At Slate. This is also something I wrote about in this academic paper (with Adam Cox). The Slate piece takes four minutes to read, Slate’s editors helpfully tell you. The academic version takes about nine hours.
I put together my thoughts at Slate. Incidentally, in the course of doing research for this piece, I ran across a large number of awfully confident claims that Obama’s decision to ask Congress for consent to use military force in Syria in 2013 meant that he, and possibly no other future president, could ever use military force unilaterally again. It did not take long for these claims to be falsified. All of the quotations below are taken from pieces written back in 2013.
Whatever happens with regard to Syria, the larger consequence of the president’s action will resonate for years. The president has made it highly unlikely that at any time during the remainder of his term he will be able to initiate military action without seeking congressional approval.
President Obama’s decision to seek authorization for military intervention in Syria is a watershed in the modern history of war powers…. The rest of the world can basically forget about the US going to military bat in these kinds of situations if congressional action is a precondition. This is a huge development with broad implications not just for separation of powers but for the global system generally.
In seeking congressional authorization, President Obama is thus re-submitting the modern presidency to the kind of “cycle of accountability,” to use Professor Griffin’s phrase, that the constitutional design anticipated. We will strike Syria, if at all, based on a joint determination by both elected branches that should nurture an ongoing sense of joint responsibility to monitor and assess in a careful way whatever consequences ensue.
In the NYT today I predicted that the President would be eating his words from the 2008 campaign trail to the effect that he needed congressional authorization for an intervention like the one planned for Syria. I was wrong, and I am very happy to say that I am now eating my words.
But not me.
President Obama’s surprise announcement that he will ask Congress for approval of a military attack on Syria is being hailed as a vindication of the rule of law and a revival of the central role of Congress in war-making, even by critics. But all of this is wrong. Far from breaking new legal ground, President Obama has reaffirmed the primacy of the executive in matters of war and peace.
His argument boils down to the following points.
1. The administration’s legal theory is based on a factual predicate that might be correct (“the recent ISIL attacks are not unrelated to the AQ design of 2001, but instead part and parcel of that enemy’s design: that ISIL considers itself ‘the true inheritor of Usama bin Laden’s legacy’”). “Not unrelated”!
2. The administration adopted a legal theory that was less bad than the one “everyone” (?) expected (“a newly aggressive understanding of the President’s unilateral constitutional power to initiate military operations”). Most important, this theory keeps the ultimate authority in Congress’ hands.
3. Congress and the public support the military operation anyway (“this is a case in which the public and both houses of Congress do overwhelmingly support the President’s contemplated use of air strikes against ISIL, in Iraq and in Syria, but in which the leadership of the House has informed the Administration that the chamber is almost certain not to vote on the operation, for reasons other than substantive disapproval ”).
In sum, “a masterstroke that deftly threaded the needle without disregarding congressional will.”
A masterstroke, indeed. Here are thoughts about each of the points:
1. The president always knows conditions that justify military operations better than the public and Congress does. These conditions include not only the threat to Americans in a direct sense (an ISIS-sponsored terrorist attack on U.S. soil), which is derived from secret intelligence, but all the intricate, semi-secret implications for the security of allies, the proliferation of weapons, the dissemination of violent ideology, and so on—and here, of course, U.S. information about the actual structure of ISIS and its connections with other groups. The key point is that while the truth may ultimately come out, it will come out too late to affect Congress’ and the public’s capacity to stop a war before it begins. No way to sue the president for damages or obtain injunctions if the facts turn out the other way. And wars rarely stop, as we know from very recent experience, when the factual predicates are shown to be false.
2. Given the sort of interpretive latitude that Lederman grants the president, and effective deference to the executive branch’s superior information, the practical difference between a statutory argument and an Article II argument is vanishingly small. If you don’t believe me, sit down and read executive-branch opinions (some of them issued by OLC, some not, and some of them proposed but not officially adopted) on Haiti, Bosnia, Kosovo, Libya, etc. Adopting a “narrow” interpretation, closely tied to the facts and existing statutory authorities, in order to avoid broad legal assertions is meaningful only if the limiting language in the earlier opinions actually block subsequent action (they don’t) and old statutes can be repealed (apparently, they can’t).
3. This is really a political argument, not a legal argument, but it is worth noting that in Lederman’s hand it becomes a precedent that justifies the use of military force when the public and Congress “really” supports it, whether or not Congress acts officially through its voting procedures. Another loophole to be widened in future iterations.
