construction is plainly contrary to the intent of Congress." Edward J. DeBartolo Corp. v. FIa. Gulf Coast Bldg. 6k Constr. Trades Council, 485 U.S. 568, 575 (1988). Trevor Morrison and H. Jefferson Powell both have taised questions of great practical importance and theoretical interest about whether the executive branch should continue in this way to aggrandize executive power through what at least at times constitutes a misuse of the judicial canon of constitutional avoidance.
191. See Morrison, supra note 7;
192. Powell, supra note 7. Morrison does not reach a definitive conclusion, but he thoroughly discusses the relevant considerations and he details the Bush Administration's abuses of the canon.
193. See generally Morrison, supra note 7. Powell concludes that, due to the demonstrated high risk of abuse, the executive branch should never use the avoidance canon "when the issue involves the Commander-in-Chief power or other questions about the separation of powers between Congress and the President."
194. Powell, supra note 7, at 1315.
195. I have written previously in greater detail on the President's authority and responsibility with regard to unconstitutional statutes. See Johnsen, Presidential Non-Enforcement, supra note 127.
196. For other views, see, for example, David Barron, Constitutionalism in the Shadow of Doctrine: The President's Non-Enforcement Power, LAW & CONTEMP. PROBS., Winter/Spring 2000, at 61;
197. Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905 (1990);
198. Christopher N. May, Presidential Defiance of " Unconstitutional" Laws: Reviving the Royal Prerogative, 21 HASTINGS CONST. L.Q. 865 (1994);
199. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994).
200. 462 U.S. 919 (1983). The Chadha Court acknowledged the presidential practice of signing multiprovision legislation despite the presence of constitutionally objectionable provisions. Id. at 942 n.13.
201. The Court cited as an example President Franklin Roosevelt's decision to sign the Lend-Lease Act of 1941, due to the exigencies of World War II, despite the law's inclusion of an unconstitutional provision. Id.
202. Well in advance of the Court's Chadha decision, Roosevelt concluded that a provision allowing Congress to terminate the law's authorization by concurrent resolution was unconstitutional. See id. ("[I]t is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds, For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was unconstitutional.");
203. see also Robert H. Jackson, A Presidential Legal Opinion, 66 HARV. L REV. 1353 (1953) (the attorney general memorandum memorializing Roosevelt's constitutional concerns).
204. See NEIL KINKOPF, SIGNING STATEMENTS AND THE PRESIDENT'S AUTHORITY TO REFUSE TO ENFORCE THE LAW 3-4, available at http://www.acslaw.org/files/Kinkopf-Signing%20Statements-Jun%202006- Advance%20Vol%201.pdf (last visited July 21, 2007) (noting that "Congress has enacted hundreds of legislative vetoes since Chadha, and not even members of Congress expect the President to veto such legislation or to enforce the patently unconstitutional legislative veto provisions").
205. Jefferson wrote to Abigail Adams of his decision to act on his own constitutional views, which were counter to several lower federal courts: [N]othing in the Constitution has given [judges]... a right to decide for the Executive, more than to the Executive to decide for them.... The judges, believing the law constitutional, had a right to pass sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution.
206. THE WORKS OF THOMAS JEFFERSON 311 (Paul Leicester Ford ed., G.P. Putnam's Sons 1897) (1905). Jefferson's refusal to enforce the statute occurred in a context in which the case in favor of nonenforcement authority is particularly strong because Presidents typically enjoy broad prosecutorial discretion.
207. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 276 (1964).
208. GUIDELINES, supra note 16, app. 2 at 1607.
209. The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. Off. Legal Counsel 55 (1980) (memorandum from Attorney General Benjamin R. Civiletti) [hereinafter 1980 Civiletti Memorandum].
210. See Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (1994) (memorandum from Assistant Attorney General Walter Dellinger);
211. 1980 Civiletti Memorandum, supra note 140. Under Presidents Ronald Reagan and George H. W. Bush, though, OLC at times has described presidential nonenforcement authority in far more sweeping terms. See Issues Raised by Provisions Directing Issuance of Official or Diplomatic Passports, 16 Op. Off. Legal Counsel 18 (1992) (memorandum from Acting Assistant Attorney General Timothy E. Flanigan) ;
212. Issues Raised by Foreign Relations Authorization Bill, 14 Op. Off. Legal Counsel 37 (1990) (memorandum from Assistant Attorney General William P. Ban); see also Johnsen, Presidential Non-Enforcement, supra note 127, at 44-52 (discussing prior executive branch practice and policy).