What of the claim that Congress can turn around and take away the president’s authority—the great virtue of a statutory approach? But this would mean assembling a veto-proof majority in both Houses—which is not going to happen. Indeed, the opposite is more likely to happen—as has happened before (above all, Kosovo): Congress will be constrained to “support the troops” and vote for the money they need to continue operations.
You might have noticed that Lederman loaded his post with qualifications (“if this factual predicate is true,” “if that claim is true,” a “tentative case,” etc.), which in fact enhances the effectiveness of his defense. Nothing defuses a thundering jeremiad against the abuse of presidential power like a lawyer’s modest “it’s complicated.”
Legal scholars are in a tizzy about the legal justification for the war on ISIS. Can’t the administration make up its mind? But Vermeule and I warned you years ago:
The main implication of this contrast is that crises in the administrative state tend to follow a similar pattern. In the first stage, there is an unanticipated event requiring immediate action. Executive and administrative officials will necessarily take responsibility for the front-line response; typically, when asked to cite their legal authority for doing so, they will either resort to vague claims of inherent power or will offer creative readings of old statutes.…
The overall picture of Congress’s role in emergency lawmaking, then, is as follows. Congress lacks motivation to act before the crisis, even if the crisis is in some sense predictable. Thus the initial administrative response will inevitably take place under old statutes of dubious relevance, or under vague emergency statutes that impose guidelines that the executive ignores and that Congress lacks the political will to enforce, or under claims of inherent executive authority. After the crisis is under way, the executive seeks a massive new delegation of authority and almost always obtains some or most of what it seeks, although with modifications of form and of degree. When Congress enacts such delegations, it is reacting to the crisis rather than anticipating it, and the consequence of delegation is just that the executive once again chooses the bulk of new policies for managing the crisis, but with clear statutory authority for doing so.
My latest (and, I hope, last) argument is at Slate. I respond to Douthat and Salam. My initial response to the Douthat column that got the ball rolling was at The New Republic. Both Douthat and Salam responded with ad hominem attacks (Salam later took his down). Douthat’s response is here (he thinks wrongly that Obama can’t reverse his policy, and he’s wrong to say that Obama is “legalizing” illegal immigrants); Salam’s two later responses are here and here.
I left out of my most recent piece for reasons of space one additional point that is worth making: it is wrong to claim that Obama has put into place (“de facto”) the path-to-citizenship law that Congress has refused to pass. Obama has no power to grant citizenship to anyone, and his enforcement authority expires with his term.
The Georgetown Journal of International Affairs has a brief interview of me on the topic of executive power.
Ilya says yes (based on what I think is an originalist or textualist interpretation of the Constitution), I say no. A few further comments/questions.
1. Assuming both presidents violated the Constitution, Ilya believes that Obama’s constitutional violations (Bergdahl, Libya) are more serious than Bush’s were (torture, surveillance). Although I said the opposite, I’m not sure. How does one measure the seriousness of a constitutional violation (as opposed to the unwisdom of the underlying action)? Bracketing the harm done by these actions, it seems to me that Bush’s would be harder to defend based on conventional legal reasoning (again, if you assume that the president has no authority to defy Congress), but I’m not sure why. Ilya also thinks Obama’s actions caused more harm to the nation than Bush’s did. I don’t know.
2. Ilya tells a story in which we learn over history that certain policies (torture, surveillance, prisoner exchanges, military interventions) are unwise or presumptively unwise. Congress incorporates this understanding into law. The president, because he is motivated by short-term political considerations, violates the law. This is why Congress should be given the power to control executive action. My view is nearly the opposite. To take one of many examples, I believe that Congress’ policy toward Guantanamo Bay reflects short-term political considerations. Or consider the debt limit conflict.
3. Ilya seems quite certain that the prisoner exchange was unwise as a matter of policy. Based on what? Prisoner exchanges (including exchanges with “terrorists”) have been routine throughout history. I believe that abandoning Bergdahl to his fate with the Taliban would have been a blow to national prestige and, I suspect, morale in the military. What would have been the political reaction if the Taliban had executed Bergdahl and then it leaked out that Obama had turned down an offer to make an exchange?
Judge Treu argues that job security rules in California violate the right to education because “über due process” for teachers threatened with dismissal makes it impossible to fire incompetent teachers. He might reflect on this problem. If a strict scrutiny test is now used to evaluate job security provisions, then henceforth students (and interest groups that use them as vehicles) can challenge every change in the rules–and, I suppose, not only changes to job security rules, but also to the curriculum and all other features of schooling. If a school district decides to reduce the number of music courses to make room for computer science, or vice versa, it will now have to show that the change is tailored to a compelling government interest. Raj Chetty will be dragged out again to show the effect of music or computer science on future income.
Or consider again job security. One of the reasons that employers–and not just public schools, but regular commercial firms, as well as universities and many private schools–offer job security is that employees value it so much. They’re willing to accept a lower salary in return for job security. The employer faces a tradeoff: it loses some ability to control employees, but it saves a lot of money, which it can use for other things. And so with the schools. If California is no longer allowed to offer job security, it will either need to pay teachers more (leaving less money to spend on students) or hire fewer teachers. Is that going to advance education? The court has no idea, indeed doesn’t seem to have given any thought to these issues.
The long and the short of it is that a judge is in no position to make these tradeoffs. If courts demand that schools justify reforms (to say nothing of existing rules) using a strict scrutiny test, seriously applied, schools will be frozen–afraid to make any changes lest they are sued by thousands of disappointed students (no doubt financed by interest groups) who claim that their right to education has been violated.
Vergara v. State of California. I do not believe that this case will be affirmed on appeal; or if it is, I believe that it will be distinguished away to oblivion. Courts have had nothing but trouble trying to enforce “social rights” like the right to an education where those rights exist (in states like California, and in many foreign countries), and generally give up. To see why, consider Judge Treu’s holding that the two year probation period for new teachers results in discrimination against low-income and minority students who end up being stuck with grossly incompetent teachers whose incompetence could not be detected in such a short period. Yet he says that a 3-5 year period–which exists in most other states–would be adequate. Yet is there any evidence that a three to five year period rather than a two year period will enable authorities to screen out grossly incompetent teachers? None that the court cites. Nor does the court consider the benefits of a short period–that it might attract teachers who may otherwise go elsewhere (such as private schools).
Or consider his argument that the last-in-first-out rule (junior teachers are fired before senior teachers if layoffs are necessary) discriminates against low-income and minority students. LIFO systems are common in private industry, probably because, despite its defects, it rewards people who invest in the firm. Moreover, people value job security; if you don’t give it to them, you need to pay them more. The court does not provide any serious analysis of the benefits and cost of this system compared to realistic alternatives.
Finally, if, as the court says, these rules discriminate against low-income and minority students because school authorities funnel the grossly incompetent teachers whom they can’t fire to the weakest schools, isn’t the proper remedy to forbid this behavior directly? The court is never very clear whether it is enforcing a right to education (meaning a right not to be taught by a grossly incompetent teacher) or a right not to be discriminated against (a right not to be taught by a grossly incompetent teacher because you are a minority or are poor).
I don’t think that the California courts want to get into the business of running the public schools.
Yes, says Jack Goldsmith in a comment on Kinsley’s review of Greenwald’s book on Snowden:
I think Kinsley is also wrong about the normative question of who should decide. The government should not have the final say about which of its secrets is published. Government action undisclosable to the American public is presumptively illegitimate. We tolerate secrecy to some degree because it is necessary for national security.
But in a constitutional democracy where the People ultimately rule, secrecy from the People is aberrant (for they cannot govern what they do not know), and it demands special justification (thus the presumption against its legitimacy).
All of this sounds like it must be right until you think about it for more than a few seconds. In fact, government secrecy is pervasive, and it goes well beyond national security.
For example, the government’s records about everyone’s finances, collected by the IRS and other agencies, are secret. So are medical records for people in Medicaid, Medicare, and the VA hospital system. Employment files for millions of federal employees including military personnel–secret. Public school teachers’ evaluations of our children–secret. Social workers’ judgments about clients–secret. Deliberations of government officials–regulators, legislators, judges–secret. Evidence gathered in criminal investigations never used at trial–secret. Trade secrets and other private information collected by courts and regulators–secret. Algorithms and policies used to decide who to audit and investigate, where to set up roadblocks or hide plain-clothes police officers–secret. Security arrangements in government facilities–secret.
All of this secrecy requires a “special justification,” of course. But so does disclosure. If the government discloses my financial records to The New York Times, it will be asked to provide a justification. Everything the government does needs a (“special”) justification.
Now, to be sure, there are varying levels of secrecy. Sometimes secrets can be discovered through litigation; sometimes they are disclosed for policy purposes; sometimes they are disclosed as a matter of course after the passage of time. Indeed, government secrecy is almost always temporary–sometimes lasting only weeks or months, sometimes lasting years. But as a matter of practice as well as formal law, most of what the government does is secret for the period of time during which it matters, and we seem quite comfortable with that fact.