213. See Johnsen, Presidential Non-Enforcement, supra note 127 (evaluating the appropriate standards for nonenforcement and their application to President Clinton's decision to enforce, but to refuse to defend, a statute that required him to fire anyone in the military who tested HIV-positive).
214. See HALSTEAD, supra note 7;
215. Cooper, supra note 7;
216. Savage, supra note 7.
217. But see Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENTARY 307, 311 (2006) ("For the most part, the claims made in President Bush's signing Statements... are similar to the claims made by other recent presidents, such as President Clinton. In addition, there are other plausible explanations for the Bush administration's high number of challenges.").
218. Torture Opinion, supra note 6.
219. Commentators who advocate for a much broader scope of presidential nonenforcement authority typically argue that the Constitution is paramount among the laws the President must "take Care" to faithfully execute, and the President therefore must enforce the Constitution over an unconstitutional statute. As I have stated elsewhere, this formulation of the issue "begs a critical question: 'unconstitutional' in whose view?... When the executive and legislative branches disagree, and the judicial branch has not spoken, which branch's view of the Constitution should prevail?" Johnsen, Presidential Non-Enforcement, supra note 127, at 17.
220. "Whenever possible, agency requests should be in writing, should include the requesting agency's own best legal views as well as any relevant materials and information, and should be as specific as circumstances allow." GUIDELINES, supra note 16, app. 2 at 1608.
221. "Ordinarily OLC legal advice should be subject to multiple layers of scrutiny and approval; one such mechanism used effectively at times is a 'two deputy rule' that requires at least two supervising deputies to review and clear all OLC advice." Id. at 1609.
222. "OLC should maintain internal systems and practices to help ensure that OLCs legal advice is of the highest possible quality and represents the best possible view of the law." Id. at1608.
223. The President or attorney general also may call upon OLC to assist in other functions that may include advocacy. See supra note 130.
224. As the Guidelines state, "OLC can help promote public confidence and understanding by publicly announcing its general operating policies and procedures." GUIDELINES, supra note 16, app. 2 at 1609.
225. Id. at 1607.
226. Id.
227. Id.
228. Id. at 1608.
229. Id. This presumption in favor of confidentiality may be overcome by sufficiently weighty specific need.
230. The Government Accountability Office (GAO) has investigated whether President Bush actually had refused to enforce statutory provisions regarding which he had raised constitutional objections in signing statements. Memorandum from Gary Kepplinger, Gen. Counsel, GAO to Senators Robert C Byrd & John Conyers Jr., Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts (June 19, 2007), available at http://appropriations. senate.gov/News/ 2007_06_18_Text_of_GAO_Opinion_on_White_House_Signing_Statements.pdf. GAO found that Bush had not complied with six of the sample of nineteen provisions it had selected for its study. Id.
231. GUIDELINES, supra note 16, app. 2 at 1607.
232. Id.
233. Id.
234. See Morrison, supra note 7;
235. Trevor W. Morrison, Executive Branch Avoidance and the Need for Congressional Notification, SIDEBAR: ONLINE PUBL. COLUM. L. REV., Feb. 15, 2007, http://clrsidebat.org/essays/ executive-branch-avoidance.
236. GUIDELINES, supra note 16, app. 2 at 1609.
237. The Washington Post reported that the Torture Opinion was written with input from "a small group of conservative legal officials at the White House, the Justice Department and the Defense Department - and ... generally exclud[ed] potential dissenters." R. Jeffrey Smith & Dan Eggen, Gonzales Helped Set the Course for Detainees, WASH. POST, Jan. 5, 2005, at A1.
238. Replacement Opinion, supra note 55, at 2.
239. Jess Bravin, Interrogation Policy Proves Elusive, WALL ST. J., Dec. 13, 2004, at A4.
240. GUIDELINES, supra note 16, app. 2 at 1608.
241. See Ross 6k Esposito, supra note 48 (reporting that harsh methods were used beginning in March 2002;
242. the Torture Opinion was issued in August 2002). The Guidelines acknowledge that this problem may be unavoidable for some questions that involve continuing or recurring executive branch action. GUIDELINES, supra note 16, app. 2 at 1608.
243. Id. at 1609-10.
244. Id. at 1609 "Although OLCs legal determinations should not seek simply to legitimate the policy preferences of the administration of which it is a part, OLC must take account of the administration's goals and assist their accomplishment within the law."
245. Id.
246. See supra note 11.