How can the people “rule” when so much of what the government does is secret? There are several answers. One is that the people can make rough judgments about overall outcomes–the healthiness of the economy, the existence of war, etc.–and cast their votes on the basis of those judgments, without knowing the details of government action that produced them. Another is that because the government is itself composed of people, and those people are autonomous, secret actions that are highly controversial or objectionable are likely to be leaked, or even blocked before they are put into place. A third is that review systems are set up within government. Whether or not the right balance has been struck is a difficult empirical question, and not one that is answered by the slogans of the founders.
In The Executive Unbound, Adrian Vermeule and I argued that the Madisonian system of separation of powers has collapsed, and that the executive is mainly constrained by politics rather than law. The Obama administration has produced striking new examples–almost natural experiments, where it started by seeking a law from Congress then gave up and implemented the policy through executive fiat. First was the Dream Act, which would have legalized certain younger undocumented migrants. Congress refused to pass it, and Obama implemented it anyway by ordering ICE to comply with the rules that were never enacted.
And now it is climate. From the news sources I see, the EPA regulations to be announced Monday create the same kind of cap-and-trade system envisioned by the Waxman-Markey bill, which was also not enacted by Congress. The EPA regulations do not encompass as wide a range of pollution sources as the bill did, but the legal authority behind them should give EPA the power to issue additional regulations that do just that.
Or so I argue in Slate, provoked by Justice Stevens’ proposal to amend the Constitution so as to reverse various losses he suffered when he served on the Court. Whatever you think of Stevens’ arguments, amendment just isn’t going to happen. There is an interesting question how exactly to measure “amendability.” Here is a good paper on this topic by Tom Ginsburg and James Melton. It is nonetheless clear that the U.S. is an outlier.
From Justice Kennedy in Paroline v. United States:
1. A “court should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”
2. “The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role.”
3. A “court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.”
4. A court should “set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses.”
I found the Chicago-Harvard professors more persuasive than the Harvard-Harvard professors.
McCutcheon was a victory for gazillionaires, right? Yet what do we make of the headline of a striking article in Politico: Big donors fear shakedown after decision? (The article is dated April 2, not April 1.) And here are some choice quotations:
“I’m horrified, planning to de-list my phone number and destroy my email address,” said Ken Kies, who, along with his wife, has bumped up against the federal political contribution limits. “What I was really hoping for is a ban on lobbyists making contributions entirely.”
Podesta said for those donors, the new rule “eliminates an excuse that people have to say I’m done for the cycle and I can’t do anymore, which means that people who do max out will end up giving more money than they used to to candidates.”
“We were already getting drained before, now it’s another means to suck out more cash without any actual return on value,” said one GOP lobbyist.
“For the lobbying community, it increases the cost of doing business,” said David Rehr, a former association executive.
While Democrats publicly bashed the decision, they were far more positive in private. One top Hill Democrat suggested Democrats had larger number of donors, and they can now go back and ask these supporters for even more money.
Consider two models of campaign donation. In model 1, the donor gives a donation in return for a favor. McCutcheon improves the well-being of the donor in model 1 because the donor can give more donations and receive more favors in return. In model 2, the politician threatens the donor with a bad outcome (for example, delay in regulatory approval) unless the donor coughs up a donation. McCutcheon hurts the donor by giving politicians the power to make more threats and receive more donations in return. The difference between model 1 and model 2 is the difference between a bargain and extortion.
Which model is correct? Probably both describe some of the reality. Caro’s biography of LBJ provides a clear example of model 2 where LBJ threatened to delay a bank merger unless (if I recall correctly) the owner of the bank held off criticism of LBJ in a newspaper he also owned. The Politico quotes also support model 2 (though I suspect some of those quotes were tongue-in-cheek). But if model 2 were correct, it is hard to understand why Congress agreed to campaign finance limits in the first place. And it is hard to understand why the billionaires oppose donation limits, though it would not surprise me if people like McCutcheon himself, who espouse a crude libertarianism, never take the second step and ask how they fare if others are freed from the limits that frustrate them. Indeed, even under the more benign model 1, the lifting of donation limits can just lead to auctions in which the politician, who has quasi-monopoly power, can demand higher payments from those who seek favors. So while the donor still gets something of value for his money, he must pay more than in the past. Think of McCutcheon as a decision that imposes a tax on millionaires.